A German national who broke his neck while a patient in a Bermuda hospital will be able to appeal a court's rejection of his negligence claim.

If he proceeds to win his case, Thomas Hofer could sue the Bermuda Hospitals Board (BHB) for more than $5 million.

The Court of Appeal gave the former chef leave to appeal a Supreme Court judgment which had struck out his case due to excessive delay.

Mr. Hofer broke his neck a day after being admitted to St. Brendan's Hospital, now the Mid-Atlantic Wellness Institute (MWI).

He allegedly fell off a bed and hit his chin on the floor.

Although he was taken that same day to King Edward VII Memorial Hospital, he was not diagnosed with a broken neck until the next day.

Mr. Hofer was admitted to St. Brendan's for a paranoid psychiatric condition on February 11, 1994, after walking into the Butterfield Bank on Front Street, claiming he was a killer.

After his injury he was classed as a quadriplegic and was eventually flown back to his native Bavaria on April 24, 1994. He is now in the care of the German state.

Mr. Hofer proceeded to issue a writ against BHB for negligence and damages, in February 1997. The claim included costs for ongoing care and was expected to exceed $5 million.

On April 22, 2008, however the defendants in the civil case (BHB) applied for its dismissal, due to delays. This was upheld on June 26, 2008.

Judge Geoffrey Bell found the delay in proceedings "unquestionably both inordinate and excessive", and "inexcusable".

Lawyers for BHB said they had sent letters to Mr. Hofer's lawyers over a two-year period from 2006-7, warning they would issue proceedings to strike the case out "for want of prosecution".

They said they never received a reply. They also argued the case was now prejudiced due to the death of one witness, Mr. McQueen, in 2005, and its failure to locate the other, Alan Bentham.

The Court of Appeal's written ruling on Thursday however, said Mr. Bentham had since been traced, to Lancashire in the UK.

Further, the judges said, detailed statements from Mr. McQueen and Mr. Bentham following the accident were now in the hands of the BHB legal team.

Ruling in favour of Mr. Hofer, Justice Sir Anthony Evans said: "The defendants (BHB) fail to establish in the present case that a fair trial of the issues is no longer possible, or that they have suffered serious prejudice by reason of the Plaintiff's delay."

Appeal Court President, Justice Edward Zacca said he would also allow Mr. Hofer's appeal.

Justice Sir Murray Stuart-Smith however, dismissed the appeal.

He said with the exception of an 18-month period between February 1998 and July 1999, "the entire delay in this case is the fault of the claimant's attorney".

Michael Scott, Government Minister of Energy, Telecommunications and E-Commerce and a former Health Minister, was Mr. Hofer's former legal representative.

As from January 2010 he is now being represented by Larry Mussenden.

Mr. Justice Stuart-Smith said: "It was scandalous and all the more astonishing in the light of the defendant's warnings that if the matter was not progressed, an application to strike out for want of prosecution would be made."

He said as a result, "there is a serious risk that it is no longer possible to have a fair trial".

The Court of Appeal granted Mr. Hofer leave to appeal by a majority.