Overview:
On 18 June 2021, the Supreme Court handed down its eagerly anticipated judgment in a clinical negligence case, Khan v Meadows [2021] UKSC 21. The case concerned the scope of duty and damages recoverable in a ‘wrongful birth’ case.
In particular, the Supreme Court considered the application of the scope of duty principle in South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (“SAAMCO”) to clinical negligence cases and also the law of negligence generally.
The judgment should be read in conjunction with the Supreme Court’s recent decision in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20, where the same seven justices also examined the scope of SAAMCO in a financial context.
The facts:
The Claimant wished to avoid having a child with haemophilia, following the birth of her nephew who was a haemophiliac. She visited the GP surgery and underwent blood tests with a view to finding out if she was a carrier.
Crucially, the blood test could only demonstrate whether the Claimant herself had the condition, rather than whether she was a carrier (which could only be established by genetic testing). Despite this, she was negligently led to believe that she was not a carrier any child she conceived would not have the condition.
She later became pregnant with her son, Adejuwon, who was sadly diagnosed as having severe haemophilia and must be monitored constantly. Subsequent genetic testing confirmed that Ms Meadows was in fact a carrier of the gene.
It was not disputed that if the GP referred Ms Meadows for genetic testing, tests would have revealed she was a carrier of the gene before she became pregnant. This would have led her to undergo foetal testing in 2010 when she eventually became pregnant. Had she been so informed, Ms Meadows would have terminated her pregnancy. Therefore, it was admitted that Dr Khan was liable in negligence for the additional cost of bringing up a son with haemophilia.
However, in December 2015, Adejuwon was diagnosed as having unrelated autism and Ms Meadows claimed to recover the additional costs of raising a child with autism, in addition to the costs associated with the haemophilia.
The question was therefore whether Dr Khan was liable for all costs related to Adejuwon’s disabilities arising from the pregnancy, or only those associated with his haemophilia.
The outcome would have a significant impact on the amount recoverable by the Claimant; damages were agreed at £1.4 million if the Defendant was responsible for the haemophilia only, and £9 million if also liable for the autism.
Background to the Appeal:
The High Court held Dr Khan was liable for the costs associated with both the haemophilia and the autism; Yip J applied ‘but-for’ causation principles to reach this conclusion.
The Court of Appeal (Ryder LJ, Senior President of Tribunals, Hickinbottom and Nicola Davies LJJ) allowed the Defendant’s appeal, reducing the award of damages to £1.4m. Davies LJ held that Yip J applied wrong test and instead regarded the scope of duty principle in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 (hereafter referred to as ‘SAAMCO’) as determinative in this case.
SAAMCO was a professional negligence case involving the negligent valuation a property. The principle which emerged from SAAMCO is that a defendant is not liable in damages in respect of losses of a kind which fall outside the scope of his duty of care (‘the scope of duty principle’).
In SAAMCO, Lord Hoffman distinguished between a tortfeasor under a duty to provide accurate information vs. somebody with a duty to advise on a specific action to take. The former is only responsible for the consequences of that information being wrong. Per Lord Hoffman:
“The real question in this case is the kind of loss in respect of which the duty was owed… … Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.” (paragraphs 14-18).
Applying the above, Davies LJ (with whom Hickinbottom LJ and the Senior President of the Tribunals agreed) concluded that the purpose of the doctor’s advice was simply to “whether the respondent was a carrier of the haemophilia gene. It did not extend beyond that”. The advice was not related to the broader issue of whether she should become pregnant. Therefore, “the scope of the appellant’s duty was not to protect the respondent from all the risks associated with becoming pregnant and continuing with the pregnancy” and the GP was only liable for the risk of the Claimant giving birth to a haemophiliac.
The Supreme Court:
The Supreme Court unanimously dismissed Ms Meadows’ appeal and held that Dr Khan was liable only for the losses which fell within the scope of the duty to advise on whether Ms Meadows was a carrier of the haemophilia gene; not the losses associated with the autism.
Contrary to the Appellant’s arguments, the Court held there was no principled basis for confining the scope of duty principle in SAAMCO to pure economic loss in commercial contexts, nor excluding clinical negligence cases from its ambit: “the principle is a general principle of the law of damages. It is therefore not relevant to its applicability whether a claim is characterised as one for economic loss consequent upon a physical injury or as pure economic loss” (para 62)
Whilst the unrelated autism was a factual and foreseeable consequence of the negligence, the Court held that factual causation and foreseeability are “in no sense determinative of the question of the scope of the duty of care”. Instead, scope of duty “depends principally upon the nature of the service which the defendant has undertaken to provide to the claimant”. One should therefore ask - “what is the risk which the service which the defendant undertook was intended to address?”.
Six-step model:
At paragraph 28, the Supreme Court set out a helpful model for assessing the scope of duty principle within the tort of negligence. The following six questions should be asked:
“(1) Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question);
(2) What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question);
(3) Did the defendant breach his or her duty by his or her act or omission? (the breach question);
(4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question);
(5) Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question); and
(6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)”
The Court recognised that the second (scope of duty question) and fifth question (nexus question) can be readily answered together.
Applying the six-step model:
Applying the six-step model, the Court concluded firstly that the costs of caring for a disabled child are actionable (question 1).
Secondly, the scope of duty question (question 2) involves identifying the purpose for which the advice or information was given: “what was the risk which the advice or information was intended and was reasonably understood to address?” (para 41). Here Ms Meadows approached the GP for a specific purpose (to know if she was a carrier of the haemophilia gene) and did not engage him to advise on the risks of pregnancy generally.
Thirdly, Dr Khan admitted breach of duty (the breach of duty question).
Fourthly, applying the factual causation question (question 4), there was a causal link between Dr Khan’s negligence and the birth of Adejuwon.
Fifthly, the Court held that the answer to the scope of duty question (above) gave a straight-forward answer to the nexus question. The mechanism for addressing to nexus question is to ask ‘what the outcome would have been if the doctor’s advice had been correct and the mother had not been a carrier of the haemophilia gene?’ (the ‘SAAMCO counter-factual’). The undisputed answer is that the child would still have been born with autism. The law did not impose on Dr Khan any duty in respect of an unrelated risk which may arise in any pregnancy (paragraph 68).
Sixthly (the legal responsibility question) given the purpose for which the doctor was engaged, the law imposed on Ms Meadows responsibility for the foreseeable consequences of the birth of a boy with haemophilia, and in particular the increased cost of caring for a child with haemophilia (paras 67-68).
Conclusion:
Khan v Meadows will be of significance importance in ‘wrongful birth’ cases, however the Supreme Court did not rule out the wider application of the scope of duty/nexus test beyond the provision of advice or information (for example, to negligent treatment cases). Therefore, the impact of the case is potentially wide-ranging.
Elinor Watts
Legal Assistant to Gerard McDermott QC
24 June 2021
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