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In this post Rebecca Khan, a Legal Support Assistant at Matrix Chambers, comments on the case of Khan v Meadows [2021] UKSC 21 – handed down on the 18th of June 2021. This appeal raised important questions about the application of the scope of duty principle in clinical negligence cases. The judgment is handed down together with the court’s judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20.

The Facts

The appellant, Ms Meadows, is the mother of a child with haemophilia and autism. Prior to her pregnancy, the appellant consulted her GP practice in 2006 to establish whether she carried the haemophilia gene. The appellant should have been referred to a haematologist for genetic testing. Instead, following blood tests, Ms. Meadows was negligently led to believe by the respondent Dr Khan, a general practitioner in the same practice, that she was not a carrier of the gene. As a result of this advice, and earlier consultations, Ms. Meadows was wrongly led to believe that any child she had would not have haemophilia.

Ms. Meadows became pregnant with her son Adejuwon in 2010, who was diagnosed with severe haemophilia shortly after his birth. Had Ms Meadows known that she carried the haemophilia gene, she would have undergone foetal testing for haemophilia while pregnant. This would have revealed the foetus was affected, and the appellant would then have chosen to terminate her pregnancy.

In 2015 Adejuwon was also diagnosed with autism, an unrelated condition. However Adejuwon’s autism made the management of his haemophilia more complicated. He is likely to be unable to manage his own treatment or administer his own medication. In itself, Adejuwon’s autism is likely to prevent him being in paid employment.

There is no dispute that Dr Khan is liable in negligence for the costs of bringing up Adejuwon attributable to his haemophilia. The issue in this case arises from the question of whether Dr Khan is liable for all costs related to Adejuwon’s disabilities arising from the pregnancy or only those associated with his haemophilia.

The judgments below

The High Court held that Dr Khan was liable for costs associated with both Adejuwon’s haemophilia and autism.

The Court of Appeal allowed Dr Khan’s appeal, finding her liable for costs associated with Adejuwon’s haemophilia only. It considered the scope of a defendant’s duty of care laid down in South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (“SAAMCO”) as determinative of the issue. In concluding that Dr Khan should be liable for a type of loss which did not fall within the scope of the their duty to protect Ms. Meadows against, the High Court judge had applied the “but for” causation test.

The Court of Appeal took the view that it was insufficient for the court to find that there is a link between the breach and the stage in the chain of causation, in this case the pregnancy itself, and thereafter to conclude that the appellant is liable for all the reasonably foreseeable consequences of that pregnancy. The High Court had referred to one link in the chain of causation depriving Ms. Meadows of the opportunity to terminate the pregnancy. The SAAMCO test requires the link to be between the scope of the duty and the damage sustained.

Supreme Court

Unanimously dismissing the appeal, the Supreme Court addressed the following issues:

  1. The legal issue of whether in a clinical negligence case the court should follow the approach of ascertaining the scope of a defendant’s duty of care laid down by the House of Lords in the SAAMCO test, and, if it should, how that approach is to be applied.

The Supreme Court applied a six stage model to analyse the place of the scope of duty principle in the tort of negligence [28]. The model served to demonstrate that the questions of factual causation and foreseeability cannot circumvent the questions which must be addressed in determining the scope of the defendant’s duty [30].

The appellant submitted that the scope of duty principle in SAAMCO does not apply in clinical negligence claims, and is only applicable in cases of pure economic loss [61]. The court could not accept this submission, as there is no principled basis for excluding clinical negligence from the ambit of the principle. Holding that the scope of duty in question must consider the “nature of the service which the medical practitioner is providing” in order to determine what risks “the law imposes a duty on the medical practitioner to exercise reasonable care to avoid” [63].

  1. Is the medical practitioner liable in negligence for the costs of bringing up the disabled child who has both conditions or only for those costs which are associated with the hereditary disease?

Applying the principles above, the court concluded that the losses relating to Adejuwon’s autism were outside the scope of Dr Khan’s duty of care [77]. Lord Leggatt considered the scope of duty principle’s application in this case to be straightforward. The only purpose of the appellants consultation was to learn if she carried the haemophilia gene. There was no finding that Dr Khan should or ought to have been aware of any fact which gave rise to a duty to advise on any other matter [84].

As the House of Lords made clear in SAAMCO, a professional whose duty is limited to advising on a particular subject matter is not responsible for all foreseeable adverse consequences to the claimant of giving negligent advice. They are only liable for losses which are “within the scope” of the adviser’s duty of care. In this case, the subject matter of the respondent’s advice was limited to whether the appellant carried the haemophilia gene and therefore only losses causally connected to that subject matter are within the scope of the their duty to the appellant [98].

Comment

This case highlights an important distinction in wrongful birth cases between medical services intended to prevent the birth of any child, and services advising on a specified risk connected to the birth.

The judgment serves as a reminder that the simple ‘but-for’ test is not always a sufficient condition for the imposition of liability, and only forms a precondition to legal causation. The importance of the scope of duty cannot be ignored, and has potential to play a significant role in limiting the defendant’s exposure to liability.

 

Rebecca Khan is a Legal Support Assistant at Matrix Chambers.