Meadows v Khan – wrongful birth: are additional unconnected disability costs recoverable?

In this post Vanessa Cashman of 12KBW discusses the recent decision of Yip J in Meadows v Khan [2017] EWHC 2990 (QB), a  case concerning the recoverability of additional costs arising out of a disability unconnected with the negligent failure to diagnose that led to a wrongful birth.

Facts

The Claimant, Mrs Meadows (“C”), claimed damages arising out of the wrongful birth of her son, Adejuwon (“A”).

A suffers from haemophilia and autism. The agreed facts were as follows:

1. C’s nephew was born with haemophilia. C wished to avoid having a child with haemophilia and so consulted her GP with a view to establishing whether she was a carrier of the gene.
2. Blood tests were undertaken but could not confirm whether C was a carrier. She would have required referral for genetic testing in order to ascertain this
3. However, D advised C that her blood tests results were normal. C was led to believe that any child she had would not have haemophilia.
4. A was born and diagnosed with haemophilia. C was then referred for genetic testing which revealed she was a carrier.
5. Had she been referred for testing prior to conceiving, she would have known she was a carrier. She therefore would have had foetal testing for haemophilia.
6. Such testing would have shown that the foetus was affected and C would have terminated the pregnancy.
7. A was later diagnosed as also suffering from severe autism, the extent of which meant that he was unlikely to ever live independently or be in paid employment in the future.
8. C was entitled to recover the additional costs arising out of A’s haemophilia diagnosis, as well as general damages for prolongation of the pregnancy.

The only issue for the Court was whether C could also recover the additional costs associated with A’s autism.

Yip J reviewed many of the wrongful birth authorities. In particular, she relied on Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 and Groom v Selby [2002] PIQR P18. In both of those cases, there was no direct link between the negligence and the disability.

In Parkinson the claimant had become pregnant following a failed sterilisation. Her son had been born with severe disabilities. In Groom the claimant would have undergone an early termination of her pregnancy had her GP diagnosed it. The child contracted salmonella meningitis during childbirth and suffered brain damage. In both cases the claimants were entitled to additional costs arising out of the disabilities, Parkinson on the basis that disability arising from genetic causes or events during pregnancy was foreseeable, Groom on the basis that, although the meningitis was “bad luck”, the disability flowed from the process of her birth.

The issue between the parties in this case was the scope of the duty of care, the assumption of responsibility and whether it would be fair, just and reasonable to hold D liable for the additional costs related to A’s autism. Foreseeability was not in issue.

The arguments

C argued that but for D’s negligence the pregnancy would not have continued. Therefore D is liable for all consequences of the pregnancy. (This was not a McFarlane case, as A was not healthy.) A’s autism was no less foreseeable than Parkinson’s learning disability or Groom’s meningitis.

D argued that C was only seeking to protect against a particular disability, haemophilia. She would have been quite happy to run the risks associated with any pregnancy. The autism did not fall within the kind of loss which D had a duty to prevent. Therefore it is not fair, just or reasonable to transfer those risks from parent to doctor.

The decision

Yip J considered that as a matter of simple “but for” causation, A would not have been born but for D’s negligence. C would therefore not have had a child with the combined problems of haemophilia and autism.

It was right that had C terminated the pregnancy, she would have gone on to have another. In that pregnancy, there remained the same risks that the child might be autistic. However, on the balance of probabilities that pregnancy would not have been affected by autism and it could not be said that it probably would have materialised in another pregnancy.

Further, it was not fair, just or reasonable to distinguish between a mother who would have wanted to terminate this pregnancy and the mother who would have wanted to terminate any pregnancy. C should not be in a worse position simply because she would have been happy to run the ordinary risks associated with another pregnancy.

There was a close analogy with Chester v Afshar [2005] 1 AC 309 in which the claimant would not have undergone an operation when she did, had she been warned of a risk, which subsequently eventuated. She still would have undergone the procedure but at another time. Although the risk was not altered, it was held that the claimant was entitled to damages.

By contrast, this was not a SAAMCO [1997] AC 191 situation; the analogy of the mountaineer (who has a knee injury and whose doctor negligently failed to advise him not to go mountaineering, following which an entirely unrelated injury is sustained) did not apply. In that instance, the risk that materialised had nothing to do with his knee. Whereas here the risk that materialised arose out of the continuation of the pregnancy.

Pregnancy is indivisible. It could not be said that if the advice given by D had been accurate, C would have had a child with autism but without haemophilia. The pregnancy only existed, in its combined state of disability, because of D’s negligence.

A distinction from Chester was that the risk that materialised was the risk of which the surgeon had failed to warn. Here, the focus of the duty was haemophilia and not autism. However, the purpose of the service was to provide C with necessary information so as to allow her to terminate a pregnancy afflicted by haemophilia. The scope of the duty extended to preventing the birth of A and all the consequences that brought.

There could be no basis on which this case should be distinguished from Parkinson and Groom. The autism, like the meningitis, was bad luck. There was no risk of the floodgates opening to claims of this nature; the coexistence of two disabilities will be rare.

Accordingly C could recover the associated costs of A’s autism in addition to those arising out of his haemophilia.

Comment

This is an interesting case which appears to have been correctly decided, doing no more than affirming the ratio in Parkinson and Groom. The point made by Yip J that the pregnancy was indivisible and that neither disability could have eventuated had A never been born is a good one. In those terms and applying ordinary causation principles, it is illogical to render D liable for one condition and not the other.

It might, at first glance, seem counterintuitive that C would not have been able to recover for the costs associated with A’s autism alone but has been able to when it is combined with the haemophilia. However, it is plainly correct that if A had not been born with haemophilia any subsequent disability would have had nothing to do with D’s negligence. That case would be truly analogous with the mountaineer’s knee. The fact that A also suffered from the very condition about which D was under a duty to correctly advise C makes all the difference.