The Supreme Court handed down its decision in this case on Friday, discussed by Ted Cunningham in this post. Helen Waller has previously provided a comprehensive summary of the factual and legal background to this case, which is available here.
For present purposes, the opening paragraph of the Supreme Court’s judgment provides a concise introduction to the key issue at play:
“A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the results of those tests negligently fails to advise her that she needs a genetic test to establish whether she is a carrier of the relevant gene. In fact, she is a carrier of the disease. Several years later, she gives birth to a baby boy who sadly not only suffers from the hereditary disease but also has an unrelated disability. 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?”
Dismissing the appeal, the Supreme Court unanimously held that the costs associated with the second unrelated disability fell outside the scope of Dr Khan’s duty of care. The ruling makes clear that, when considering the scope of a doctor’s duty, the key issue is the purpose of the advice sought and the specific risks and foreseeable losses that flowed from them.
Although all of the judges reached the same final conclusion, the approaches adopted varied slightly. Unusually, three separate judgments were given. This blog will summarise each in turn.
The leading judgment of Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black and Lord Kitchen agreed)
Whilst their Lordships made clear that this was not to be an exclusive or comprehensive approach, it was suggested the scope of a party’s duty may be clarified by considering the following six questions:
- Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question);
- 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);
- Did the defendant breach his or her duty by his or her act or omission? (the breach question)
- Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question);
- 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);
- 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 (including novus actus interveniens) in relation to it, 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);
Within their judgment, Lord Hodge and Lord Sales made clear that these questions need not necessarily be asked in sequence or individually. For example, the scope of duty and duty nexus questions may often be considered in tandem. In applying the six-question approach to the facts of this case, the majority of the Supreme Court found as follows:
- The economic cost of caring for a disabled child was clearly actionable;
- Ms Meadows approached Dr Khan for a specific purpose, namely to discover if she was a carrier of the haemophilia gene. In the circumstances, Dr Khan owed her a duty to take reasonable care to give accurate information or advice when advising her whether or not she was a carrier of that gene. Accordingly, the scope of her duty was limited to the specific risk of giving birth to a child with haemophilia;
- Breach of duty had been admitted;
- Whilst there was a causal link between Dr Khan’s breach and the birth of the child, in that Ms Meadows did not have the opportunity to terminate the pregnancy in which the child had both haemophilia and autism, that was not relevant to the scope of Dr Khan’s duty;
- Therefore, the law did not impose any duty on Dr Khan in relation to unrelated risks which may arise in any pregnancy. Their Lordships considered that Dr Khan should only be liable for the costs of the child’s care which were caused by haemophilia;
- There was no question of remoteness, and thus Dr Khan’s responsibility extended to the foreseeable consequences of the increased cost of caring for a child with haemophilia.
Whilst Lord Burrows agreed with his fellow judges’ decision to dismiss the appeal, he went one step further than Lords Hodge and Sales, and suggested that the tort of negligence involved seven main considerations:
- Was there a duty of care owed by the defendant to the claimant? (the duty of care question)
- Was there a breach of the duty of care? (the breach, or standard of care, question)
- Was the damage or loss factually caused by the breach? (the factual causation question)
- Was the damage or loss too remote from the breach of duty? (the remoteness question)
- Was the damage or loss legally caused by the breach of duty? (the legal causation, or intervening cause, question)
- Was the damage or loss within the scope of the duty of care? (the scope of duty question)
- Are there any defences? (the defences question)
Lord Burrows opined that the present case chiefly concerned the sixth question i.e. the scope of duty. In doing so, he applied the SAAMCO principle to the facts, and found that the autism losses fell outside of the scope of Dr Khan’s duty. His reasons for this finding were as follows (as per Para 77):
- The central issue was the purpose of the advice. Ms Meadows approached the GP for the specific purpose of discovering whether or not she was a carrier of haemophilia. Her consultation was not to ascertain the general risks of pregnancy (including the risk of autism);
- Accordingly, it is fair and reasonable to hold Dr Khan liable for the risk of the child being born with haemophilia. However, the risk of autism was one borne by the child’s mother, as would be the case for any mother considering pregnancy;
- Applying the SAAMCO counterfactual test as a cross-check: would the claimant have suffered the same loss had the information / advice been true? In terms of the autism losses, Lord Burrows held that it would. Had Dr Khan been correct that Ms Meadows was not a carrier of the haemophilia gene, the mother would nevertheless have given birth to an autistic child.
Therefore, on essentially the same basis as Lord Hodge and Lord Sales, Lord Burrows found that the autism-associated losses were not within the scope of Dr Khan’s duty of care and dismissed the appeal.
However, Lord Burrows went one stage further in his analysis. He suggested that, were the appeal to be allowed, it would follow that those losses associated with autism would theoretically be recoverable even if the child had not been born with haemophilia. This point was not developed further, and is unconvincing.
Finally, Lord Leggatt provided his own judgment, although agreeing that the appeal should be dismissed. His Lordship considered that the scope of duty principle could be applied straightforwardly to this case. At paragraph 84 he held:
“On the agreed facts, the only purpose for which the claimant, Ms Meadows, consulted the general practice of the defendant, Dr Khan, was to find out whether she was carrying a gene for haemophilia…In this case…there is no finding that the defendant was or ought to have been aware of any fact which gave rise to a duty to advise the claimant about anything other than whether she was carrying a haemophilia gene. Accordingly, the duty owed by the defendant was limited to taking care to give the claimant accurate advice on that matter.”
Lord Leggatt opined that there must be a causal connection between the subject matter of a professional’s advice and the claimant’s loss; it would not be fair or reasonable to impose liability on a professional adviser for the adverse consequences which the advisee would have suffered in any event. There is no good reason to treat an adviser who is negligent on a particular matter as if they had a responsibility to protect the claimant for unrelated risks. In the present case, Dr Khan should only be held responsible for the foreseeable adverse consequences that resulted from the matter upon which she gave negligent advice i.e. the fact that Ms Meadows was carrying a gene for haemophilia. However, Lord Leggatt suggested that, had the child’s haemophilia caused or made it more likely that he would have developed autism, the associated costs thereof would have fallen within Dr Khan’s duty of care.
The judgment highlights the difference between the factual and legal consequences of an act or omission:
“The product of this analysis assists in the determination of the extent of the claimant’s entitlement to damages in accordance with the principle that the law in awarding damages seeks, so far as money can, to put the claimant in the position in which he or she would have been absent the defendant’s negligence…The scope of duty principle…requires the court…to distinguish between what as a matter of fact are consequences of a defendant’s act or omission and what are the legally relevant consequences of the defendant’s breach of duty. A defendant’s act or omission may as a matter of fact have consequences which, because they are not within the scope of his or her duty of care, do not give rise to liability in negligence” (para 58)
Whilst the individual approaches differed (although not in any fundamental way), the Supreme Court has decisively found that a doctor is not liable for the additional costs associated with a disability that fell outside of the specific scope of his or her duty. The analyses were not restricted to the issue of wrongful births alone and neither will the consequences of this judgment be.
Although their Lordships impressed upon the Court that the approach should not be treated as definitive, the analysis of Lord Hodge and Lord Sales will likely be considered persuasive across the full spectrum of clinical negligence cases.
Most significantly, in considering the principle of the scope of duty in a clinical negligence setting, all three judgments highlight the singular centrality of the purpose of the advice sought.