Khan v Meadows [2019] EWCA Civ 152

A woman had a child with haemophilia and autism after her GP negligently advised she was not a carrier of the haemophilia gene. The court held the GP was only liable for costs related to haemophilia, as autism was outside the scope of duty.

Facts

The claimant, Ms Meadows, was concerned that she might be a carrier of the haemophilia gene, as there was a history of it in her family. She consulted her general practitioner, Dr Khan, to find out her risk. Dr Khan negligently arranged for a blood test only, rather than the required genetic testing. Based on the incorrect blood test result, Dr Khan advised Ms Meadows that she was not a carrier of the gene. Reassured by this advice, Ms Meadows became pregnant and gave birth to a son, Adejuwon. Adejuwon was born with severe haemophilia. He was also later diagnosed with autism. The autism was unrelated to the haemophilia or the GP’s negligence. Ms Meadows brought a claim for clinical negligence to recover the additional costs of raising a child with both haemophilia and autism, arguing that but for the doctor’s negligent advice, she would have undergone foetal testing and terminated the pregnancy, and therefore Adejuwon would not have been born.

Issues

The central legal issue was the extent of Dr Khan’s liability. Was the doctor liable only for the foreseeable financial losses resulting from the child having haemophilia (the condition she specifically asked about), or was she also liable for the significant additional costs associated with raising a child with autism, a coincidental and unrelated disability? This required the court to determine the ‘scope of duty’ owed by the doctor and apply the principle established in South Australia Asset Management Corp v York Montague Ltd (SAAMCO).

Judgment

The Court of Appeal dismissed the claimant’s appeal, upholding the High Court’s decision. The court unanimously held that the doctor’s liability was limited to the costs associated with the child’s haemophilia and did not extend to the costs of his autism. The judgment rested on a careful application of the SAAMCO scope of duty principle.

Reasoning of the Court

The leading judgment was given by Nicola Davies LJ. She distinguished between a duty to advise on a specific risk and a duty to prevent a particular outcome (e.g., pregnancy). The purpose of Ms Meadows’ consultation was to ascertain the risk of her child having haemophilia. Dr Khan’s duty was therefore limited to providing accurate information on that specific risk.

The scope of the duty of care owed by the respondent to the appellant was to advise on her carrier status for haemophilia and the risk of her giving birth to a child with haemophilia, it was not to advise her on the risks of giving birth to a child with autism. The ‘but for’ test is not the appropriate test for legal causation. The appropriate test is the scope of duty test as propounded in SAAMCO. Applying the SAAMCO principle, the respondent is not liable for the costs associated with the unconnected risks of childbirth which would have been present in any event, namely the risk of the child having autism.

Underhill LJ, in a concurring judgment, further clarified the application of the SAAMCO principle, categorising the case as a pure ‘information’ case, not an ‘advice’ or ‘no-transaction’ case.

The present case is, straightforwardly, an ‘information’ case. Dr Khan was asked for a specific piece of information – whether the Appellant was a carrier of the haemophilia gene. She was not being asked for advice about whether to get pregnant. It was the Appellant who would make that decision, taking account of the information which the doctor gave her but also of a whole range of other personal and family considerations. In such a case the professional is, a la SAAMCO, liable only for the consequences of the information being wrong.

The court reasoned that the risk of a child being born with autism was a random misfortune and one of the background risks of any pregnancy which the claimant would have accepted had she chosen to proceed. The doctor’s negligence was not the legal cause of the losses flowing from the autism, even though it was a ‘but for’ cause of the child’s birth.

Implications

The decision provides a significant clarification on the application of the SAAMCO principle in the context of clinical negligence and ‘wrongful birth’ claims. It reinforces that in cases where a professional provides specific information, their liability is confined to the consequences of that information being inaccurate. A claimant cannot recover damages for all adverse outcomes that would not have occurred ‘but for’ the negligence. The loss must fall within the scope of the duty the professional undertook. This ruling curtails the potential for defendants to be held liable for all unrelated misfortunes that occur following a negligent act or omission, thereby placing a boundary on the extent of recoverable damages in such professional negligence cases.

Verdict: The appeal was dismissed.

Source: Khan v Meadows [2019] EWCA Civ 152