Supreme Court Revisits Wrongful Birth Claims: an extended look — Robert Kellar QC and Owain Thomas QC

24 June 2021 by ,

In Khan v. Meadows [2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.

The Facts

The Claimant mother was alerted to a risk that she may carry the haemophilia gene. Haemophilia is a genetic condition in which the ability of the blood to coagulate is severely reduced. She wished to avoid having a child with that condition. She therefore consulted her GP to advise her on her haemophilia risks. Her GP, Dr. Khan, failed to arrange for her to undergo genetic testing. Instead, it was arranged for her to have blood tests which could not establish whether she was a carrier. She was therefore falsely reassured that she would not have a child with haemophilia.

She subsequently gave birth to a child who suffered not only from haemophilia but also from autism. It was admitted by Dr. Khan that she was liable to compensate Mrs. Meadows for the additional costs associated with her child’s haemophilia. However, Dr. Khan denied that she was liable to compensate the claimant for the much more substantial costs of bringing up a child with autism.

The Competing Arguments

The High Court held that the Defendant was liable for the costs of both autism and haemophilia on the basis that the issue of the extent of recovery was a question of causation. After all, it had been accepted that “but for” the negligent advice, the child would not have been born and the Claimant would not have incurred any of the costs associated with bringing up a child with autism. That decision was reversed by the Court of Appeal.

The Defendant’s argument, accepted by the Court of Appeal, was that the scope of the GP’s duty was limited to advising about the risk of haemophilia. That was the only purpose of the consultation. It followed that Dr. Khan owed no duty of care in relation to risks arising from having a child with autism.

On appeal to the Supreme Court, the Claimant (represented by Philip Havers QC of 1 Crown Office Row) argued that it was unjust to deprive her of compensation for autism related costs. Liability should be imposed because: a) her child’s birth would not have happened but for the GP’s error as Mrs. Meadows would have terminated the pregnancy on learning that her child carried the haemophilia gene; and b) it had been agreed between the parties that the possibility of having a child with autism was foreseeable.

The “Scope of Duty”: 6 Questions

The Supreme Court observed that the Claimant’s submissions raised questions of (i) the role which factual “but for” causation, foreseeability and remoteness of damage performed in the analysis of a claim for clinical negligence and (ii) how the question of the scope of the defendant’s duty fitted into this analysis [23].

The Court held that a helpful model for analysing  the place of the scope of duty principle in the tort of negligence, and the role of other ingredients of the tort, consisted of asking the following questions in sequence [28] (emphasis added):

(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)

(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 (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)

Application of this analysis gives the value of the claimant’s claim for damages in accordance with the principle that the law in awarding damages seeks, so far as money can, to place the claimant in the position he or she would have been in absent the defendant’s negligence.

The Court held that this analysis shows that determining “but for” causation and “foreseeability” in favour of the Claimant did not circumvent the questions that must be asked in relation to the Defendant’s duty [30]. The answer to this case turned upon the second, fourth and fifth questions (highlighted above). It followed that even if having a baby with autism was a foreseeable consequence of the breach and would have been avoided with reasonable care, the Claimant was nonetheless not entitled to damages for that “loss”.

Scope of Duty: An Established Principle

The Court held that it was an “established principle” that the law addresses the nature and extent of the defendant’s duty in determining liability for damages. A defendant was not liable for damages in respect of losses which fell outside the scope of his duty of care. It was often helpful to ask the scope of duty question before turning to questions of breach of duty and causation.

The correct question was: “what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?”. When the Court asks the scope of duty question in the context of cases about the provision of advice or information the Court seeks to identify the purpose for which the advice was given. The Court asks: “what was the risk which the advice or information was intended or reasonably understood to address?”.

In the present case, the purpose of the consultation was to put Ms Meadows in a position to enable her to make an informed decision about having a child with haemophilia. Dr. Khan owed a duty to take reasonable care to give accurate information or advice when advising her whether she was a carrier of that gene. Crucially, the service provided by Dr. Khan was concerned with a very specific risk: the risk of giving birth to a child with haemophilia.

Factual “But For” Causation Insufficient

The Supreme Court emphasised that whilst proof of factual causation was an element of the tort of negligence it was not a “sufficient condition” for the imposition of liability. It was also necessary to establish “legal causation” [44-45]. The “but for” test was also open to criticism because it excluded the “common sense approach” favoured by the common law and because it implied (incorrectly) that value judgments should have no role in the assessment of causation [46].

The correct approach was 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 … [58]

On the facts of the present case, Ms. Meadows lost the opportunity to terminate her pregnancy. Thus there was a “but for” causal link between Dr. Khan’s mistake and the birth of the Claimant’s child. However, that was not by itself sufficient to establish liability because it was “not relevant to the scope of Dr. Khan’s duty” [68].

The “Duty Nexus” Question

The Court observed that in many cases it would be obvious that there was a sufficient nexus between the harm for which damages were claimed and the scope of a defendant’s duty. For example, where a car collides with a pedestrian, it was obvious that the car driver owed a duty to avoid inflicting physical injury and the economic loss consequent upon his injuries [47].

However, in the present case the answer to the scope of duty question pointed straightforwardly against liability. The law did not impose a duty upon Dr. Khan in relation to risks unrelated to haemophilia, including autism, such as might arise in any pregnancy [68]. It followed that Dr. Khan was liable only for costs associated with the child’s haemophilia.

One way of testing whether there was a sufficient nexus between the duty of care and the claimant’s loss was to ask the following question: what would the claimant’s loss have been if the information which the defendant in fact gave had been correct? This question was referred to as the “SAAMCO counterfactual”, having been posed by the House of Lords in the “SAAMCO” case: [1997] AC 101. If the same loss would have been suffered in any event, assuming the same decision by the recipient of the advice, then the loss was not attributable to the advice being wrong.

If one asked what the outcome would have been if Dr. Khan’s advice had been correct — and Mrs. Meadows had not been a carrier of the haemophilia gene — the answer was clear.  Her child would have been born with autism in any event. Therefore the child’s autism could not be said to be attributable to Dr. Khan’s advice being wrong [68].

The Court emphasised that it was not always necessary to for the Court to pose this question. In some circumstances the “scope of duty” question may identify the fair allocation of risk between the parties without using the counterfactual [53].

The Views of the Minority

There are two judgments from Lord Burrows and Lord Legatt concurring in the result. Both make reference to the accompanying case of Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. Both take what is a more conservative approach than Lords Hodge and Sales and prefer to limit the ruling to an application of the SAAMCO principle to the particular context of professional services and as a principle which limits the scope of a Defendant’s liability for factually caused loss on the basis of whether it falls within the scope of the duty or not [71]. This moves away from the six questions as being a template for the law of negligence generally [78-9].

Lord Burrows decided the case on the basis that while factual and legal causation were made out, the “autism losses” fell outside the scope of the duty of care because the Claimant had not sought (or received) any advice about autism, which was a general risk of pregnancy, therefore the risk of the baby having autism cannot fairly be allocated to the doctor and the Claimant would have suffered the same loss even if the haemophilia advice (that she was not a carrier) had been correct [77].

Lord Legatt also preferred to avoid and “excursus” on the law of negligence generally [96] and an analysis based on a “sufficient nexus” between the loss and the duty [97], instead deciding that the duty was to avoid losses connected with haemophilia [91-92] and because the autism was not caused by the haemophilia the autism damage was not caused by the breach of duty [93]

Comment

One preliminary point is that the SC affirmed that compensation is available in principle in cases of wrongful birth for the costs of bringing up a disabled child [74 (iv) and 86].

However, the Court’s decision has other important consequences for clinical negligence litigation and the law of tort generally. In cases about negligent medical advice or informed consent, it is not sufficient for a claimant to establish that – with competent advice — they would have made a different decision about their treatment or care. A claimant must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care. If the harm suffered was not one of the specific risks that was “intended or reasonably understood” to be addressed by the defendant’s advice then the claim will fail.

In the authors’ view, there is likely be mixed response to this judgment. Some will welcome its contribution to coherence and consistency in the law of tort. The approach to the recovery of damages in clinical negligence has been brought firmly into line with that which applies in commercial cases about pure economic loss. Others might argue that a more flexible and open textured approach should have been permitted in clinical negligence litigation. Unlike in the commercial context, negligent advice may vitiate a patient’s informed consent to medical treatment. This has implications for a patient’s autonomy and their right to make important choices about their body. The law of negligence has an important role in protecting that autonomy (see Montgomery [2015] UKSC 11). This feature has been used previously by the House of Lords to justify a different approach to causation in cases about informed consent, albeit in very limited circumstances: see Chester v. Afshar [2004] UKHL 4. The latter decision did not feature in the Supreme Court’s judgment although it featured prominently in the decisions of the Courts below.

It might be wondered whether the rule in Chester v. Afshar can stand with the analysis of the SC in this case[1]. In that case, a Claimant who was not warned of a particular risk of surgery (cauda equina syndrome) and would have had the surgery at later date even if she had been warned of the risks, recovered damages on the footing that she would have postponed the surgery and thus would not have suffered the (very small) risk had she had the procedure at another time. This was on the basis that the Court considered that even though the Defendant’s conduct did not, overall, expose her to a greater risk of the damage than she would have been exposed to anyway, she should nonetheless be compensated because, the risk which eventuated was the very thing which she should have been told about.

Given that the Defendant did not owe the Claimant in Chester a duty to protect her from the risks of the procedure (only to tell her about them (question 2)) and that she would have had the procedure at a later date anyway it might be argued that damage arising from such risks was outwith the scope of the Defendant’s duty (Question 5). The relevant question, applying the SAAMCO counterfactual [see 53 and 94], was as follows: “What would Ms. Chester’s loss have been if the information which she had been given about the risk of cauda equina had been correct?” The answer is that Mrs. Chester would have undergone the same surgery with precisely same risks in any event, albeit at a later date. Providing Mrs. Chester with the correct information would not have diminished the risks in any way. Therefore, Mrs. Chester’s injuries were not attributable to the failure to advise her about the risks[2].

The alternative argument is that the specific nature of the risk of injury was not disclosed to Mrs. Chester and the fact that that was the risk which eventuated, still serves as a basis for finding the loss to be within the “scope of the duty”. How Chester v. Afshar is to be reconciled with the Supreme Court’s latest decision therefore remains to be seen.

More generally, the majority’s decision strongly affirms the “scope of duty” principle as an anterior “legal filter” in all negligence claims. It applies at an early stage of the analysis being “anchored in the question as to the defendant’s duty of care” [59]. It is also separate from principles of causation and remoteness which apply at a later stage in the analysis. In the authors’ view, the decision in Khan is likely to give rise to further litigation in which the limits of the “scope of duty” principle are mapped and clarified by the Higher Courts.

Robert Kellar QC and Owain Thomas QC are barristers at 1 Crown Office Row.

Philip Havers QC, also of 1 Crown Office Row, represented the Claimant in this case. He was not involved in the writing of this post.


[1] Chester has been distinguished in other areas of negligence including professional negligence on the footing that a special rule might be justified in cases of clinical negligence but the refusal of the SC in Meadows to sanction any difference in principle between clinical negligence and other professional negligence cases in terms applying SAAMCO throws such reasoning into doubt.

[2] Proof of “but for” causation , without proof that the breach of duty increased the risk of injury  is not sufficient to establish causation in law: see Chester and now Khan [44-46].

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