The judgment of the Supreme Court in Khan v Meadows [2021] UKSC 21 concerns the issue of whether factually caused loss is within the scope of the duty of care in negligence, i.e. the SAAMCO principle. It was heard by an expanded panel of the Supreme Court and heard with the case of Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20.
The Claimant gave birth to a child with haemophilia and autism. The conditions were unrelated; there was no causal connection between the two. The haemophilia was a hereditary condition passed to the Claimant’s son because the Claimant carried the hereditary haemophilia gene. Both conditions have a significant effect upon the Claimant’s son’s life. In particular, the Claimant’s son’s autism is likely to prevent him from living independently or being in paid employment.
Several years earlier the Claimant had consulted her GP to establish whether she carried the hereditary haemophilia gene. The test was conducted negligently by the GP, with the outcome that the Claimant was incorrectly reassured that any child she might have would have not haemophilia. If the Claimant had known she carried the gene, she would have undergone foetal testing for haemophilia when pregnant and would have terminated the pregnancy when it was revealed her son had haemophilia.
The issue on appeal was whether the GP was liable to compensate the Claimant for the costs associated with her son’s autism. Her GP admitted liability to compensate the Claimant for the additional costs incurred by the Claimant associated with her son’s haemophilia: £1.4 million.
The Claimant’s contention was that, if the GP had performed her role non-negligently, her son would never have been born. The GP should be liable for the associated costs of the autism too, which in total amounted to £9 million inclusive of interest.
The GP’s contention was that the costs associated with the Claimant’s son’s autism fell outside the scope of the GP’s duty of care, such that liability should be limited to the costs associated with the Claimant’s son’s haemophilia.
Yip J at first instance agreed with the Claimant. The Court of Appeal overturned that decision and found that the GP was only liable to compensate the Claimant for the costs associated with the Claimant’s son’s haemophilia.
Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black, and Lord Kitchen agreed) gave the leading judgment. They found for the GP. The costs of autism were not within the scope of the GP’s duty of care. They reached this decision in three steps.
First, their Lordships analysed the conceptual framework of the tort of negligence and sought to place the issue of scope of duty within that framework. They divided the tort of negligence into six questions: (1) the actionability question; (2) the scope of duty question; (3) the breach question; (4) the factual causation question; (5) the duty nexus question; and (6) the legal responsibility question: [28].
Second, Lords Hodge and Sales expanded upon the second and fifth questions. They held that in addressing the scope of duty question in the context of the provision of advice or information, the court seeks to identify the purpose for which that advice or information was given: [41]. As for the duty nexus question, the court is required to identify the extent of the loss falling within the defendant’s responsibility: [52].
Third, the analysis was applied to the facts. Yip J had found that the purpose of the GP’s service was not to prevent the Claimant from having any child but to prevent her having a child with haemophilia: [17]. The GP had not undertaken for the progression of the pregnancy; she had undertaken only to provide information or advice in relation to a specific risk in pregnancy: [65].
This led to the conclusion that the GP is liable only for the costs associated with haemophilia.
Patrick Tomison, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:
The Supreme Court’s judgment has both academic and practical interest.
On the practical side, the judgment confirms that the SAAMCO principle will be applied in the clinical negligence context. The ‘wrongful birth’ and ‘wrongful conception’ cases of Parkinson v St James Seacroft University Hospital NHS Trust and Groom v Selby were distinguished on the basis that the object of the service undertaken in those cases was to prevent the birth of any child. Therefore, if presented with a case with a similar fact pattern, it will be important to analyse the purpose of the allegedly negligent service in order to establish the scope of duty and likely compensation payable.
On the academic side, the leading judgment provides a scholarly and illuminating model for analysing the tort of negligence. Lord Burrows describes their analysis as a “novel approach to the tort of negligence” [78], while Lord Leggatt describes their “excursus” as “undesirable as well as unnecessary” [96]. A helpful indication that the judgment merits careful reading.
