Climbing the Mountain Again: Clinical Negligence and Scope of Duty

wrongful birth ; scope of duty ; causation ; remoteness ; generalised application of SAAMCO

Periodically in the law of tort an attempt is made to suggest that all analysis is illusory. Analysis should "not eliminate consideration of the tort of negligence as a whole" (per Lord Pearson in Dorset Yacht [1970] AC 1004). Negligence is a “composite concept” per May LJ in Sam v. Atkins [2005] EWCA Civ1452. In a trio of recent Supreme Court cases whether to and if so how precisely to compartmentalise the tort of negligence has once again become critically important. The cases are: (1) Khan v. Meadows [2021] UKSC 21 ("Khan"), Manchester Building Society v. Grant Thornton UK LLP [2021] UKSC 20 ("MBS") and Hughes-Holland v. BPE Solicitors [2017] UKSC 21 ("HH"). The immediate impetus for reconfiguration is the need to accommodate the "scope of duty principle" which was developed in South Australia Asset Management Corporation v. York Montague [1997] AC 191 ("SAAMCO"). However, the majority reasoning in Khan in the Supreme Court suggests that it is not just concepts, but the order in which concepts are placed, which may well determine outcome. This article begins with Khan, digresses to some of the wider implications of the debate about scope of duty and then returns specifically to focus on clinical negligence and personal injury.

Khan v. Meadows [2021] UKSC 21

The Appellant's nephew had been born in 2006 with haemophilia, a disorder of blood coagulation. The Appellant (“the mother”) wished to avoid having a child with that condition. She consulted a General Medical Practitioner, Dr A, in August 2006 wanting to know whether she was a carrier of the gene. Mistakenly, she was tested for haemophilia itself, not whether she was a gene carrier. On 25 August 2006, Dr Khan discussed her blood test results and told her that the results were normal. As a result of the advice the mother received at that consultation and the previous consultation, she was led to believe that any child she had would not have haemophilia. In December 2010 the mother became pregnant with her son, Adejuwon. Shortly after his birth he was diagnosed as having haemophilia. Further genetic testing showed that the mother was indeed a gene carrier. If she had known this, she would have undergone fetal testing when she became pregnant in 2010. The same would have revealed that her son was affected by haemophilia and she would have chosen to terminate the pregnancy. In December 2015, Adejuwon was diagnosed as also suffering from autism. His haemophilia did not cause his autism or make it more likely that he would have autism. Damages for additional losses associated with haemophilia alone were agreed in the sum of £1.4m. However, if the Court determined that Dr Khan was liable for the additional losses associated with haemophilia and autism together, quantum was agreed in the sum of £9m.

At first instance, Mrs Justice Yip referred both to Chester v. Ashvar [2005] 1 AC 134 and to SAAMCO. She acknowledged the limit of Dr Khan's duties but held that as a matter of 'but for' causation, Adejuwon would not have been born but for the Defendant's negligence. In her view, Dr Khan had assumed the responsibility, which if properly fulfilled would have avoided the birth of Adejuwon. It was not fair, just and reasonable to distinguish between a mother who wanted to terminate this pregnancy and a mother who would have wanted to terminate any pregnancy. She was influenced by Parkinson [2002] QB266 and Groom [2002] PIQR P18.

In the leading judgment of Nicola Davies LJ, in the Court of Appeal at [2019] EWCA Civ152 the Court noted that the focus of the consultation and testing had been directed to the issue of whether Ms Meadows was a carrier of the haemophilia gene; and not, it was found, at the wider issue of whether she should become pregnant. Dr Khan was not therefore liable for the autism costs because that type of loss was not within the scope of the risks which Dr Khan had undertaken to protect Ms Meadows against, and therefore not within the scope of her duty of care. The Court of Appeal applied what is known as the SAAMCO counterfactual, i.e. that if the mother had not been a carrier of the haemophilia gene the result would still have been that the child would have been born with autism. It was however accepted by Dr Khan that it was reasonably foreseeable that Adejuwon could have suffered from a condition such as autism [2018] EWCA Civ2609, para 15.

When the matter reached the Supreme Court, important differences of approach emerged between that of the majority, Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black and Lord Kitchin agreed); and on the other hand Lord Burrows and Lord Leggatt.

Lord Burrows

Lord Burrow found much common ground with the majority, noting that the birth of an autistic child was not too remote, nor was the chain of causation broken on the facts of Khan by any intervening event. The remaining issue was whether the autism losses were irrecoverable because of the application of SAAMCO. He applied the "counterfactual" test as a cross-check: the Claimant would have suffered her autism losses even if the advice that she was not a carrier of haemophilia had been correct because she would still have given birth to an autistic child (Khan/77(iii)).

However Lord Burrows expressed a preference for a relatively conventional approach (Khan/79) ; and devised a list of questions which followed the familiar paradigm of duty – breach – causation – remoteness. He placed duty "scope" at the end of his list of questions. For this analysis, he drew substantial criticism from the majority (Khan/59.) The majority’s view was that the scope of duty principle did not depend on issues of policy. At its first and second stages Lord Burrows' scheme assumed wrongly, the majority suggested, that one can speak of a duty of care and its breach without determining the damage which is necessary to complete the tort of negligence.

Lord Leggatt

Lord Leggatt reiterated what he had said at MBS 85-89, that in his view policy underlay Lord Hoffman's reasoning in SAAMCO : namely that as a matter of fairness and reasonableness between the parties, a duty of care should not impose on a professional adviser responsibility for losses which would have occurred even if the information given had been correct. As it had been in MBS, Lord Leggatt’s principal focus in Khan was on causation. Using the language of this concept Lord Leggatt framed his formulation at Khan/90. It was fairness and reasonableness that drove one to seek a "causal connection" between the subject matter of the Defendant's advice and the Claimant's loss.

Like Lord Burrows, Lord Leggatt thought it both undesirable and unnecessary to enter into an "excursus" about the conceptual structure of the whole of the tort of negligence (Khan/96.) Whereas the majority had identified the so-called duty nexus question, this could be understood more prosaically as referring to causal connection. (Khan/97). The appeal should be dismissed because the autism costs were causally unrelated to the particular failure of Dr Khan to discover and report (Khan/98). This conclusion is in marked contrast to the submissions of Counsel for Dr Khan in oral argument that the scope of duty principle had nothing to do with causation, and that SAAMCO was not a causational principle.

The Majority view

Lord Hodge and the other majoritarian Justices posed six "questions" (at Khan/28) : as to (I) actionability, (II) scope of duty, (III) breach, (IV) factual causation, (V) duty nexus and (VI) legal responsibility. The duty nexus question is closely linked to the scope of duty issue, asking whether there was 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" [in terms of scope of duty]

This was not the same list as contended for by Counsel for Dr Khan, but shared with it a wish to exile to the end of the process as "legal filters" (Khan/55-56) such matters as remoteness, legal causation and mitigation. It is notable that the scope of duty question is reached somewhat in advance of the factual causation question in the list. It was even said that the scope of duty question should be asked before turning to breach (Khan/38). The inspiration for the list of questions is that the law has regard, it is said, to the actual nature of the damage which the Claimant has suffered when it determines the scope of the Defendant's duty (Khan/33) – or as it was put at the close of the majority decision, the Court must 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 (Khan/58).

Application of the Majority view to the facts of Khan

At paragraph 67 in Khan, the majority noted that the scope of duty question was answered by addressing the purpose for which the mother obtained the service of the general medical practitioner. She wished to know if she was a carrier of the haemophilia gene. Dr Khan's service, whether information or advice, was concerned with a specific risk: that of giving birth to a child with haemophilia. Whilst there was a causal link between Dr Khan's mistake and the birth of Adejuwon, that was not relevant to the scope of Dr Khan's duty. The duty nexus question meant that the law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy. Applying the counterfactual, the child would have been born with autism in any event. The foreseeable consequences are confined only to those of the birth of a boy with haemophilia and the recovery is therefore only of the increased cost of caring for a child with haemophilia.

Limits of the Scope of Duty Principle

What are the tests for determining what is the "scope" of a given duty of care in tort? Is the focus on subjective intention of the parties, or what objectively the law deems to have been the case? One of the tests put forward is that of "purpose". This worked well on the facts of Khan; and predominated in Caparo Industries v. Dickman [1990] 2 AC 605 where it was fairly easy to ascertain the purpose for which a company auditor had supplied accounts, which did not extend to assisting investors.

In the SAAMCO litigation itself there was understood to be a deliberate (i.e. conscious) assumption of risk by the lender that it might suffer loss as a result of a fall in the property market (cf. HH/25). Is there space for looking at the subjective understanding (in terms of how risks are to be apportioned) of both the giver of information and the recipient of information, perhaps through a filter of reasonableness? Some majority dicta in Khan (e.g. at 41) suggest that the recipient’s actual understanding is important: the Court is said to ask (emphasis added):

"What was the risk which the advice or information was intended and was reasonably understood to address?"

The above approach would fit with dicta in ANECO Reinsurance v. Johnson [2001] UK HL51. There was a factual investigation whether or not brokers had undertaken a duty to advise ANECO as to what course of action they should undertake. Lord Steyn approved, and preferred not to adopt an approach of asking whether it was “just fair and reasonable” between the parties that the brokers should be held responsible. He said:

“It is a deus ex machina: it will tend to lead to formulaic reasoning. It is best avoided…”

Further references in Khan are however to an objective or deeming role, in effect on evidence it is the Court that imposes the apportionment of risk. That might echo ways in which the test of assumption of responsibility developed in the context of liability for economic loss. The objective approach seems foreshadowed in the formulation of the “scope of duty question” within the majority’s list of questions (at Khan/28, emphasis added):

"(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)"

The Information/Advice dichotomy

This dichotomy initially expounded by Lord Hoffmann in SAAMCO cf. HH/29 has certainly proved useful to those attempting to analyse the SAAMCO principle. It helped Dr Khan in argument to escape from difficulties caused by the difference between wrongful conception and wrongful birth. As a generalisation, it was said in argument that normally conception itself will stem from "advice", making it easier to impose a wide range of consequences on the adviser.

But since the decision of Lord Sumption in HH (e.g. beginning at paragraph 39) "advice” and “information" are to be regard as inadequate labels. One problematic group of “mere” information cases are those where the information, perhaps because of timing, happens to be critical to whether the recipient goes ahead with the transaction. Indeed, ultimately that was how the case was put for the mother in Khan. Under Lord Sumption's analysis in HH, this is not relevant (see HH/41):

"… It follows that even if the material which the Defendant supplied is known to be critical to the decision to enter into the transaction, he is liable only for the financial consequences of its being wrong and not for the financial consequences of the Claimant entering into the transaction so far as these are greater."

Perhaps unsurprisingly in Khan the majority sought to escape from the dichotomy. There was a spectrum between advice and information; and the spectrum lies in the extent of the matter, whether labelled information or advice, which the professional adviser has contributed to the Claimant's decision making (Khan/41). The duty nexus question then becomes of central importance, separating out loss where the professional adviser "is not guiding the whole decision making process". This type of analysis does therefore seem to focus on the actual behaviour , actual intent and actual understanding of the actors. It would not sit comfortably with an approach of the Court imposing risk apportionment from outside.

The Counterfactual

The majority explained that the counterfactual assumes that the Claimant would behave as he did in fact behave, and asks whether if the advice had been correct the Claimant's actions would have resulted in the same loss (at Khan/53.)

The facts of Khan very neatly allow a demonstration of the counterfactual at work. The duty nexus question paves the way for the use of the counterfactual.

Is the counterfactual justified intellectually? It is worth asking this because the issue arose in questions to the Appellant's Counsel, Philip Havers QC, in the course of argument in Khan. His point was that a pregnancy where the mother was not a haemophilia carrier would have been a different pregnancy, conceptually, perhaps metaphysically. So it's impossible to say that had that pregnancy gone ahead, the baby would still have been born with autism because the circumstances are inevitably different. It is fair to say that case law developing around Chester v. Ashvar has already had to grapple with these kind of issues. In Crossman v. St George's Healthcare NHS Trust [2016] EWHC 2878, the Court had to look at what would have happened had a particular operation taken place on a different occasion. The relevant risk, it was found, would not have been realised. Also in Thefaut v. Johnston [2017] EWHC 497, per Green J, if following a second opinion, the patient would have opted for surgery at a later date the probability was that the damage would not have occurred. A similar result prevailed in Wallace v. Kam [2013] HCA19.

The counterfactual works best when the ambit of information provided is limited (Khan/71v). Query whether it can ever apply to a conduct case as opposed to an information case. It is notable that even the majority in Khan were ultimately lukewarm about the counterfactual, saying at paragraph 36 the counterfactual is an analytical tool which is useful "in some but not all circumstances" in ascertaining the extent of a Defendant's liability which flows from the breach of a duty of a defined scope.

Personal injury and clinical negligence cases

Although frequently the subject of remark, it is perhaps not a definitive answer to whether the scope of duty principle applies in a personal injury case, that Lord Hoffman's famous example of the mountaineer appears to concern personal injuries. The assumption of some of the Justices during oral argument in Khan notably Lord Leggatt was that SAAMCO did not apply to personal injury claims. It is conceptually inappropriate to conduct, and appears to work only with cases of advice and information. However, Counsel for Dr Khan (S Maskrey QC) submitted that the scope of duty principle did apply in all cases, even road traffic accidents – i.e. it applies even though the apportionment of risk is a banal exercise.

Ultimately the majority in Khan appear to have accepted that argument (see Khan/47). Illustrating the operation of the duty nexus question, the majority appears deliberately to have selected examples where the driver of a car injures a pedestrian or where a surgeon negligently performs an operation.

However, the point had been made in argument that the law takes a broad view of the kind of damage which is foreseeable in the case of personal injury – see well known cases of Hughes v. Lord Advocate [1963] AC837 and Jolleyy v. Sutton London Borough Council [2000] 1 WLR 1082.

Surely if there is an unalloyed application of the scope of duty principle to personal injury claims, the result in these two cases or similar cases will be revisited? For example, on the facts of Jolley, the Local Authority would only be liable for the consequences of not towing the rotten wooden boat away and not for the collapse of the boat upon the Claimant, which can be characterised as outside the scope of any risk undertaken by the Local Authority.

In summary, in the majority's discussion in Khan of the conceptual framework of negligence there appears no express reference to the "eggshell skull" principle although this may well have come under “remoteness of damage”. Taking the victim as he or she is found has traditionally proved helpful on issues of causation including in clinical negligence cases; and was for example put forward as a rationalisation of Bailey v. MoD [2009] 1WLR 1052 in Williams v. Bermuda Hospital Board [2016] AC, 888 at para 47.

Clinical Negligence

The Appellant in Khan attempted a bold argument that SAAMCO was not suited to clinical negligence cases because in the latter there was an imbalance of knowledge and power between the clinician and the patient. Questions of loss of patient autonomy meant it was unfair to distinguish a parent who did not want any pregnancy from one who did not want a particular pregnancy. However, the majority in Khan (at 62) were emphatic that there was no principled basis for excluding clinical negligence from the ambit of the scope of duty principle.

However, it is tentatively suggested that there remain at least two important problems for the scope of duty principle in clinical negligence which can be characterised as "unanticipated dilemma" and "indivisible event".

As to "unanticipated dilemma", what are the clinician's duties when in the course of dealing with medical problem A, unexpectedly medical problem B arises? In Brown v. Lewisham [1999] Ll LR110 the patient was wrongly transferred from London to Blackpool, a chest infection having been overlooked. Once in Blackpool he had an unexpected adverse reaction to Heparin following the discovery of a DVT. Beldam LJ could not see on what policy ground it would be fair or just to hold the doctor to be in breach of duty who failed to diagnose an asymptomatic and undetectable illness (the DVT) because he was at fault in the management of a correctly diagnosed but unrelated condition (the chest infection).

However in ST v. Maidstone & Tunbridge Wells NHS Trust [2015] EWHC51 a delay in administering a blood transfusion to an infant with a history of anaemia allegedly resulted in a series of strokes. The Defendant sought to say by analogy with Brown that the strokes and brain damage were too remote from their breaches of duty to be within their scope. Swift J in ST agreed that in Brown the infection was wholly different from the DVT and heparin intolerance. But in ST it was clear from expert evidence that a competent paediatrician should have foreseen that a failure to transfuse promptly would give rise to a risk, albeit a small risk of cardiac problems, leading to brain injury. The damage (i.e. brain injury) would be the same in kind as that which should have been foreseen, “although the route by which he suffered the damage would not have been the same as the route that was to be foreseen at the time of the breaches” (ST para 194). Khan would fall across the line with ST because in Khan it was acknowledged that the autism was a foreseeable outcome of the pregnancy. The scope of duty principle would only produce a different result if allowed to make inroads into well-established principle exemplified by Hughes v. Lord Advocate. Lord Leggatt appears to have been the only Justice to have countenanced problem of this kind. He said (at Khan/84, emphasis added):

"The only purpose for which … Ms Meadows consulted the general practice of the Defendant … was to find out whether she was carrying a gene for haemophilia. That did not by itself limit the scope of the Defendant's duty, as a doctor's duty will sometimes extend to addressing a matter on which the patient has not asked for advice but which the doctor recognises, or ought to recognise, poses a material risk to the patient."

As to “indivisible events”, the outcome in Khan flows from the failure to persuade the Supreme Court that the pregnancy in that case, and all its consequences, should be regarded as an indivisible event. It is respectfully suggested there could be potential unfairness if the thinking in Khan is applied to a different set of facts in a clinical negligence case. And again with unreserved respect, the examples given by the majority at paragraph 63 in Khan of apparently successful clinical negligence applications of the scope of duty principle nevertheless raise questions: what if the surgeon's action in performing an operation uncovers an unexpected vulnerability in the patient the surgeon takes no corrective action? What if the unprescribed suitable medication would have had a hidden secondary benefit of which the patient has now been deprived?

In Less v. Hussain [2012] EWHC 3513 a mother had multiple fibroids including one very large fibroid. The mother had the impression from a Consultant that there was no reason not to conceive but that advice was negligent. During the pregnancy, the mother realised that she could not feel foetal movement. Subsequent at hospital a heartbeat could not be seen on the trace and death in utero was diagnosed. The cause of death was hypercoiling of the umbilical cord. This was unrelated to the matters upon which there had been a consultation, namely fibroids, and a history of DVT. The Defendant in that case argued that it was not sufficient to enable recovery to say that but for the negligence the mother would not have become pregnant. It was necessary carefully to determine the scope of the duty by reference to the kind of damage from which the professional had to take care to save the mother from. The Defendant referred the Judge to SAAMCO, however the Court (His Honour Judge Cotter QC) held that hypercoiling or other causes of death are an ever present risk of, rather than being concomitant, with pregnancy. Such risks are part and parcel of the process of fetal development. It cannot be avoided by whatever means adopted. Successfully conceiving is no guarantee of giving birth to a living baby, a fortiori one objectively considered entirely healthy. Such risks being part of the natural process, they axiomatically flow with conception. The mother therefore successfully recovered damages for psychiatric injury.

Presumably the result would be different applying the approach in Khan. It would be argued that the scope of the duty in Less was clearly confined to considering the mother's thromboembolic condition which had led to DVT's and her fibroids. It was only on those two matters that the clinician gave advice; and applying the scope of duty and duty nexus questions, the clinician could not be liable for the hypercoiling of the umbilical coil, and its effects. Query whether such an outcome would be instinctively satisfactory. Cases with such facts raise the issue: what is and what is not "part and parcel of the process of foetal development" (Less para 170).

In conclusion, it is difficult respectfully to quarrel with the actual outcome in Khan on its particular facts. The concern could be however that a strict application of the reasoning in Khan together with the majority’s six questions, in the order in which they are set out, might lead to an unfair result in a similar or analogous set of facts.