Khan v Meadows
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] UKSC 21 |
| Year | 2021 |
| Court | Supreme Court |
2020 Nov 5; 2021 June 18
Negligence - Duty of care - Scope of duty - Doctor negligently failing to advise claimant to undergo genetic testing to determine whether she carried haemophilia gene - Claimant giving birth to child with haemophilia and autism - Doctor admitting pregnancy would have been terminated had correct advice been given - Liability admitted for cost of raising child with haemophilia - Whether defendant liable for additional cost of raising child with autism - Whether loss within scope of doctor’s duty of care
The claimant wished to establish whether she was a carrier of the haemophilia gene, her nephew having been born with haemophilia. As a result of negligent advice given by the defendant general practitioner, the claimant was led to believe that blood tests which she had undergone showed that she was not a carrier of the gene. In fact, the claimant was a carrier, which would have been discovered if the defendant had advised her to undergo genetic testing. Subsequently the claimant gave birth to a son who suffered from haemophilia. Four years later the child was diagnosed as also suffering from autism, which was unrelated to the fact that he had haemophilia. The claimant brought a claim in negligence against the defendant seeking damages for the additional costs of raising her son. The defendant admitted that, but for her negligent advice, the claimant would have known that she carried the haemophilia gene, would have undergone foetal testing for haemophilia while pregnant, would have discovered that the foetus was affected and would have terminated her pregnancy. The defendant accepted that the claimant could recover the additional costs associated with the child’s haemophilia, but argued that she could not recover the costs associated with his autism. The judge allowed the claim in full but the Court of Appeal allowed the defendant’s appeal.
On appeal by the claimant—
Held, dismissing the appeal, that on a claim in negligence a defendant was only liable in damages in respect of losses of a kind which fell within the scope of his or her duty of care; that there was no principled basis for excluding clinical negligence from the application of that principle or for confining it to cases of pure economic loss arising in commercial transactions; that in assessing the scope of a defendant’s duty of care in the context of the provision of advice or information, the court had to identify the purpose for which the advice or information was given and, in the case of a medical practitioner, it would be necessary to consider the nature of the service which the practitioner was providing in order to determine what were the risks of harm against which the law imposed on the practitioner a duty to take care; that, where a medical practitioner had not undertaken responsibility for the progression of a pregnancy and had undertaken only to provide information or advice in relation to a particular risk in a pregnancy, the risk of a foreseeable unrelated disability, which could occur in any pregnancy, would not as a general rule be within the scope of the practitioner’s duty of care; that, in the present case, where the claimant had approached the defendant with the specific purpose of discovering whether she carried the haemophilia gene, the law did not impose on the defendant liability for any unrelated risks which might arise in any pregnancy; and that, accordingly, the defendant was not liable for the additional costs of raising a child with autism (post, paras 36, 41, 61–69, 70, 72, 77, 82, 83–84, 88, 90–93, 98).
Per Lord Reed PSC, Lord Hodge DPSC, Lord Kitchin, Lord Sales JJSC and Lady Black. Answering the following six questions assists in determining the extent of a claimant’s entitlement to damages on a claim in negligence. (1) The actionability question: is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (2) The scope of duty question: what are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (3) The breach question: did the defendant breach his or her duty by his or her act or omission? (4) The factual causation question: is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (5) The duty nexus 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)? (6) The legal responsibility 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? (post, para 28).
The following cases are referred to in the judgments:
Alcock v Chief Constable of South Yorkshire Police [
Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [
Caparo Industries plc v Dickman [
Carslogie Steamship Co Ltd v Royal Norwegian Government [
Cartledge v E Jopling & Sons Ltd [
Chester v Afshar
Frost v Chief Constable of South Yorkshire Police [
Galoo Ltd v Bright Grahame Murray [
Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory)
Gregg v Scott
Groom v Selby
Hedley Byrne & Co Ltd v Heller & Partners Ltd [
Hicks v Chief Constable of the South Yorkshire Police [
Home Office v Dorset Yacht Co Ltd [
Hughes v Lord Advocate [
Hughes-Holland v BPE Solicitors
Jolley v Sutton London Borough Council [
Koch Marine Inc v D’Amica Società di Navigazione ARL (The Elena D’Amico) [
Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)
Livingstone v Rawyards Coal Co (
McFarlane v Tayside Health Board [
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [
McLoughlin v O’Brian [
Manchester Building Society v Grant Thornton UK LLP
March v E & M H Stramare Pty Ltd (
Michael v Chief Constable of South Wales Police
Mitchell v Glasgow City Council
NRAM Ltd (formerly NRAM plc) v Steel
Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (formerly Edward Erdman) (No 2) [
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [
Parkinson v St James and Seacroft University Hospital NHS Trust
Platform Home Loans Ltd v Oyston Shipways Ltd [
Rees v Darlington Memorial Hospital NHS Trust
Robinson v Chief Constable of West Yorkshire Police
Roe v Minister of Health [
Rothwell v Chemical & Insulating Co Ltd
Smith v Littlewoods Organisation Ltd [
South Australia Asset Management Corpn v York Montague Ltd [
Stapley v Gypsum Mines Ltd [
Sutherland Shire Council v Heyman (
Watson v Fram Reinforced Concrete Co (Scotland) Ltd
Watson Laidlaw & Co Ltd v Pott Cassels & Williamson
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