Supreme Court (re)considers scope of duty

22 Jun 2021

On Friday 18 June, a panel of seven justices of the Supreme Court unanimously dismissed the claimant’s appeal in the matter of Khan (Respondent) v Meadows (Appellant).  The decision was handed down along with that in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20, which should be read in conjunction. In Khan v Meadows, the Court held that additional losses arising from a second medical condition, and upon which advice was never sought, were irrecoverable as outside the scope of the defendant’s duty of care.

Greg McEwen, Partner in BLM’s Healthcare practice acted for the defendant on instruction from Medical Protection.

The facts

In 2006, Ms. Meadows consulted her GP practice as she was concerned, following the birth of her nephew, about whether she was a carrier of the haemophilia gene, which could be passed onto her future children.

After the practice conducted blood tests, the results were reviewed by a different GP, Dr. Khan, in consultation with Ms. Meadows. However, Ms. Meadows was not advised that those tests were only capable of ascertaining that she did not have haemophilia. She was not referred to a haematologist for genetic testing in order to establish whether she was a carrier of the relevant gene. As a result of these discussions, Ms. Meadows was wrongly led to believe that any child she might have in the future would not have haemophilia.

In 2010, Ms. Meadows became pregnant with her son. Shortly after his birth, he was diagnosed as having haemophilia. Genetic testing carried out subsequently confirmed Ms. Meadows was, in fact, a carrier of the haemophilia gene. It was accepted that, had Ms. Meadows known that she was a carrier, she would have undergone foetal testing whilst pregnant, which would have revealed her unborn son was affected. Ms. Meadows would then have chosen to terminate her pregnancy, and her son would not have been born.

It was not in dispute that Dr. Khan was liable for the additional costs attributable to hemophilia, However, Ms. Meadows’ son was also diagnosed with autism, which was a condition wholly unrelated to his haemophilia. It was agreed that one did not cause the other, nor increase its likelihood.

The question for the Supreme Court to determine was whether Dr. Khan should be liable for all of the costs related to both haemophilia and autism, or only those costs associated with haemophilia, which Dr. Khan had been asked to advise upon.

In ascertaining the scope of the duty of care, the Supreme Court was required to examine the House of Lords’ judgment in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd; South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (“SAAMCO”). The SAAMCO principle provides that a defendant will not be liable for losses of a kind which fall outside the scope of their duty of care.

The Supreme Court decision

A panel of seven justices unanimously dismissed the appeal, holding that the additional losses attributable to autism were irrecoverable on the grounds they were outside the limited scope of the defendant’s duty of care, which concerned only the risks associated with haemophilia.

Scope of duty depends, not on foreseeability but, on the nature of the service the defendant has undertaken to provide to the claimant.  Where, as in the present case, the defendant’s duty was limited to advising in relation to a particular risk (haemophilia) the foreseeable, but unrelated, risk of autism fell outside the scope of that narrower duty.

Where the scope of a defendant’s duty of care cannot be readily ascertained, the Court advocated use of the SAAMCO counterfactual. This involves asking whether, if the negligent information or advice had actually been correct, the same loss would have resulted in any event.

In the present case, had it been correct to inform the claimant that she did not carry the haemophilia gene, she would have given birth to a child diagnosed with autism nonetheless. As such, the losses associated with autism fell outside the scope of the defendant’s duty, and were irrecoverable.

What this means for you

The Supreme Court made clear – at [41] – that “… Where the… adviser is not guiding the whole decision-making process, … the court must separate out from the [total] loss, which the claimant has suffered …, the element of that loss which is attributable to the defendant’s negligent performance of the service which he or she undertook…”

Hence, a claim for clinical negligence ought to involve early consideration of the scope of the defendant’s duty of care.  In many cases, this will be readily apparent.  Where, however, the defendant is tasked with providing information or advice on a specific risk or risks, the scope of duty principle will be of particular relevance in determining the nature and extent of any subsequent liability.

The judgment illustrates the importance at the outset of a claim of scrutinising the precise nature of the service being undertaken by the defendant which, consequently, will impact upon the nature and scale of the losses they could be liable to meet.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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