Khan v Meadows [2021] UKSC 21

Key points

  • The majority proposed a new model for analysing the scope of duty principle in negligence

Facts

  • Before Ms Meadows’ pregnancy, she consulted her GP to establish whether she is a carrier of the haemophilia gene (a hereditary disease)
  • Ms Meadows was negligently led to believe by Dr Khan that she was not a carrier of the haemophilia gene, yet the blood test arranged merely confirmed that Ms Meadows herself did not have haemophilia
  • After the birth of Ms Meadows’ son, he was diagnosed as having haemophilia and autism (an unrelated condition)
  • Had the GP referred Ms Meadows for a genetic testing, she would have known she was a carrier and would then have chosen to terminate her pregnancy, and his son would not have been born
  • Ms Meadows sued in negligence for damages covering the costs associated with her child’s autism and haemophilia
  • The Court of Appeal, applying the SAAMCO principle, held that Dr Khan was only liable for the costs associated with the boy’s haemophilia but not autism

Held (The Supreme Court)

  • The appeal is unanimously dismissed
  • Dr Khan is only liable for the losses falling within the scope of her duty of care to advise whether Ms Meadows was a carrier of the haemophilia gene, but not the costs associated with Ms Meadows son’s autism

Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black and Lord Kitchin agree)

New conceptual model for negligence

  • The majority proposed a “helpful model for analysing the place of the scope of duty principle in the tort of negligence” model consisting of six questions in sequence to bring clarity on the scope of duty in SAAMCO:
    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): [28]

Current case

  • By applying the six questions, the majority found that the defendant was only liable for costs associated with the care of the child insofar as they are caused by his haemophilia: [68]

Lord Burrows (Concurring)

On the majority’s model of negligence

  • ‘I do not consider it necessary or helpful in this case, or in the case of Manchester Building Society v Grant Thornton UK LLP , to advocate what appears to me to be, in some respects, a novel approach to the tort of negligence as formulated in the six questions that Lord Hodge and Lord Sales suggest should be asked. For example, their approach does not appear to start with establishing a duty of care, sees the SAAMCO principle as concerned with the “duty nexus” question, and treats contributory negligence alongside remoteness.’
  • He adheres to a conventional approach that involves seven questions as follows:
    1. Was there a duty of care owed by the defendant to the claimant? (the duty of care question)
    2. Was there a breach of the duty of care? (the breach, or standard of care, question)
    3. Was the damage or loss factually caused by the breach? (the factual causation question)
    4. Was the damage or loss too remote from the breach of duty? (the remoteness question)
    5. Was the damage or loss legally caused by the breach of duty? (the legal causation, or intervening cause, question)
    6. Was the damage or loss within the scope of the duty of care? (the scope of duty question)
    7. Are there any defences? (the defences question): [79]

Current case

  • The purpose of the advice or information was to ascertain whether or not the claimant was a carrier of haemophilia and hence the impact on pregnancy, it was not to ascertain the general risks of pregnancy, including the risk of autism: [77]
  • In the light of that purpose, it was fair and reasonable that the risk of the child being born with haemophilia should be allocated to the doctor: [77]

Lord Leggatt (Concurring)

On scope of duty

  • “The scope of duty principle is just as applicable to a medical practitioner as to anyone else who gives professional advice” : [90]

On the majority’s model of negligence

  • On the model proposed by the majority: “Like Lord Burrows, I think it undesirable as well as unnecessary to engage in such an exercise. In particular, these appeals are concerned solely with the liability of professional persons for giving negligent advice.”: [96]

Current case

  • Whether the claimant was carrying a haemophilia gene was plainly only one factor relevant to the choice as to whether to have a child, the defendant had no duty to assess or advise the claimant on other factors and is thus only responsible for consequences which result from the fact that the claimant was carrying a gene for haemophilia: [91]
  • While “there is no need to apply a counterfactual test; but equally there is no difficulty in doing so. It is plain that, even if the information that the claimant was not carrying a gene for haemophilia had been correct and all other circumstances remained the same, Adejuwon would still have been born with autism”: [95]