Farraj & Anor v King's Healthcare NHS Trust & Anor

A private laboratory may owe a duty of care to prospective parents where it performs part of a prenatal testing process. The absence of direct communication or contractual dealings is not decisive. The court must assess foreseeability, proximity, fairness, justice and reasonableness, including whether the laboratory objectively assumed responsibility for its specialist task. The duty may extend to information materially affecting the reliability of testing, but its precise scope depends on the evidence. For limitation purposes, knowledge means broad knowledge of the essence of the causally relevant act or omission. A claimant need not possess expert evidence or be ready to issue proceedings. The court may extend the limitation period where, having regard to all the circumstances, including delay, prejudice, evidence and the parties’ conduct, it is equitable to do so.

The claimants, Jordanian nationals, brought a wrongful-birth claim arising from an alleged failure to diagnose beta-thalassaemia major in prenatal DNA testing. King’s Healthcare NHS Trust carried out the testing and brought Part 20 proceedings against Cytogenetic DNA Services Ltd, which had cultured the chorionic villus sample. The claimants applied to join the laboratory as a second defendant.

The preliminary issues were whether the laboratory owed the claimants a common law duty of care capable of supporting liability for the same damage under the Civil Liability (Contribution) Act 1978, and whether the proposed claim was statute-barred under the Limitation Act 1980. The court also considered whether the limitation period should be disapplied.

1. Duty of care. The laboratory owed the claimants a duty of care. Applying Caparo Industries plc v Dickman, foreseeability, proximity and fairness, justice and reasonableness were satisfied. The fact that the claimants had no direct contact with the laboratory did not prevent sufficient proximity.
2. The claimants could reasonably be expected to rely, directly or indirectly, on the skill and care of everyone involved in the testing process. The laboratory knew that its cultured cells would be used to test for beta-thalassaemia major on behalf of prospective parents. Its responsibility was assessed objectively. The reasoning in Harris and another v Wyre Forest District Council and another provided a relevant analogy.
3. The duty comprised reasonable skill and care in cleaning and sorting the sample, culturing the cells and returning them. It might also include a duty to communicate information materially affecting reliability, or to maintain suitable communication systems. The precise scope, and any breach, required evidence and could not be determined on the preliminary issue.
4. It was foreseeable that substandard work, or failure to communicate information affecting reliability, might lead to misleading testing, continuation of the pregnancy and the birth of a child with the condition the testing was intended to detect. The preliminary duty question was therefore answered affirmatively.
5. Limitation. The claimants acquired the knowledge required by section 14(1)(b) of the Limitation Act 1980 when King’s Healthcare served its Defence in March 2001. They were then placed on notice to investigate the laboratory’s possible role. Expert evidence and funding sufficient to issue proceedings were unnecessary. Knowledge of the laboratory’s involvement alone, before the Defence, was insufficient.
6. The court distinguished Simpson v Norwest Holst Southern Ltd and Cressey (Brian) and (1) E. Timm & Son Ltd (2) E. Timm & Son Holding Ltd: the claimants knew the current identity of the proposed defendant, and the laboratory had assumed its predecessors’ liabilities for these proceedings.
7. Although the primary limitation period had expired, it was equitable under section 33 of the Limitation Act 1980 to allow the claim to proceed. The delay was explained, the evidence remained sufficiently cogent, a fair trial was possible, and the laboratory would remain involved in the proceedings through the Part 20 claim. The application to join the laboratory was granted.