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

In a clinical negligence claim arising from an erroneous prenatal genetic test, each laboratory had a duty to ensure effective communication about the quality and reliability of the sample. The referring laboratory had to seek information about risks known to the specialist laboratory; the specialist laboratory had to volunteer material concerns, whether asked or not.

A non-delegable duty was not imposed where the work was entrusted to a competent independent subcontractor. On the evidence, an abortion for a foetal genetic disorder would probably have been lawful in Jordan because the statutory reference to the mother’s health included social health. Both laboratories’ communication failures caused the loss. Responsibility was apportioned two-thirds to the specialist laboratory and one-third to the referring laboratory.

The claimants, Jordanian parents, alleged that negligent communication between two laboratories caused an erroneous report that their foetus was unaffected by beta thalassaemia major. The first defendant had undertaken the genetic testing and the second defendant had cultured the chorionic villus sample. The sample was materially contaminated by maternal cells.

The issues included the applicable law, the legality of a contemplated abortion in Jordan, whether the first defendant owed a non-delegable duty for the second defendant’s work, breach by each laboratory, causation, and contribution. The claim was limited to liability.

1. Liability and disposition. Judgment was entered for the claimants against both defendants, with damages to be assessed.
2. Jordanian law. The court preferred the evidence that the reference to the mother’s health in Article 62 of the General Public Health Law No. (20) of 1971 included social health and risks continuing after childbirth. In the context of the established and openly administered practice in Jordan, termination for the serious social consequences of a child’s genetic disorder would probably have been lawful. The conflict-of-laws issue therefore did not require determination.
3. Ex turpi causa. Even if the abortion had technically been unlawful in Jordan, the court doubted that public policy would bar the claim where the practice was openly sanctioned and not enforced. This was an alternative observation.
4. Non-delegable duty. The first defendant was entitled to rely on the expertise of a competent independent subcontractor. The circumstances did not establish a non-delegable duty for the subcontractor’s failures.
5. Communication duties. The second defendant knew that the sample was exceptionally poor and that there were doubts whether it consisted of foetal tissue. It should have communicated those doubts to the first defendant without waiting for a request. The first defendant also had a duty proactively to obtain information about the quality of the cultured sample. Its assumption that all was well, despite knowledge of the poor sample and the risk of maternal contamination, lacked a sound logical foundation: [1998] AC 232.
6. Causation and contribution. Proper communication would probably have led to a second sample being taken and analysed before the 20-week termination limit. The communication failures were equally causative, but the second defendant was more culpable because it possessed the critical information. Contribution was therefore apportioned two-thirds to the second defendant and one-third to the first.