Less & Anor v Hussain (Rev 1)

In an advice-based clinical negligence claim, the relevant injury may be the unintended conception itself. Where negligent advice causes conception, ordinary risks inherent in pregnancy, including loss of the baby during pregnancy, may fall within the scope of the duty if they are foreseeable consequences of conception. The claimant must nevertheless prove that proper advice would probably have avoided conception. A court should assess the decision that would have been made with balanced and comprehensive advice, allowing for patient autonomy and the way risks would reasonably have been presented. A conventional Rees award is not automatic where the claim fails and the ordinary losses associated with wrongful conception are absent. A relative who is not exposed to foreseeable physical injury is ordinarily a secondary, rather than primary, victim, and psychiatric recovery requires the Alcock controls to be satisfied.

Denise Less and Michael Carter claimed damages from Sarah Hussain, a consultant gynaecologist, after negligent pre-conception advice concerning pregnancy risks associated with fibroids and thromboembolism. The defendant admitted breach in failing to secure a follow-up consultation and a failsafe reminder, and the court found that the advice would in any event have failed to address the full range of relevant risks.

Ms Less conceived, experienced severe pain from red degeneration, and gave birth to a stillborn son whose death resulted from hypercoiling of the umbilical cord. Mr Carter claimed for psychiatric injury and mental distress. The central issue was whether the claimants had proved that, with proper advice, they would have avoided conception.

1. Outcome. Both claims were dismissed because the claimants failed to prove factual causation. On the balance of probabilities, they would have proceeded with pregnancy even after receiving balanced and comprehensive advice.
2. The proper counterfactual assumed a reasonable consultant would identify the relevant risks, including miscarriage, premature labour, late pregnancy loss, haemorrhage, thromboembolism, age-related risks and red degeneration, but would ordinarily adopt a neutral presentation and leave the ultimate decision to the patient. Advice should not be shaped by a consultant’s personal view of family size. The risks had to be explained without exaggerating the unusually severe pain that in fact occurred.
3. The defendant was in breach of duty by failing to secure a second appointment after the scan and by failing to provide a failsafe mechanism. The proposed further advice would also have fallen below the reasonable standard. Had causation been established, conception, pregnancy, red-degeneration pain, stillbirth and Ms Less’s psychiatric injury would have been within the scope of the duty. The precise mechanism of the stillbirth did not prevent recovery because loss of the baby during pregnancy was an ordinary foreseeable risk of conception.
4. A Rees award would not have been made. The conventional award is connected with the real losses ordinarily associated with wrongful conception or continuation of pregnancy, and the court would not extend that exceptional remedy incrementally where those losses were absent.
5. Mr Carter was not a primary victim because the consultation was with Ms Less and nothing said or omitted could foreseeably expose him to physical injury. His psychiatric claim therefore required the Alcock controls. Although witnessing the birth of his dead son was capable of causing shock, the evidence did not establish that his psychiatric illness was caused by the required sudden appreciation of a horrifying event.
6. Damages for mental distress were not recoverable in negligence. Although the consultation contract had the important purpose of providing peace of mind, Mr Carter was not shown to be an identified or identifiable intended beneficiary of it. He therefore would not have recovered contractual damages for mental distress.