MNX v Khan

In a wrongful birth claim, a mother may recover the additional costs of an unrelated disability where the defendant’s negligence caused the continuation of a particular pregnancy that would otherwise have been terminated because of another disability.

The scope of the duty depends on the purpose of the service provided. Where the service was intended to enable termination of a pregnancy affected by a specified condition, liability may extend to the natural consequences of the birth, including disability arising from the ordinary incidents of conception, intra-uterine development or birth. The law need not distinguish between a parent avoiding any pregnancy and a parent avoiding a pregnancy affected by a particular disability.

The claimant consulted a general practitioner to establish whether she carried the gene for haemophilia. She was incorrectly told that her blood-test results were normal. Had she been properly referred for genetic testing, she would have discovered that she was a carrier, undergone foetal testing and terminated the pregnancy that resulted in the birth of FGN.

FGN was born with severe haemophilia and was later diagnosed with autism. Liability for the additional costs associated with haemophilia was accepted. The parties agreed that the autism was unrelated to the haemophilia, but that it was congenital and arose from the pregnancy. The central issue was whether the additional costs associated with autism fell outside the scope of the defendant’s duty.

1. Claim allowed. The court held that the claimant could recover the agreed damages of £9,000,000, including the additional costs associated with FGN’s autism.
2. There was no principled distinction between wrongful conception and wrongful birth claims. The relevant question was whether, but for the negligence, the pregnancy or birth would have occurred. The principles applicable to both categories were the same, as stated in Groom v Selby [2002] PIQR P18.
3. The Court of Appeal decisions in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 and Groom v Selby established that the additional costs of raising a disabled child could be recovered even where the disability was not directly caused by the negligence. The disability could arise from the normal incidents of conception, intra-uterine development or birth.
4. The purpose of the defendant’s service was to provide information enabling the claimant to terminate any pregnancy affected by haemophilia. The defendant’s duty therefore extended to preventing the birth resulting from such a pregnancy and to the natural consequences of that birth. Autism was bad luck in the same sense as the disability in Groom v Selby, but it arose from the particular pregnancy that would have been terminated.
5. The court rejected the application of the principle in South Australia Asset Management Corporation v York Montague [1997] AC 191 as limiting recovery to losses associated only with haemophilia. The case was closer to Chester v Afshar [2005] 1 AC 309 than to the mountaineer example in South Australia Asset Management Corporation v York Montague. The autism arose from the continuation of the particular pregnancy, rather than from an independent risk that would probably have materialised in any event.
6. It was fair, just and reasonable to impose liability. The coexistence of haemophilia and autism made the circumstances rare, and recognising liability would not create an unlimited responsibility for every risk of pregnancy. No principle of distributive justice required a distinction between a mother wishing to avoid any pregnancy and one wishing to avoid a pregnancy affected by a particular disability.
7. The court noted that a different result might follow where the child’s disability did not arise from a pregnancy affected by the condition about which the doctor had been consulted. That qualification did not apply here.