Khan v MNX

In a wrongful-birth claim, the fact that negligence caused a pregnancy to continue, and that autism was a foreseeable consequence of pregnancy, does not itself make the doctor liable for autism-related losses. The court must identify the scope of the duty by considering the purpose of the consultation or information, the allocation of risk, and what loss would have occurred if proper advice or testing had been given. Where advice and testing addressed only the risk of haemophilia, responsibility extended to haemophilia-related losses but not to other pregnancy risks. Under [1997] AC 191, the causal link must be between the scope of duty and the type of damage claimed.

The appeal was brought by the defendant doctor against Yip J’s decision in the Queen’s Bench Division, reported at [2017] EWHC 2990 (QB). The doctor admitted that negligent failure to identify the claimant’s haemophilia-carrier status led to the birth of her son, who suffered from haemophilia and autism. It was accepted that, with proper advice and testing, the pregnancy would have been terminated. Liability for additional haemophilia-related losses was agreed, but the parties disputed whether additional losses attributable to autism were also recoverable. Yip J awarded damages of £9,000,000. The central issue was whether the doctor’s duty extended beyond the specific haemophilia risk addressed by the consultation.

Appeal allowed. Lady Justice Nicola Davies gave the leading judgment, with which Lord Justice Hickinbottom and the Senior President of Tribunals agreed.

1. The scope-of-duty analysis in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 was relevant and determinative. The court should ask: the purpose of the procedure, information or advice; the appropriate allocation of risk having regard to its nature; and what losses would have occurred if the advice or procedure had been correct.
2. The consultation had a specific purpose: to establish whether the claimant carried the haemophilia gene. It was not advice about whether she should become pregnant generally, nor advice about all risks of pregnancy. The doctor assumed responsibility for the risk of a child being born with haemophilia. The claimant retained the risks of other pregnancy and birth complications, including autism.
3. The fact that autism would not have occurred in this particular pregnancy but for the negligence did not satisfy the scope-of-duty requirement. The necessary link was between the duty and the particular type of damage claimed. It was insufficient to identify pregnancy as an intermediate causal link and then attribute all foreseeable consequences of that pregnancy to the doctor.
4. Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 and Groom v Selby [2002] PIQR P18 were factually distinguishable because the doctors’ responsibilities concerned prevention of conception or continuation of an unwanted pregnancy generally. Chester v Afshar [2005] 1 AC 134 was also distinguishable: its reasoning depended on the injury being the very misfortune against which the duty to warn was owed. Autism was instead a coincidental injury outside the scope of the duty.
5. A separate assessment of whether liability was fair, just and reasonable was unnecessary where established principles supplied the answer. The approach in Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595 supported that conclusion. The agreed damages therefore fell to be assessed on the haemophilia-only basis at £1,400,000.

• Court of Appeal (Civil Division) allowed the appeal and held that autism-related losses fell outside the scope of the doctor’s duty.
• Queen’s Bench Division Yip J, [2017] EWHC 2990 (QB), held that the autism-related costs were recoverable and assessed damages at £9,000,000.