Khan v Meadows

In negligence, but for causation does not make a defendant liable for every foreseeable consequence of a resulting pregnancy or course of action. Liability is confined by the scope and purpose of the duty undertaken. Where advice and testing address a specific genetic risk, the doctor is responsible for losses attributable to that risk, but not for an independent pregnancy risk which the advice neither increased nor addressed. Established scope-of-duty principles, including those in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, ordinarily make a separate assessment of what is fair, just and reasonable unnecessary.

Dr Hafshah Khan admitted negligence in failing to arrange genetic testing and correctly advise Ms Omodele Meadows whether she carried the haemophilia gene. It was accepted that, with proper advice, Ms Meadows would have undergone foetal testing and terminated the pregnancy. Her son would therefore not have been born, but the risk of autism was not increased by the negligence and autism arose in that pregnancy.

Yip J held that the additional costs associated with both haemophilia and autism were recoverable and assessed agreed damages at £9 million: [2017] EWHC 2990 (QB). The appeal concerned whether the appellant’s duty extended beyond haemophilia-related loss to the autism-related losses.

1. The appeal was allowed. The appellant was not liable for the additional losses associated with autism. On the parties’ agreed figures, liability was therefore limited to the haemophilia-related losses, quantified at £1.4 million.
2. The governing question was the scope of the appellant’s duty. The Court applied the approach in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, under which a defendant who supplies information for another person’s decision is generally liable for the foreseeable consequences of the information being wrong, not for every consequence of the decision taken. Hughes-Holland v BPE Solicitors and Another [2017] UKSC 21 confirmed the distinction between information and advice and that the principle concerns the scope of responsibility rather than factual causation.
3. The relevant inquiry required the court to identify: the purpose of the consultation, information or procedure; the proper apportionment of risk having regard to its nature; and the loss which would have occurred even if correct information had been supplied or the procedure properly performed.
4. The consultation and testing were directed specifically to whether Ms Meadows carried the haemophilia gene. The appellant had not undertaken to protect her from all risks associated with pregnancy, had not been asked to advise generally whether she should become pregnant, and had no information about the wider factors bearing on that decision. The risk of autism remained one that Ms Meadows accepted, and it was not increased by the appellant’s negligence. The autism-related loss was therefore outside the scope of duty.
5. Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 and Groom v Selby [2002] PIQR P18 were distinguishable because the duties there were directed to preventing conception or an unwanted pregnancy in a broader sense. Chester v Afshar [2005] 1 AC 134 did not assist: its reasoning depended on the injury being the very risk against which the duty to warn operated. Here autism was a coincidental injury outside the duty.
6. Following Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595, no separate fairness inquiry was required where established principles supplied the answer. Lord Justice Hickinbottom and the Senior President of Tribunals agreed with Lady Justice Davies.

1. Court of Appeal (Civil Division): allowed the appeal and limited recoverable loss to the agreed haemophilia-related sum.
2. Queen’s Bench Division: Yip J held that autism-related as well as haemophilia-related losses were recoverable and assessed agreed damages at £9 million: [2017] EWHC 2990 (QB).