Khan v Meadows

In negligence, a defendant is liable only for losses falling within the risks against which the duty of care required protection. The scope of duty principle is general. It applies to clinical negligence as well as professional advice causing pure economic loss.

For advice or information, the court identifies the purpose of the service and the risk it was intended and reasonably understood to address. Factual “but for” causation and foreseeability cannot enlarge that scope. A clinician advising on a specific genetic risk does not ordinarily assume responsibility for an unrelated disability arising from the general risks of pregnancy.

The SAAMCO counterfactual may assist but is not universal. It asks whether the same loss would have occurred if the information had been correct while the claimant acted as they did.

Ms Meadows consulted a general medical practice to discover whether she carried the haemophilia gene. Dr Khan negligently led her to believe that she was not a carrier. Ms Meadows later gave birth to a son with haemophilia and autism. The autism was unrelated to the haemophilia and was not made more likely by it.

Had correct genetic advice been given, Ms Meadows would have obtained foetal testing and terminated the pregnancy after discovering the haemophilia. Dr Khan admitted liability for the additional costs attributable to haemophilia but denied liability for the much larger costs attributable to autism.

Yip J, in [2017] EWHC 2990 (QB); [2018] 4 WLR 8, awarded £9m for both conditions. The Court of Appeal, in [2019] EWCA Civ 152; [2019] 4 WLR 26, reduced the award to £1.4m. The central issue was whether the autism-related costs fell within the scope of the risk against which Dr Khan owed a duty of care.

Appeal dismissed unanimously. Lord Hodge and Lord Sales delivered the majority judgment, with which Lord Reed, Lady Black and Lord Kitchin agreed. Dr Khan was liable only for the costs attributable to haemophilia. Lord Burrows and Lord Leggatt agreed in the result in separate judgments.

1. The scope of duty principle is a general principle of the law of damages. It is not confined to commercial transactions or pure economic loss and applies to clinical negligence. A defendant is liable only for consequences falling within the risks against which the duty of care required protection.

2. The majority offered a helpful, non-exclusive six-question model: actionability, scope of duty, breach, factual causation, duty nexus and legal responsibility. The scope question asks what risks of harm the defendant was required to protect the claimant against. Where advice or information contributes only part of the claimant’s decision-making, the court must identify the purpose of the service and separate losses attributable to the risk for which responsibility was undertaken.

3. Factual “but for” causation and reasonable foreseeability do not answer the scope question. Foreseeability may be relevant, but the nature and purpose of the service are principal considerations. Nor was it necessary to ask separately whether liability was fair, just and reasonable, because established negligence principles governed the case: Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.

4. The SAAMCO counterfactual is an analytical tool rather than a universal test. It assumes that the claimant acted as they actually did and asks whether the same loss would have occurred had the information been correct. It may confirm the allocation of risk, but the scope of duty can sometimes be determined without it.

5. Dr Khan’s service concerned the specific risk that Ms Meadows might give birth to a child with haemophilia. It did not concern unrelated risks inherent in any pregnancy. Although Dr Khan’s negligence factually caused the continuation of the pregnancy and autism was foreseeable, the autism-related costs lacked the necessary connection with the subject matter of her duty. Had the advice been correct, the child would still have been born with autism.

6. Lord Burrows preferred a conventional seven-question structure and emphasised fair allocation of risk. Lord Leggatt considered the wider analysis of negligence unnecessary. He framed the inquiry as whether the loss was causally connected with the subject matter for which the professional undertook responsibility. He also observed that a doctor’s duty may extend to an unrequested matter posing a material risk which the doctor ought to recognise. These differences did not affect the disposition.

1. United Kingdom Supreme Court: In Khan v Meadows [2021] UKSC 21, unanimously dismissed Ms Meadows’ appeal and left the Court of Appeal’s £1.4m award undisturbed.
2. Court of Appeal: In [2019] EWCA Civ 152; [2019] 4 WLR 26, allowed Dr Khan’s appeal, held that autism-related costs fell outside her duty and reduced the award from £9m to £1.4m.
3. High Court: Yip J, in [2017] EWHC 2990 (QB); [2018] 4 WLR 8, held Dr Khan liable for the additional costs associated with both haemophilia and autism and awarded £9m inclusive of interest.