Simeon Maskrey QC successful in significant clinical negligence case on ‘scope of duty’

On Friday 23 November 2018 the Court of Appeal handed down judgment in Khan v MNX [2018] EWCA Civ 2609. The decision will have widespread implications for clinical negligence claims.

Facts

The Claimant wished to avoid having a child with haemophilia following the birth of her nephew with the condition. She attended her GP and blood tests were arranged. However, the blood tests undertaken could only ever establish whether the Claimant had haemophilia and not, crucially, whether she was a carrier (for which genetic testing would have been required). The Claimant returned to her GP following the blood tests and was led to believe that any child she would carry would not be a haemophiliac. The Claimant went on to have a haemophiliac child, who also suffered from unrelated autism.

The Claimant brought an action to recover for added costs of raising a child with haemophilia and autism; she did not seek the ordinary costs of raising a child without a disability in accordance with McFarlane v Tayside Health Board [2000] 2 AC 59.

The Defendant admitted breach of duty and accepted that but for the negligent information given by the Defendant the Claimant would not have had a child and would not have had to bear the costs of raising a child with haemophilia and autism. The Defendant, however, argued that whilst the added costs of raising a child with haemophilia were recoverable, the costs related to autism were not as they fell outside the scope of the duty of care assumed by the GP.

At first instance Yip J found for the Claimant on the basis that “but for” causation was met for the costs related to both haemophilia and autism.

Decision

The Court of Appeal, however, overturned the decision. Yip J, they said, had applied the wrong test. The court was required to apply the “scope of duty test” for causation as set out in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 [hereinafter “SAAMCO”]. This was a case involving the provision of negligent property valuation information. The House of Lords held that the Claimants could only recover for losses that were within the foreseeable scope of the breached duty of care. Losses arising from a drop in the property market were not recoverable. Per Lord Hoffman:

“The real question in this case is the kind of loss in respect of which the duty was owed…
…
Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.

I can illustrate the difference between the ordinary principle and that adopted by the Court of Appeal by an example. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

On the Court of Appeal’s principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctors bad advice because it would have occurred even if the advice had been correct.”

Lord Hoffman went on to distinguish between situations, as in SAAMCO, where the tortfeasor was under a duty to provide accurate information and the quite different position where someone is giving more general advice as to whether to take a course of action. In the former, the tortfeasor is responsible only for the consequences of the information being wrong. In the latter scenario they accept a wider responsibility of all the foreseeable consequences of that course of action having been taken.

In Khan v MNX, Nicola Davies LJ, with whom Hickinbottom LJ and the Senior President of Tribunals agreed, concluded that the Defendant had merely taken on a responsibility to provide accurate information on a narrow point and therefore the child’s autism was outside the scope of the GP’s duty of care. Per Nicola Davies LJ:

“Her advice was sought in respect of one issue, namely whether the respondent was a carrier of the haemophilia gene. It did not extend beyond that. The appellant was not asked, still less given relevant information, as to the respondent’s wishes generally as to any future pregnancy….Critically it was no part of that consultation, still less was any advice sought, that in the event that the respondent did give birth a child of hers could suffer from a condition such as autism.
…
The scope of the appellant’s duty was not to protect the respondent from all the risks associated with becoming pregnant and continuing with the pregnancy. The appellant had no duty to prevent the birth of FGN, this was a decision that could only be made by the respondent taking into account matters such as her ethical views on abortion, her willingness to accept the risks associated with any pregnancy and was outwith the limits of the advice/treatment which had been sought from the appellant.”

The Court of Appeal considered that the present case was in line with the analogy of coincidental causation provided by Lord Walker in Chester v Afshar [2005] 1 AC 134. Per Lord Walker:

“…if a taxi-driver drives too fast and the cab is hit by a falling tree, injuring the passenger, it is sheer coincidence. The driver might equally well have avoided the tree by driving too fast, and the passenger might have been injured if the driver was observing the speed limit.”

Analysis

This is a highly significant decision on causation. Defendants will seek to apply the SAAMCO scope of duty test for causation broadly. It opens a defence to cases of “piggy-back causation” i.e., where a Claimant seeks advice about condition A, which, had the advice been competent would have led to condition B being diagnosed and treated. At present Claimant lawyers assume that if the “but for test” is met then liability will follow; Khan v MNX suggests otherwise.

The facts of Khan v MNX are important. The Court of Appeal found that the GP was only providing information on a very narrow point and not giving advice more generally. Khan can be distinguished from the sterilisation and failure to detect pregnancy cases such as Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 and Groom v Selby [2002] PIQR P18 because in those cases the clinicians had assumed a responsibility to protect the patients from an unwanted pregnancy. In Khan the GP had only provided information on a single narrow issue and it was then for the Claimant to make a decision as to whether she wanted to have a child or not. This was a complex multi-faceted decision involving medical and non-medical factors that the Defendant GP had no part in.

The SAAMCO test has been applied previously in personal injury litigation. In Darby v National Trust for Places of Historic Interest or Natural Beauty [2001] EWCA Civ 189 it was found that a breach of duty for a failing to prevent swimming in a pond because of the risk of contracting Weils disease could not support a claim for damages arising from the Claimant drowning whilst swimming in the same pond.

A taste of things to come in this jurisdiction can be gauged from Australian case law. The scope of duty test for causation was applied in Wallace v Kam [2013] HCA 19. In Wallace the Claimant attended a neurosurgeon as regards a lumbar spine condition. The surgeon failed to advise as to the surgical risks of local nerve damage and the different and separate risk of paralysis. The Claimant underwent surgery and suffered local nerve damage. But for causation was met; had the Claimant been properly advised he would have been concerned as to the risks of paralysis and would have decided not to undergo the surgery. However, liability did not follow as the Claimant accepted at trial that the risk of local nerve damage alone would not have dissuaded him from undergoing the procedure. In the circumstances the court held that the failure to warn as to paralysis did not extend to liability for local nerve damage.

It is clearly in cases of clinical failure to warn that Khan will have the greatest significance. A patient who is negligently not warned as to risk A is unlikely to be able to recover if he or she succumbs to risk B during surgery. The ramifications may, however, prove to be wider. Expect Lord Hoffman’s mountain climber analogy in SAAMCO and Lord Walker’s taxi-driver analogy in Chester v Afshar to be making regular appearances going forwards as it is argued that coincidental causation is not enough to found liability.

The appellant in Khan v MNX was represented by Simeon Maskrey QC.

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