If a child would not have been born but for a doctor’s negligent failure to advise of the risk of being born with a hereditary disability, and having been born not only has that hereditary disability but also a further congenital disability, can the mother of the child recover damages for the cost of both disabilities or only the costs associated with the hereditary disability in relation to which the doctor was asked to advise?  That was the question the Supreme Court were tasked with answering in the case of Khan (Respondent) v Meadows (Appellant) [2021] UKSC Civ 152.

On 18 June 2021 the Supreme Court handed down the eagerly anticipated judgment. The appeal was unanimously dismissed. 7BR’s Simeon Maskrey QC successfully represented the Respondent as lead counsel.

The appeal concerned whether, in the context of a claim in clinical negligence, the Court should follow the approach to ascertaining the scope of a defendant’s duty of care laid down in the case of South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (‘SAAMCO’) and, if so, how that approach is to be applied.  The case turned primarily on the principle that where a defendant provides a service by way of advice or information they will only be liable in damages for losses of a kind which fall within the scope of duty of care.

It should be noted that Khan v Meadows is one of two appeals heard by the same panel of seven justices examining the application of SAAMCO in different areas. It was handed down and should be read with the Court’s judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. Manchester Building Society considers the application of the SAAMCO principles in a more typical financial setting, where the defending accounting firm negligently advised the claimant building society as to a method of accounting which led them to form contracts which on discovering the negligence had to be ended at significant cost. In that case all losses were within the scope of duty, albeit there was a significant finding of contributory negligence.

The full article, written by Nia Frobisher, can be viewed here.

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