Nixson, Wendy --- "Khan v Meadows: Is factually caused loss within the scope of duty of care?" [2022] PrecedentAULA 4; (2022) 168 Precedent 8

---

KHAN v MEADOWS

IS FACTUALLY CAUSED LOSS WITHIN THE SCOPE OF DUTY OF CARE?

By Wendy Nixson

Khan v Meadows^[1] is a wrongful birth decision of the UK Supreme Court involving medical advice received by Ms Meadows relating to her possible haemophiliac status. Equally, it involves her claim for the costs related to the upbringing of her son Adejuwon arising from his disabilities, namely haemophilia and autism.

The case works through the methodology of analysing tortious liability in the context of a medical professional’s duty to provide advice or information. It shows us that, in whatever way liability is contemplated, the law in this area is very much determined by the nature of the service provided by the professional. This article examines Khan and the light it sheds on the ‘scope of duty’ principle, in Australia as well as overseas.

FACTUAL BACKGROUND

Ms Meadows consulted Dr Khan on 25 August 2006. She had previously consulted Dr Khan’s colleague at the same general practice with concerns about her possible haemophiliac status, as her nephew had been born with the condition months earlier. Blood tests were ordered and the results of those tests were discussed with Ms Meadows at the consultation with Dr Khan. The results were said to be normal and Ms Meadows therefore believed she was not a carrier of haemophilia and could not pass the condition on to any child she might bear thereafter.

Ms Meadows became pregnant in late 2010 and gave birth to Adejuwon in September 2011. Shortly afterwards he was diagnosed with haemophilia. Ms Meadows was referred for genetic testing, which confirmed that she was indeed a carrier of the gene for haemophilia.

It was alleged and agreed that Ms Meadows ought to have been referred by Dr Khan for genetic testing in 2006, and that this would have confirmed her status. It was also admitted that, had she been aware of this status, she would have undergone foetal testing for haemophilia during her pregnancy and, in the event that the foetus was affected, she would have undergone termination; as such, Adejuwon would never have been born.

In 2015, Adejuwon was also diagnosed with autism. It was not alleged that the haemophilia had caused the autism or made it more likely that he would have autism, but it was alleged that autism made the management of Adejuwon’s haemophilia more complicated.

PROCEDURAL HISTORY

Court at first instance^[2]

Prior to the trial before Yip J, the factual background was agreed between the parties. The plaintiff, Ms Meadows, relying on the principles established in Parkinson v St James and Seacroft University Hospital NHS Trust (Parkinson)^[3] and Groom v Selby (Groom),^[4] alleged that, since it was established that her pregnancy would not have continued had her genetic disposition been known, Dr Khan was liable for all disability-related consequences of the pregnancy.

The defendant sought to draw a distinction between ‘wrongful birth’ and ‘wrongful conception’ claims, alleging that, in differentiating this case from one where a mother specifically sought to avoid a pregnancy entirely,^[5] Ms Meadows accepted the normal risks of having a child, including the development of autism, and that ‘it was not fair, just and reasonable to transfer those risks from parent to doctor’.^[6]

The defendant relied on a decision of South Australia Asset Management Corporation v York Montague Ltd (SAAMCO)^[7] regarding a pure economic loss claim because of its particular relevance to whether certain losses could fall within the scope of a professional's duty of care – the ‘scope of duty’ test. The defendant alleged that Adejuwon’s autism was ‘not the kind of loss in respect of which the defendant’s duty was owed’.^[8]

Justice Yip rejected this proposition and ultimately found for the plaintiff, awarding the amount of £9,000,000 previously agreed between the parties and succinctly concluding that:

‘[t]he Court of Appeal has decided in Parkinson and Groom that recovery for the costs associated with a disability not directly linked to the negligence is fair where the disabled child would not have been born but for the negligence and where the disability arises out of the normal incidents of conception, intra-uterine development and birth. I can see no good reason to distinguish this case as a matter of principle or policy.’^[9]

Court of Appeal

Dr Khan’s appeal of the decision^[10] was unanimously allowed, on the basis that her duty did not extend beyond her advice with respect to Ms Meadows’ haemophiliac status.

Supreme Court

In November 2020, Ms Meadows appealed to the UK Supreme Court.^[11] The Court considered whether it should follow the approach in SAAMCO and, if so, how the approach should be applied. The Court unanimously dismissed the appeal in June 2021.^[12]

The respondent asserted that the SAAMCO approach was not relevant because ‘cases of clinical negligence did not give rise to the risk of indeterminate liability which can arise in commercial cases involving pure economic loss’.^[13] However, the Court found there was ‘no principled basis for excluding medical negligence claims from the ambit of the scope of duty principle’^[14] and used SAAMCO to inform a ‘helpful model’^[15] for:

‘analysing the place of the scope of duty principle, ... [which] consists of asking six questions in sequence ...:

(1) ‘Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2) What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3) Did the defendant breach his or her duty by his or her act or omission? (the breach question)

(4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)

(5) Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)

(6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).’^[16]

The Court acknowledged that questions 2 and 5 (the ‘scope of duty’ questions) were most likely to be considered at the same time in the sequence; that is, before the questions of breach and both factual and legal causation,^[17] and that in this case:

‘the answer to the scope of duty question points to a straightforward answer to the duty nexus question: the law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy’.^[18]

Lord Leggatt affirmed the application of the ‘scope of duty’ principle on the grounds that:

‘it is not fair and reasonable to impose on a professional adviser liability for adverse consequences which a person relying on the advice would have suffered even if the advice had been sound. To do so is to treat an adviser ... as if the adviser had a responsibility to protect the claimant against risks unrelated to that matter.’^[19]

SAAMCO counterfactual argument

In addition to the above framework, the Court also considered that applying a ‘SAAMCO counterfactual’ at the conclusion, that is, a means of determining any loss which is attributable to provision of the correct information, was unlikely to be necessary in most medical negligence cases because adopting the framework above would conclude all necessary components. However, the Judges all did apply it as a ‘cross-check’ and noted that ‘[t]he undisputed answer is that Adejuwon would have been born with autism’^[20] and therefore the losses associated with his autism were not recoverable.

What is clear from this decision is that in medical negligence cases the purpose and nature of the service offered by the medical practitioner is of primary importance in determining what risks the practitioner should take reasonable care to avoid.

APPLICATION IN AUSTRALIA

The Court’s approach in this case highlights the complexities of working through the principles of tortious liability, for which ‘there is no one generally accepted formula for analysing that interrelationship in a claim in negligence.’^[21] The same can be said for cases of tortious liability in Australia but here we have an added overlay of similar, though not identical, state and territory statutory provisions codifying those principles. As anyone who practises in the area is aware, most cases turn on their own facts, so it is unsurprising, but somewhat disappointing, that across the last decade the High Court of Australia has contemplated the medical professional’s duty to warn or provide information in only one case: Wallace v Kam^[22] (Wallace).

The approach in Khan appears to expand and prioritise the element of duty (to include a ‘duty nexus’ question) beyond the formulation of our civil liability legislation. What is described as the ‘scope of duty’ test is arguably just a rewrite of our own ‘scope of liability’ – that is, the normative causation provisions found within our collective Civil Liability Acts.^[23] And what is described as the ‘legal responsibility question’ is far more suited to our general principles of duty and breach. Determining the appropriate sequence of the relevant principles is what makes these cases all the more challenging. Wallace is instructive here. The High Court explained that ‘the scope of liability for the consequences of negligence is often coextensive with the content of the duty of the negligent party that has been breached.’^[24]

Wallace involved a lumbar spine procedure which carried a number of significant risks, one being bilateral femoral neurapraxia, which ultimately eventuated, and another being paralysis, which did not. Mr Wallace claimed damages relating to his condition on the basis that, had he been warned of either risk, he would not have chosen to undergo the procedure and hence would have avoided the neurapraxia.

The trial Judge found that Dr Kam had failed to warn of neurapraxia, but did not make a finding with respect to the failure to warn of paralysis, on the basis that ‘the legal cause of [the neurapraxia] in the plaintiff could never be the failure to warn of some other risk that did not materialise’.^[25] Mr Wallace appealed to both the Court of Appeal and the High Court and each appeal was dismissed.

The High Court stated that the ‘framework for analysis’ was duty, breach and causation of damage (seemingly far simpler than the framework in Khan but in fact contemplative of its duty nexus question), and unanimously held that:

1. Dr Kam owed a duty to exercise reasonable care and skill in the provision of professional advice and treatment;

2. Dr Kam breached that duty by failing to warn of the risks of neurapraxia and paralysis;

3. That failure was a necessary condition of Mr Wallace developing neurapraxia because, if warned of all risks, he would have chosen not to undergo the procedure;

4. The scope of Dr Kam’s liability ought not to extend to the neurapraxia, where Mr Wallace would have chosen to undergo the surgical procedure if he had been warned just of that risk eventuating; and

5. Mr Wallace was ‘not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept’.^[26]

The Court of Appeal in Waller v James [2015] NSWCA 232 (probably the most recent case akin to Khan) for similar reasons found that the scope of the medical practitioner’s liability did not extend to the child’s disability. Keeden Waller’s parents claimed damages for the cost of raising Keeden arising from his disabilities, which they claimed came about because Dr James had failed to properly advise them with respect to the hereditary aspects of anti-thrombin deficiency (ATD). In fact, Keeden suffered a stroke – cerebral venous sinus thrombosis (CSVT) – at four days of age and it was this that rendered him profoundly disabled. Much like Khan, the parents claimed that had they received the correct information they would have deferred IVF, and as such they would not have had a child who suffered a stroke.

The Court determined the case according to the common law since the treatment predated the Civil Liability Act 2002 (NSW), with all issues being in dispute. The Court upheld the two key factual findings that:

1. Dr James breached his duty of care because he did not properly explain the reason for the referral for genetic counselling and did not properly follow up that referral; and

2. Keeden’s parents would not have elected to have Keeden if properly informed.

And in addition the Court noted the following:

3. The risk of ATD materialised but no loss was shown to have been caused by it (much like the case of Wallace);^[27]

4. The harm suffered by Keeden’s parents, consequent on his disabilities, was not causally connected to the breach of duty, as the CSVT was coincidental to the inheritance of ATD (much like the case of Khan, particularly when the SAAMCO counterfactual is applied);

5. In fact, the harm was not within the ‘scope of the risk’ created by the negligence,^[28] an approach akin to the Khan ‘scope of duty’ test; and

6. The risk was not ‘relevantly foreseeable’^[29] and therefore it was too remote to be recoverable.^[30]

DAMAGES

Although the above wrongful birth cases did not specifically address the issue of damages, it is worth noting, for cases such as these, that the NSW, Queensland and SA Civil Liability Acts contain specific provisions which preclude the award of damages to cover the ordinary costs of raising a child, although they do permit recovery of the additional costs associated with rearing or maintaining a child with disability.^[31] It is still open in claims in the other states and territories to recover all costs associated with raising the child – for example, most recently in O'Loughlin v McCallum [2021] WADC 77, where liability was admitted for a failed sterilisation procedure which resulted in the birth of a healthy baby.

CONCLUSION

The Khan case articulates the difficulty international courts have in identifying a clear starting point for determining negligence. However, it also shows that a clearly defined scope of the duty of care will inevitability make it far easier to decide the breach and factual causation elements. To reach that defined point, our courts might have to ‘bring forward’ their contemplation of the scope of liability from its traditional standpoint of causation, because a ‘defendant’s act or omission may ... have consequences which, because they are not within the scope of his or her duty of care, do not give rise to liability in negligence’.^[32]

Wendy Nixson is State Practice Leader (Queensland and WA) – Medical Law at Shine Lawyers. PHONE [phone]. EMAIL [e-mail].

---

^[1] [2021] UKSC 21 (Khan).

^[2] MNX v Dr Hafshah Khan [2017] EWHC 2990 (QB) (MNX).

^[3] [2001] EWCA Civ 530; [2002] QB 266.

^[4] [2001] EWCA Civ 1522; [2002] PIQR P18.

^[5] A distinction very much at odds with the rationale of the Civil Liability Act 2003 (Qld) provisions, which impose restrictions only on the damages awarded to those specifically seeking to avoid pregnancy entirely (see further discussion below).

^[6] MNX, above note 2, [50].

^[7] [1996] UKHL 10; [1997] AC 191.

^[8] Ibid, [34].

^[9] Ibid, [71].

^[10] Khan v Meadows [2019] EWCA Civ 152.

^[11] Khan, above note 1.

^[12] The lead judgment was given by Lord Hodge and Lord Sales (with whom Reed J, Black LJ and Kitchin J agreed) and, while Lord Burrows and Lord Leggatt agreed in principle, they provided their own views on the scope of duty question.

^[13] Khan, above note 1, [21].

^[14] Ibid, [62].

^[15] Lord Burrows disagreed about the helpfulness of this method, suggesting a ‘relatively conventional’ seven question approach. Ibid, [79].

^[16] Ibid, [28].

^[17] Ibid, [38].

^[18] Ibid, [68].

^[19] Ibid, [90].

^[20] Ibid, [68].

^[21] Ibid, [24].

^[22] [2013] HCA 19 (Wallace).

^[23] Civil Law (Wrongs) Act 2002 (ACT), s45; Civil Liability Act 2002 (NSW), s5D; Civil Liability Act 2003 (Qld), s11; Civil Liability Act 1936 (SA), s34; Civil Liability Act 2002 (Tas), s13; Wrongs Act 1958 (Vic), s51; and Civil Liability Act 2002 (WA), s5C.

^[24] Wallace, above note 22, [26].

^[25] Wallace v Ramsay Health Care Ltd [2010] NSWSC 518, [96].

^[26] Wallace, above note 22, [39].

^[27] Waller v James [2015] NSWCA 232, [187].

^[28] Ibid, [209].

^[29] Ibid, [201].

^[30] Ibid, [208].

^[31] Civil Liability Act 2002 (NSW), ss70, 71; Civil Liability Act 2003 (Qld), ss49A, 49B; Civil Liability Act 1936 (SA), s67.

^[32] Khan, above note 1, [58].