Doctors’ scope of duty for wrongful birth: an analysis of Dr Hafshah Khan v MNX [ 2018 ] EWCA Civ 2069

THE FACTS The Respondent’s nephew had been born in January, 2006 and was subsequently diagnosed with haemophilia. The Respondent wished to avoid having a child with that condition and so consulted her GP in August, 2006 to ascertain whether she carried the haemophilia gene. Blood tests were arranged. The tests were to confirm whether the Respondent had the condition and not if she was a carrier of the gene. In order to determine her position , the Respondent would have had to be referred to an haematologist for genetic testing. On 25^th August, 2006, the Respondent saw the Appellant to discuss blood tests and was told that the results were normal. As a result she was left to believe that any child she had would not have had haemophilia.   The Respondent became pregnant with  FGN in 2010 and shortly after birth he was diagnosed with haemophilia. The Respondent was referred for genetic testing which confirmed she was a carrier of the haemophilia gene. Had the Respondent been referred for genetic testing in 2006 she would have known she was a carrier of the gene before she became pregnant and she would have undergone foetal testing for haemophilia which would have revealed that the foetus was affected. In these circumstances, the Respondent would have terminated the pregnancy and FGN would not have been born. In December, 2015 FGN was diagnosed with autism. The fact that FGN had haemophilia did not cause his autism or make it more likely that he would have autism. The Appellant admitted that but for her negligence FGN would not have been born as his mother would have properly discovered during her pregnancy that he was afflicted by haemophilia and she would have undergone a termination of the pregnancy. The issue at trial before Mrs Justice Yip was whether, as a matter of law, the Appellant’s liability was limited to the additional losses associated with FGN’s haemophilia or whether she was liable for the additional losses associated with both his haemophilia and autism By an order dated 8^th February, 2017 the Appellant consented to judgment being entered on the basis of the allegations of breach of duty and causation as set out in the Particulars of Claim. Prior to trial the parties reached agreement in relation to quantum on the basis that :

1. If the court determined that the Appellant was liable for the additional losses associated with FGN’s haemophilia and rejected the Respondent’s claim that the Appellant was also liable to the additional losses associated with FGN’s autism , quantum was agreed in the sum of £1,400,000. These losses would have applied for wrongful birth due to disability having regard to Parkinson v St James’ & Seacroft University Hospital NHS Trust [ 2002 ] QB 266 and Groom v Selby [ 2002 ] PIQR P18.
2. If the court determined that Appellant was liable for the additional losses associated with FGN’s haemophilia and autism, quantum was agreed in the sum of £9,000,000.

Mrs Justice Yip found that the Respondent was entitled to damages in respect of bringing up FGN due to his haemophilia and that she was also entitled to the additional costs in relation to FGN’s autism, albeit that it was an unrelated condition.  On a simple application of the “ but for “ test of causation the costs flowed from the negligence as FGN would not have been born. Damages therefore followed in the sum of £9,000,000 as per the agreement reached as between the parties.   THE COURT OF APPEAL The Appellant appealed with permission granted by Mrs Justice Yip on the basis that in finding that she was liable for damages associated with both FGN’s haemophilia and autism, Mrs Justice Yip had misapplied the scope of duty test set down by Lord Hoffman in South Australia Asset Management Corpn v York Montague Ltd [ 1997 ] AC 191  ( Hereinafter “ SAAMCO “ ). The reasoning behind the test is that in order to protect a defendant from liability for every foreseeable factual consequence of their negligence the courts have placed an additional test on the consequences of a breach that are considered to be within the appropriate scope of the defendant’s liability, namely the requirement that the particular loss claimed must be within the “ scope of duty “. The Appellant had not undertaken to provide any information or advice about the risks of autism, and the negligence had not contributed to the autism. The leading judgment was give by LJ Nicola Davies DBE. The Court of Appeal determined that the SAAMCO “ scope of duty “ test was relevant and determinative of the issues in the case. Given the limits of the advice sought by the Respondent and the appropriate testing ,Mr  Maskrey QC on behalf of the Appellant , identified three questions that it was for the court to address :

1. The purpose of the procedure and/or information that was alleged to have been negligent ;
2. The appropriate apportionment of risk taking into account the nature of the advice, procedure and information ; and
3. The losses which would in any event have occurred had the correct information been given or the procedure performed ?

Davies LJ found that :

1. In the Respondent’s case the purpose behind the consultation was to allow her to make an i. informed decision in respect of any child that she may subsequently conceive and who was carrying the haemophilia gene. The specific enquiry was related to whether any future child would carry the haemophilia gene, therefore it would be inappropriate and unnecessary for any doctor to volunteer any other additional information about the risks of pregnancy, including that of autism.
2.  In terms of the apportionment of risk that would be split as between the risks of the Respondent  giving birth to a child with haemophilia due to no foetal testing and thereby no termination of pregnancy, as against the risks to her of all other potential difficulties of the pregnancy and birth both as to herself and the child
3. . The loss that would have been sustained had the correct information and testing been given and performed is that FGN would have been born with autism.

 The scope of the Appellant’s  duty did not extend to all the risks of pregnancy and the continuation with pregnancy. The Appellant  had no duty to prevent FGN’s birth. This was a decision that could only be made by the Respondent taking into account a multiplicity of factors, such as her ethical views, her willingness to accept the risks associated with pregnancy and was outside the limits of any advice/treatment sought from the Appellant.  It had not been part of the Respondent’s case that the Appellant had a duty to advise more generally in relation to the risks of any future pregnancy. The risk of autism was not increased by the Appellant’s  advice, “ the purpose and scope of her duty was to  advise and investigate in relation to haemophilia in order to allow the Respondent  the opportunity to avoid the risk of a child being born with haemophilia “. In reaching the conclusion that she did namely that the Appellant should be liable for a type of loss that did not fall within the scope of the Appellant’s duty to protect the Respondent against , Mrs Justice Yip was said to have reverted  the “ but for “ causation test and not the appropriate SAAMCO “ scope of duty test “. The SAAMCO test required there to be an adequate link between the actual breach of duty and the loss claimed. In this context  Davies LJ stated that  “ It is insufficient for the court to find that there is a link between the breach and the stage in the chain in causation, in this case the pregnancy itself , and thereafter to conclude that the Appellant is liable for all the reasonably foreseeable consequences of the pregnancy “.  In finding that the Respondent  was deprived of the opportunity to terminate the pregnancy , reference was had to one of the chains of causation , whereas SAAMCO required that the link had to be between the scope of duty and the damage sustained.  “ In the context of this case the development of autism was a coincidental injury and not one within the scope of the Appellant’s duty “ . The most appropriate analogy of the co-incidental injury and not one within the scope of the Appellant’s duty is that identified by Lord Walker in Chester v Afshar [ 2005 ] 1 AC 134 where he stated : “ If a taxi driver drives too fast and the cab is hit by a falling tree , injuring the passenger, it is a 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 ….. “. COMMENT Mrs Justice Yip had reverted to  the “ but for “ test of causation when in fact she ought more properly to have applied the “ scope of duty “ test applied in SAAMCO. The scope of the duty was narrow .  It was limited to whether the Respondent was a carrier of the haemophilia gene and did not extend beyond that .The distinction as between this case and Parkinson and Groom was that there was no duty to prevent the pregnancy. The case has important ramifications as to the scope of duty to be applied in wrongful birth cases. Jonathan Godfrey - Barrister, Parklane Plowden Chambers