Meadows v Khan  EWCA Civ 152
This article originally appeared in Issue 1 (May 2019).
In this case the Court of Appeal confirmed that when considering the question of liability for damages in negligence for wrongful birth, the correct test was the ‘scope of duty’ test in Australia Asset Management Corp v York Montague Ltd  AC 191 (“SAAMCO”), rather than the simple ‘but for’ causation test. The Defendant doctor should be liable only for the type of loss which fell within the scope of her duty to protect the Claimant mother against.
Before becoming pregnant, the Claimant mother had wanted to establish whether she carried the haemophilia gene. Blood tests were arranged and when she saw the Defendant doctor she was advised that the results were normal and was led to believe that any child she had would not have haemophilia. However, in order to establish whether she was a carrier, genetic testing (rather than blood testing) would have been required. When she subsequently became pregnant and gave birth to a son, who had both haemophilia and autism, she brought a claim for damages based on wrongful birth.
The Defendant doctor admitted that, but for her negligence, the child would not have been born because the mother would have undergone fetal testing for haemophilia during her pregnancy and would have had a termination. Prior to trial, the parties agreed that if the court determined that the doctor was liable for the additional losses associated with both haemophilia and autism, she was entitled to quantum in the sum of £9,000,000. However, if the court rejected the claim arising from the additional losses associated with autism, quantum was limited to the sum of £1,400,000.
At first instance, the court found that the mother was entitled to the additional costs arising from the autism, even though it was unrelated to the haemophilia. The doctor appealed against that decision.
The Court of Appeal allowed the doctor’s appeal. Lady Justice Nicola Davies gave the lead judgment. She noted that the purpose of the mother’s consultation with the doctor was “directed at the haemophilia issue and not the wider issue of whether, generally, the Respondent should become pregnant.” Given the limits of the advice sought and the appropriate testing which should have been provided, the scope of duty test identified by Lord Hoffman in SAAMCO was not only relevant but determinative of the issues.
Application of the SAAMCO test
The court accepted that, in applying the SAAMCO test, the court had to establish: (i) the purpose of the procedure/information/advice which was alleged to have been negligent; (ii) the appropriate apportionment of risk; and (iii) the losses which would have been sustained if the correct information had been given.
In the instant case, the purpose of the consultation was to establish whether the mother was a carrier of the haemophilia gene to enable her to make an informed decision in respect of any child which she conceived. Given the specific purpose of her enquiry, it would be inappropriate and unnecessary for a doctor at such a consultation to volunteer any information about other risks of pregnancy including the risk of autism. That was a decision for the mother to take having considered a number of factors. The case was therefore different from the wrongful birth cases such as Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530, and Groom v Selby  EWCA Civ 1522, where the duty was to prevent conception/birth of a child and the respective defendants were held to assume responsibility for all of the problems associated with those unwanted pregnancies.
As to the apportionment of risk, the doctor would be liable for the risk of giving birth to a child with haemophilia. The mother would take the risks of all other potential difficulties of the pregnancy and birth, including the risk of having a child born with autism, an unrelated risk which was not increased by the doctor’s negligent advice.
Therefore, the loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism.
The incorrect application of the ‘but for’ causation test
Nicola Davies LJ explained that, in concluding that the doctor should be liable for the losses associated with autism – a type of loss that did not fall within the scope of her duty to protect the mother against – the trial judge did not apply the SAAMCO ‘scope of duty’ test but reverted to the ‘but for’ causation test.
The SAAMCO test required there to be an adequate link between the breach of duty and the particular type of loss claimed. It was not enough to find there was a link between the breach of duty and a stage in the chain of causation – in this case, the pregnancy itself – and then conclude the Defendant was liable for all the reasonably foreseeable consequences of that stage, i.e. the pregnancy.
The trial judge had erred in drawing an analogy with Chester v Afshar  UKHL 41, where the misfortune which befell the claimant was the very misfortune which was the surgeon’s duty to warn against and therefore was within the scope of defendant surgeon’s duty. In contrast, in this case, autism was a coincidental injury and not within the scope of the doctor’s duty. It was closer to the analogy of the mountaineer’s knee in SAAMCO or Lord Walker’s example of the speeding taxi-driver in Chester.
SAAMCO was determinative
Nicola Davies LJ made clear that it was not necessary for the court to consider whether it was fair, just and reasonable to impose liability for the additional costs associated with autism. The established principles in SAAMCO encompassed those concepts and it was neither necessary nor desirable for the court to express a subjective view. Moreover, it was not a novel type of case where the established principles do not provide an answer and required the courts to go beyond those principles in order to decide whether a duty of care should be recognised.