This article originally appeared in Issue 2 (July 2019).
One of the recurring themes in negligence case-law over the past 12 months has been the extent to which some or all aspects of a claimant’s claimed damage should be determined to lie within the scope of a defendant’s duty of care.
The contours of the issue are shaped by the fact that in the vast majority of negligence cases, traditional ‘but for’ causation and the existence of a duty of care are both necessary but not always sufficient conditions for establishing liability. As Lord Hope observed in Chester v Afshar [2004] UKHL 41 at [51] that “…damages can only be awarded if the loss which the claimant has sustained was within the scope of the duty to take care.”
One difficulty with the issue of scope of duty was created by the somewhat Delphic judgment in Chester itself – in which the House of Lords had held that the issue of causation was to be addressed by reference to the scope of the doctor’s duty, and since the injury sustained was within the scope of the defendant’s duty to warn and was the result of the risk of which the claimant was entitled to be warned, the injury was to be regarded as having been caused by the defendant’s breach of that duty. The potentially wide consequences of that exception or ‘modification’ to traditional causation principles has been a series of decisions since Chester in which the courts have sought to confine the authority and scope of the judgment in a number of ways.
It should of course be highlighted that despite the attempts made using Chester and also Montgomery v Lanarkshire Health Board [2015] UKSC 11 to argue that there is a freestanding cause of action for invasion of personal autonomy where there had been a failure to obtain informed consent, the lack of any such cause of action has been recently and authoritatively confirmed in both Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 and Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585.
The most significant way in way the decision in Chester has been confined is by building on the analysis of the scope of duty in South Australian Asset Management Corporation v York Montague Ltd (“SAAMCO”) [1997] AC 191 – a case that was not cited or considered in Chester. Lord Hoffmann held that,
“[r]ules 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.”
He emphasised that the general principle was that
“a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties.”
Lord Hoffman used the example of a mountaineer who was about to undertake a difficult climb and was 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. Lord Hoffman held that, “[o]n what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct.” Imposing liability in such circumstances, “offends common sense because it makes the doctor responsible for consequences which, though in general terms foreseeable, do not appear to have a sufficient causal connection with the subject matter of the duty” – i.e. that the damage in question was not within the relevant scope of duty.
The Court of Appeal in Manchester Building Society v Grant Thornton UK LLP [2019] EWCA Civ 40 considered the question of when SAAMCO applied to restrict the scope of duty at [54]:
“(1) It is first necessary to consider whether it is an “advice” case or an “information” case. This is a necessary first step because the scope of the duty, and therefore the measure of liability, is different in the two cases.
(2) It will be an “advice” case if it can be shown that it has been “left to the adviser to consider what matters should be taken into account in deciding whether to enter into the transaction”, that “his duty is to consider all relevant matters and not only specific matters in the decision” and that he is “responsible for guiding the whole decision making process”.
(3) If it is an “advice” case, then the negligent adviser will have assumed responsibility for the decision to enter the transaction and will be responsible for all the foreseeable financial consequences of entering into the transaction.
(4) If it is not an “advice” case, then it is an “information” case and responsibility will not have been assumed for the decision to enter the transaction.
(5) If it is an “information” case, the negligent adviser/ information provider will only be responsible for the foreseeable financial consequences of the advice and/or information being wrong.
(6) This involves a consideration of what losses would have been suffered if the advice and/or information had been correct. It is only losses which would not have been suffered in such circumstances that are recoverable.”
In reality, of course, the distinction between information and advice cases may be, in practice, difficult in cases about informed consent where, despite the weight post-Montgomery on the patient as decision maker, many patients if pushed on the question ‘what would you have done if given all the information required to make an informed choice?’ will in all honesty respond that they would have done what the doctor advised them to do. Does that make the doctor an adviser or an information giver?
In Khan v Meadows [2019] EWCA Civ 152, the Court of Appeal considered a case where the Claimant was given negligent advice about whether she was at risk of giving birth to a child with haemophilia. She subsequently gave birth to a child with that condition. The Defendant accepted that, but for the negligent advice, the Claimant would have chosen to terminate the pregnancy and the child would have been born. The child was subsequently diagnosed with autism and the issue was whether, in a wrongful birth claim, the Defendant was liable for the costs attributable to the upbringing of a child with both haemophilia and autism or whether Defendant was liable for the costs in relation to haemophilia alone.
In the High Court Mrs Justice Yip had held that
“those circumstances produce a much closer analogy to Chester v Afshar than to the mountaineer’s knee in SAAMCO…The focus of the defendant’s duty, or the purpose of the service to put it another way, was to provide the claimant with the necessary information so as to allow her to terminate any pregnancy afflicted by haemophilia, as this pregnancy was.”
However, in the Court of Appeal Davies LJ summarised the questions in light of SAAMCO as being:
“(i) What was the purpose of the procedure/information/advice which is alleged to have been negligent; (ii) What was the appropriate apportionment of risk taking account of the nature of the advice, procedure, information; (iii) What losses would in any event have occurred if the defendant’s advice/information was correct or the procedure had been performed?” Accordingly, “The SAAMCO test requires there to be an adequate link between the breach of duty and the particular type of loss claimed.”
The Court of Appeal held that
“The focus of the consultation, advice and appropriate testing was directed at the haemophilia issue and not the wider issue of whether, generally, the respondent should become pregnant. 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.”
Accordingly, it was not within the scope of duty to protect the Claimant from all the risks associated with becoming pregnant and continuing with the pregnancy. The court distinguished Chester by holding that the misfortune in Chester that befell the Claimant was the very misfortune that the doctor had a duty to warn against: “That was a fundamental difference with the facts of this case. The autism here was likewise a coincidental injury outside the scope of the defendant’s duty.”
It is difficult to see how the injury in Khan was any more coincidental to the breach than was the injury in Chester. However, this judgment was another illustration of how scope of duty arguments may be used to try to evade liability.
Another example is Kennedy v Frankel [2019] EWHC 106 (QB), in which a Claimant alleged that the Defendant had failed to advise her of the risk of impulse control disorder associated with dopamine agonist medication for Parkinson’s. The Claimant had gone on to develop psychosis. The Defendant at a very late stage sought to argue based on Khan that that the Claimant’s psychosis was a coincidental injury, falling outside the scope of the Defendant’s duty, since the duty to warn related to the risk of ICD alone and did not extend to a risk of psychosis, which was an extremely rare complication. The issue was deferred by Mrs Justice Yip to any subsequent quantum hearing.
In Pomphrey v Secretary of State for Health and another [2019] 4 WLUK 483; [2019] Med. L.R. 424 (see this previous article) Judge Cotter QC found that the scope of duty in question did not encompass avoiding a non-negligent risk of a dural tear that was inherent in the surgery in question, the risk of which was not affected by the breach of duty through the surgery being delayed. The judge found that the dural tear would have occurred even if there had been no delay as the surgical technique and anatomy would have been the same. Moreover, he held that
“… given the scope of the relevant duty which was breached in this case (to avoid unreasonable delay) I would have declined Mr Samuel’s invitation to follow the reasoning/approach in Crossman and would have found that establishing simple “but for” causation; based solely on the operation taking place on a different day (or Mr Samuel suggested even at a different time on the same day) would not have been sufficient, without more, for the Claimant to establish causation. Indeed, to do so would drive a coach and horses through well-established causation principles.”
By contrast, in Mills v Oxford [2019] EWHC 936 Karen Steyn QC heard a claim for lack of informed consent to neurosurgery which resulted in a stroke through failure to discuss alternatives. The Claimant argued that if he had opted for one of the alternatives, namely a microscopically-assisted resection procedure, whether on 4 December 2012 or another date, then provided the choice of technique made it more difficult to control the bleeding then he would have suffered the very injury that was the focus of the duty to warn and causation would be established. The Trust argued in reliance on Khan that the complication would be outside the scope of the duty to warn. The judge concluded that the Claimant would have chosen to have had microscopically-assisted resection if he had been given appropriate information about the alternatives. Such a technique would have significantly reduced the risk of the bleeding that led to his stroke, and that was the risk about which the Claimant should have been warned. Accordingly, this was a case where, according to the judge, “the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon’s duty to warn” citing Chester.
Conclusion
It is clear that arguments based on ‘scope of duty’ and on the judgments in SAAMCO and Khan are now commonplace, particularly in ‘information’ or ‘advice’ cases. What is critical for both claimants and defendants is to define exactly what is the alleged duty, its scope and crucially the relevant breach. Issues to consider will include what was the extent of any responsibility assumed by the defendant (see also Poole v GN [2019] UKSC); was the injury purely coincidental, and/or can it be linked physically to any injuries that could have been contemplated at the time of the negligence.
Andrew Kennedy appeared for the Defendant in Pomphrey. Robert Kellar QC appeared for the Appellant in Diamond. Philip Havers QC acted for the Respondent in Khan. They did not contribute to this article.
