The UK Supreme Court has issued two judgments on the scope of professional duties that will alter the way in which liability for negligence is analysed in common law countries. As well as the decision Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20, about which Darren Turnbull has written an article, the Court released the decision Khan v Meadows [2021] UKSC 21 in which it applied the new 6-step test to a medical negligence case. We review the judgment with focus on the steps and how the Court applied the 6-step test to the question of whether Dr Khan was liable for the birth of a haemophiliac, autistic child.

In Short

The “scope of duty” refers to the extent to which losses claimed can be said to fall within a defendant’s duty to protect a plaintiff. As the QC for Dr Khan put it in oral submissions, the scope of duty question is the step in a negligence analysis where the Court determines which party bore the risk of the claimed losses coming about.

Determining what the scope of a duty is requires (at least now in the UK) application of the following questions to the facts of each case:1

  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)

Legal Background

Darren Turnbull has set out a summary of the legal background in his article in this edition of the newsletter on Khan’s sister case, Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. That background applies equally to this article.

Factual Background

Ms Meadows wanted to know if she was carrying the gene for haemophilia. The tests performed by the medical centre she attended were not suitable to determine this question. Ms Meadows then consulted Dr Khan at the medical centre concerning her results, which were normal. Dr Khan failed to advise Ms Meadows the tests would not determine if she was carrying the gene and that she should get genetic tests to determine this. Dr Khan accepted that this omission was negligent.

Ms Meadows, wrongly believing that her future child would not be at risk of being a haemophiliac, decided to try and conceive a child, and she eventually fell pregnant. She carried to term and gave birth to a child who had both haemophilia and autism.

She sued Dr Khan for the costs of raising a child with these conditions. Ms Meadows’ claim was that, had she been properly advised that she carried the haemophilia gene, she would have tested the foetus for haemophilia, and she would have terminated the pregnancy, thereby not having a child at all, let alone one with haemophilia and autism.

Dr Khan admitted that she would be liable for the costs of raising a child with haemophilia but denied liability for the costs of raising a child with autism. The difference in quantum was significant as Ms Meadow’s child’s autism greatly increased the difficulty in treating his haemophilia and meant he would likely never be independent.

The parties agreed that it was reasonably foreseeable that Ms Meadows would give birth to a child with both haemophilia and autism. Dr Khan’s defence was that it was not within the scope of her duty to protect Ms Meadows against the possibility that she would have a child with autism. That was a risk that Ms Meadows took herself and for which she should bear responsibility.

High Court

The High Court decided that Dr Khan was liable for the costs Ms Meadows would incur associated with having a child with haemophilia and autism. The Court awarded Ms Meadow £9m.

Court of Appeal

The Court of Appeal overturned the High Court’s decision. It held that it was not within Dr Khan’s scope of duty to protect against Ms Meadows becoming pregnant at all, but rather against the risk of having a child with haemophilia. Any other pregnancy related risks, including that of a child with autism, were outside Dr Khan’s scope of duty. Ms Meadows took all other pregnancy related risks. It awarded Ms Meadows £1.4m in respect of the cost of raising a haemophiliac child.

Supreme Court

The Court set out the 6-step analysis above and proceeded to analyse the claim on that basis.

The Court considered the nature of the damages claimed and the purpose of the work Dr Khan completed. It held that Dr Khan bore the risk (it was within her scope of duty) that any future pregnancy would produce a child with haemophilia. That was the purpose for which Dr Khan was consulted. Ms Meadows took any other risk of defects with the child as they were matters about which Dr Khan did not know or advise Ms Meadows of.

The Court held that a “but for” approach to causation had to be tempered with the application of common sense. While Ms Meadows would not have had an autistic baby if she had terminated her pregnancy, the Court held that this conclusion did not answer the correct question. Dr Khan’s negligence had not caused the child to have autism. It was a risk about which Dr Khan had not been consulted.

In cases where a defendant (like Dr Khan) only provides a single input into a decision made by the plaintiff, and the decision is based on multiple inputs (like those relating to Ms Meadows’ pregnancy generally), even though it may be said the plaintiff would not have made the decision (to have the baby) but for the defendant’s negligent input, the defendant cannot be liable for all losses suffered as a result of the decision.

The Court proposed a useful counterfactual to assist in determining whether the losses alleged fall within the scope of duty:2

The question is not whether the claimant would have behaved differently if the advice provided by the defendant had been correct. Rather, the counterfactual assumes that the claimant would behave as he did in fact behave and asks, whether, if the advice had been correct, the claimant’s actions would have resulted in the same loss.

The Court held that if Dr Khan’s advice had not been negligent, then Ms Meadows still would have given birth to a baby with autism. Therefore, the additional costs associated with caring for an autistic child were not costs that Dr Khan had a duty to protect against. They fell outside the scope of the duty owed.

Our Comments

There are bound to be disagreements over the application of the UK Supreme Court’s 6-step test to determine the scope of duty. It is not a panacea for questions about this issue. But it is a more principled and easily applied test than that which previously existed. Following the 6-step process should lead to more certainty in both assessing claims and predicting what a Court will decide when faced with scope of duty questions.

  1. Khan v Meadows [2021] UKSC 21.
  2. 1 Khan at [53]

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.