A professional adviser is only liable for losses which are within the scope of his duty of care
July 30, 2021
Khan v Meadows
 UKSC 21
Supreme Court of the United Kingdom
Lord Reed, President; Lord Hodge, Deputy President; Lady Black, Lord Kitchin, Lord Sales, Lord Leggatt, Lord Burrows, SCJJ
June 18, 2021
Reported by Faith Wanjiku
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Tort Law – negligence – clinical negligence – scope of duty of a medical practitioner -advice by a medical practitioner – where a mother was not given advice by a medical practitioner of the risk of a child being born with more than one disability with one falling outside the subject matter- whether the fact that a child was born with a disability that was not sought advice for could fall under the scope of duty of medical practitioner – whether a mother could sue a doctor for the costs associated with all of a child’s disabilities, or only for the costs associated with the disability the doctor was consulted on if a child born with more than one disability would not have been born but for the doctor’s failure to advise of the risk of their being born with one of those disabilities.
Tort law-negligence-clinical negligence-awards in medical negligence-where a mother was not given advice by a medical practitioner of the risk of a child being born with more than one disability with one falling outside the subject matter - whether a medical practitioner could be held liable for failing to give advice on an unrelated subject matter from the one advice was sought for.
In 2006, the appellant, (Ms Meadows), consulted her GP practice to establish whether she was a carrier of the haemophilia gene. Following blood tests, she was negligently led to believe by the respondent, (Dr Khan), that she was not a carrier. In fact, the tests only confirmed that she did not herself have haemophilia. In 2010, the appellant became pregnant with her (son), Adejuwon. Shortly after his birth, the appellant’s son was diagnosed as having haemophilia. Subsequent genetic testing confirmed the appellant was a carrier of the gene. Had the appellant known that she was a carrier, she would have undergone foetal testing for haemophilia when she was pregnant. That would have revealed the foetus was affected. The appellant would then have chosen to terminate her pregnancy, and her son would not have been born.
It was not in dispute that the respondent was liable in negligence for the costs of bringing up the appellant’s son attributable to his haemophilia. The dispute between the parties arose from the fact that the appellant’s son was also born and subsequently diagnosed with autism, a condition which was unrelated to his haemophilia. The question was whether the respondent was liable for all costs related to the appellant’s son’s disabilities arising from the pregnancy or only those associated with his haemophilia. The High Court held that the respondent was liable for costs associated with both the appellant’s son’s haemophilia and autism. The Court of Appeal allowed the respondent’s appeal, finding her liable for costs associated with the appellant’s son’s haemophilia only.
The appellant approached the Supreme Court and contended that she was entitled to damages for the continuation of the pregnancy and its consequences, including all the costs related to her son’s disabilities arising out of the pregnancy. The respondent contended that her liability ought to be limited to the costs associated with appellant’s son’s haemophilia and that the costs associated with his autism fell outside the scope of the duty she owed to the appellant. Issues
i Whether a mother could sue a doctor for the costs associated with all of a child’s disabilities, or only for the costs associated with the disability the doctor was consulted onif a child born with more than one disability would not have been born but for the doctor’s failure to advise of the risk of their being born with one of those disabilities.
ii Whether a medical practitioner could be held liable for failing to give advice on an unrelated subject matter from the one advice was sought for.
- Where a surgeon negligently performed an operation and caused both physical injury and consequent economic loss to the patient, both types of loss would normally be within the scope of the defendant’s duty of care. By undertaking the operation on the patient the surgeon took responsibility for physical harm caused by any lack of skill and care in performing the operation and for consequential economic loss. Similarly, when a general medical practitioner negligently prescribed unsuitable medication, thereby causing injury or failing to prevent the development of an otherwise preventable medical condition, both the injury or condition and the consequential economic loss would generally be within the scope of the defendant’s duty. The negligent care of a mother in the final stages of pregnancy could sadly have had the result of the birth of a baby with brain damage and the defendant was normally liable to pay compensation for both the injury and the consequential additional cost of caring for the disabled child.
- The foreseeability of the possibility of a boy being born with both haemophilia and an unrelated disability, such as autism, which was a risk in any pregnancy, was a relevant consideration when addressing the scope of the duty of care undertaken by a defendant. That was because the absence of foreseeability would militate against there being a duty of care in relation to such a risk. But the foreseeability of such unrelated disability was in no sense determinative of the question of the scope of the duty of care. That was because the scope of duty question depended principally upon the nature of the service which the defendant had undertaken to provide to the claimant. Where a medical practitioner had not undertaken responsibility for the progression of the pregnancy and had undertaken only to provide information or advice in relation to a particular risk in a pregnancy, the risk of a foreseeable unrelated disability, which could occur in any pregnancy, would not as a general rule be within the scope of the clinician’s duty of care. Foreseeability was, of course, also relevant to the legal filters such as remoteness of damage, which arose once it had been established that the defendant’s duty of care extended beyond particular risks in the pregnancy.
- The economic costs of caring for a disabled child were of a nature that was clearly actionable. The scope of duty question was answered by addressing the purpose for which the appellant obtained the service of the general medical practitioners. She approached the general practice surgery for a specific purpose. She wished to know if she was a carrier of the haemophilia gene. The purpose of the consultation was to put the appellant in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. The respondent owed her a duty to take reasonable care to give accurate information or advice when advising her whether or not she was a carrier of that gene. In that context it mattered not whether one described her task as the provision of information or of advice. The important point was that the service was concerned with a specific risk that was the risk of giving birth to a child with haemophilia.
- The respondent was in breach of her duty of reasonable care, as she readily admitted. As a matter of factual causation, the appellant lost the opportunity to terminate the pregnancy in which the child had both haemophilia and autism. There was thus a causal link between the respondent’s mistake and the birth of the appellant’s son. But that was not relevant to the scope of the respondent’s duty. In the instant case, the answer to the scope of duty question pointed to a straightforward answer to the duty nexus question: the law did not impose on the respondent any duty in relation to unrelated risks which might arise in any pregnancy. It followed that the respondent was liable only for the costs associated with the care of the appellant’s son insofar as they were caused by his haemophilia. Had the respondent’s advice had been correct and the appellant had not been a carrier of the haemophilia gene, the undisputed answer was that the appellant’s son would have been born with autism.
- Given the purpose for which the service was undertaken by the respondent, and there being no questions of remoteness of loss, other effective cause or mitigation of loss, the law imposed upon her responsibility for the foreseeable consequences of the birth of a boy with haemophilia, and in particular the increased cost of caring for a child with haemophilia.
Lord Burrows concurring
- The purpose of the consultation was to put the claimant in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. Given the specific inquiry of the mother, namely, would any future child of hers carry the haemophilia gene, it would be inappropriate and unnecessary for a doctor at such a consultation to volunteer to the person seeking specific information any information about other risks of pregnancy including the risk that the child might suffer from autism.
- It was fair and reasonable that the risk of the child being born with haemophilia should be allocated to the doctor; but that the risk of the child being born with autism should be allocated to the mother. In common with any mother considering pregnancy, the claimant was taking upon herself the risks of all other non-haemophiliac-related potential difficulties of the pregnancy and birth both as to herself and to her child.
- The autism losses were outside the scope of the doctor’s duty of care. Had the information/advice that the claimant was not a carrier of haemophilia been correct, the claimant would still have given birth to an autistic child but would not have given birth to a child with haemophilia.
- If one were to allow the appeal by deciding that the autism losses were recoverable, it was hard to see how one could deny that there would also be recovery of those losses even if the child had been born with autism but not with haemophilia. That would seem an even more startling result because the very risk that the mother was concerned about would not have eventuated at all.
Lord Leggatt concurring
- A professional person whose duty was limited to advising on a particular subject matter relevant to a claimant’s decision-making was not responsible for all the foreseeable adverse consequences to the claimant of giving negligent and wrong advice, but only for such consequences as resulted from what made the advice wrong. That principle was generally expressed by saying that a professional adviser was only liable for losses which were within the scope of the adviser’s duty of care.
- The scope of duty principle was just as applicable to a medical practitioner as to anyone else who gave professional advice. The rationale underpinning the requirement to show a causal connection between the subject matter of the defendant’s advice and the claimant’s loss was that it was 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 was to treat an adviser who was negligent in relation to a particular matter as if the adviser had a responsibility to protect the claimant against risks unrelated to that matter. No good reason had been given for treating doctors differently in that regard.
- Whether or not she was carrying a haemophilia gene was plainly only one factor relevant to any choices made by the appellant about whether she wished to become pregnant and, if she did (by desire or not), whether to terminate the pregnancy. As with any decision whether to have a child, there were many other factors (personal, social, economic and medical) relevant or potentially relevant to those choices. The defendant had no duty to assess or advise the claimant about such other factors. The respondent was not responsible for all the foreseeable adverse consequences of any decision made in reliance on her negligent advice, but only for those which resulted from the matter which the respondent negligently misrepresented and which made the advice wrong that was, the fact that the claimant was carrying a gene for haemophilia.
- The subject matter of the respondent’s advice was limited to whether the appellant was carrying a haemophilia gene and accordingly only losses causally connected or, if the terminology was preferred, which had a sufficient nexus to that subject matter were within the scope of the defendant’s duty. On the agreed facts, the losses caused by the fact that, as the respondent negligently failed to discover and report, the claimant was carrying a haemophilia gene were those associated with the haemophilia from which her child suffered and did not include costs associated only with his autism, which was causally unrelated.
Relevance to Kenya’s legal system
The Constitution of Kenya, 2010 provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.
Section 8 (1) of the Health Act, No. 21 of 2017 provides that every health care provider shall inform a user or, where the user of the information is a minor or incapacitated, inform the guardian of the range of promoter, preventive and diagnostic procedures and treatment options generally available to the user and the benefits, risks, costs and consequences generally associated with each option.
In LWW (Suing as the Administrator of the estate of BMN) deceased v Charles Githinji  eKLR, the court held that the defendant was a pharmacist and not a medical doctor. He depended on information/diagnosis of another medical doctor to be able to guide him on what medicine he should dispense. In the event he took it upon himself to conduct a diagnosis and dispense medicine, then he would be taking a very serious risk which might point to negligence on his side. The death of a patient did not generally imply negligence on the part of the doctor. That was because it was expected that anyone who possessed the required qualifications used the same to the best of his or her knowledge for the benefit of those who consulted them.
In John Gachanja Mundia v Francis Muriira & Another  eKLR, the court held that a case of medical negligence was not an ordinary case of negligence. The test to be applied was not that of an ordinary reasonable man known in law but that of an ordinary skilled doctor or consultant in that field. A patient who approached a doctor expected medical treatment with all the knowledge and skill that the doctor possessed to bring relief or solve the medical problem. A doctor therefore owed certain duties of care whose breach gave rise to tortious liability. If a professional man professed an art, he had to reasonably be skilled in it. He had to be careful but the standard of care, which the law required was not insurance against accidental slips. The professional had to bring to his task a reasonable degree of skill and knowledge and had to exercise a reasonable degree of care.
In AAA v Registered Trustees – (Aga Khan University Hospital, Nairobi)  eKLR, the plaintiff filed a claim founded on medical negligence that resulted to unwanted pregnancy and subsequent delivery of the unplanned child yet she was on contraception on the advice of the defendant. The High Court held that courts had gradually moved away from public policy approach and began awarding compensation for the cost of bringing up an unexpected child up to the age of majority. Since the avoidance of a further pregnancy and birth was the object of the sterilization operation undergone by the plaintiff, the compensatable loss suffered by the plaintiff as a result of the negligence in performing that operation extended to any reasonably foreseeable financial loss directly caused by her pregnancy.
The court also held that there was no rule of public policy which prevented the plaintiff from recovering in full the financial damage sustained by her as a result of the negligent failure of the defendant’s medical staff to perform the sterilization operation properly, regardless of whether the child was healthy or abnormal. The plaintiff ought to be entitled to damages for loss of future earnings, maintenance of the child up to the age of majority, and future loss of amenity and pain and suffering, including the extra care that the child would require.
The above case was appealed at the Court of Appeal in A K H S t/a A K U H v A A A  eKLR, the Court of Appeal reversed the award of Kshs. 4,300,000/= that the plaintiff had been awarded at the High Court and held that a tort recovery could not be had for damages which were speculative. Allowing a court to award child-rearing costs would be to invite unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on siblings as well as the parents, and the emotional as well as the pecuniary costs of raising an unplanned and, perhaps, unwanted child in varying family environments.
It further held that it was impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents. Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. Whether those costs were outweighed by the emotional benefits which would be conferred by that child could not be calculated. The child could turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child could grow up to be President, or to be an infamous criminal. In short, it was impossible to tell, at an early stage in the child’s life, whether its parents had sustained a net loss or net gain.
The above Kenyan cases may not be on the same facts as the Supreme Court of UK one but they both show negligence of medical practitioners and the liability it results into. The UK case therefore goes further to show the scope of duty of a medical practitioner while giving advice to a person on a certain subject matter sought for vis-à-vis the unrelated issues that may arise.