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It takes two to SAAMCO – PART 2

21 June 2021

Vicki Swanton considers the recent Supreme Court decision in Khan v Meadows.

In previous articles, we have considered the law in relation to wrongful birth claims.

Whilst it has been a long time coming, on 18 June 2021 the Supreme Court handed down their judgment in Khan v Meadows [2021] UKSC 21 ('Khan')  which is a claim involving a mother's allegations of clinical negligence against a GP who failed to advise her that genetic tests were required to inform as to her carrier status for the genetic disease of haemophilia. She subsequently delivered a son who sadly suffered from both haemophilia and autism.

The subject of the appeal was whether or not the scope of duty owed by the GP extended beyond the duty to inform the mother as to her risk of passing on haemophilia (which was accepted and damages agreed) to include the risk of autism (for which there were and remain no genetic tests).

The appeal was one of two appeals heard by the same panel of seven justices examining the application of SAAMCO in different fields and was being handed down and should be read together with the Court’s judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20

The Legal Issues

The focus for the Supreme Court in Khan was whether clinical negligence cases should be dealt with in a similar way to professional negligence claims involving valuers and financial advisors. As the heading of this article refers, the leading case is known as SAAMCO (South Australia Asset Management Corpn. v York Montague Ltd (1997)). In the event the Supreme Court unanimously dismissed the patient's appeal ruling that there is no principled basis for excluding clinical negligence from the ambit of the scope of duty principle. 

Reasoning for the Judgment

The Supreme Court (Lord Hodge and Lord Sales) considered that a helpful model to analyse  the place for the scope of duty principle in negligence was to ask the following six questions;

1. Is the harm actionable in negligence?
2. What is the scope of the defendant's duty in terms of actionable risks of avoidable harm?
3. Was there a breach of that duty?
4. Are the losses claimed a consequence of that breach?
5. Is there sufficient nexus between the harm and the duty owed?
6. Is any element of the harm too remote/not causally related/not recoverable for any other reason?

To explain how this approach was applied in the context of Dr Khan's interaction with Mrs Meadows, the position adopted was as follows;

1. The claim was actionable as Mrs Meadows claim was for the bodily consequences of the pregnancy and the economic costs related to her caring for her disabled son.

2. To identify the scope of the duty owed there was a need to consider if the consequences can fairly be regarded as within the risk created by the negligence. In other words, the questions of duty, causation and remoteness run into one another. Applying the SAAMCO principle – a defendant is not liable in damages in respect of losses of a kind which fall outside the scope of his duty of care.

In Dr Khan's case the specific service she was providing was to advise whether Mrs Meadows could be a carrier of the haemophilia gene, not for any other complication that could arise were she to become pregnant. 

3. Dr Khan accepted that she breached her duty of care in relation to advising as to the risk of haemophilia. She was not in breach of any other duty- as her duty was limited to giving accurate information/advice on that issue alone.

4. The factual causes of the harm to Mrs Meadow's son were 2 fold, by losing the option to terminate she gave birth to a son with two disabilities, the first was haemophilia, the second was the autism. The 'but for' test was not the appropriate test to apply here or indeed in any case where there is more than one wrong doer or cause for harm.

5. Once the factual causes of the harm have been identified (in this case, losing the option to terminate resulting in the birth of Mrs Meadows' son) the duty nexus needs to be applied.  This is done by asking the question, what would the claimant's loss have been if the defendant's advice had been correct? Would the claimant's actions have resulted in the same loss? In this case yes – if Mrs Meadows had not been a carrier of haemophilia her son would still have been born with autism.

6. The risk, that Dr Khan's services were required to address, was the risk of haemophilia. As a result, the risk of a foreseeable but unrelated risk of pregnancy, namely autism, was not a risk she was required to address and was consequently outside of her scope of duty. The law did not impose on Dr Khan any duty related to unrelated risks that arise in pregnancy.

As a result, Dr Khan was only liable for the economic losses associated with caring for the consequences of Mrs Meadow's son's haemophilia.

What does this case mean for those involved in clinical negligence claims?

When applying this reasoning to other cases the most helpful approach is to consider the scope of duty question first ie. what was the nature of the service that the medical practitioner was seeking to provide?

The situations where this scope of duty question will ring-fence the losses that are payable following an event of clinical negligence will be limited, but this case provides the framework for doing so. An example where its application could limit the damages recoverable would be a diagnostic delay which, had it not occurred, would have also facilitated detection of another (unrelated) condition. In such a situation the scope of duty hurdle could limit the extent of recoverable losses for a claimant and is consequently a question that every clinical negligence practitioner needs to ask in every case within their portfolio.

For further information regarding this article please contact the author, Vicki Swanton.

Further Reading