I have had the benefit of reading the joint judgment of Lord Hodge and Lord Sales. I agree with their decision to dismiss this appeal. But this case and the accompanying case of Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 have given this court a renewed opportunity to explain the operation of the principle laid down in South Australia Asset Management Corpn v York Montague Ltd (“SAAMCO”) [1997] AC 191 . This judgment therefore explains in my own words how I understand SAAMCO and, in particular, how it applies to the straightforward facts of this case. This judgment is intended to be consistent with, and should be read alongside, my fuller judgment in Manchester Building Society v Grant Thornton UK LLP .
I would stress the following five points from my judgment in Manchester Building Society v Grant Thornton UK LLP :
(i) In almost all past cases, applying SAAMCO , the context has involved a defendant providing professional services, through advice or information, to the claimant. It is unnecessary for the purposes of this case (and Manchester Building Society v Grant Thornton UK LLP ) to consider whether - and, if so, when and how - SAAMCO may apply outside that context. In the context with which we are dealing, one can say that the “ SAAMCO principle” (which can also be referred to as the “scope of duty principle”) is concerned to determine whether factually caused loss is within the scope of the professional’s duty of care to the claimant.
(ii) The SAAMCO principle is generally regarded as imposing a limit on the losses recoverable that is different from the restrictions of remoteness and legal causation (the latter can alternatively be labelled “intervening cause”) although whether that is so may depend on what one regards as determining remoteness and legal causation.
(iii) The scope of the professional’s duty of care is a question of law, with a particular emphasis on the purpose of the advice or information, that is underpinned by the policy of achieving a fair and reasonable allocation of the risk of the loss that has occurred as between the parties.
(iv) A counterfactual test can assist as a flexible cross-check in deciding on the scope of the duty of care. Applying the counterfactual test, one asks, would the claimant have suffered the same loss if the information/advice had been true? If the answer is “yes”, the scope of the duty does not extend to the recovery of that loss. If the answer is “no”, the scope of the duty does extend to the recovery of that loss.
(v) While Lord Hoffmann in SAAMCO confined the application of the counterfactual test to information, as opposed to advice, cases, it is now clear that that is not a rigid distinction. While it is not easy to think of suitable shorthand replacement terminology, what may be said is that the more limited the advice or information being provided - in the sense that the more the claimant has to decide on - the more appropriate the counterfactual test is likely to be.
There is no good reason why the SAAMCO principle should not apply to information or advice given by a doctor to her patient just as it applies to the advice or information given by other professionals. Indeed, Lord Hoffmann’s famous mountaineering hypothetical example given in SAAMCO involved a doctor giving negligent information to a patient. The submission by Philip Havers QC, counsel for the claimant and appellant, that the SAAMCO principle is simply inapplicable to a doctor’s negligence must therefore be rejected. The question we need to answer is how the SAAMCO principle applies to the facts of this case, not whether it applies at all.
Some uncontroversial aspects of the law applicable to the facts
I am grateful to Lord Hodge and Lord Sales for setting out the facts of this case, and the decisions below, at paras 3-20 of their judgment. There are a number of uncontroversial aspects of the law applicable to those facts which are not in dispute between the parties. These include the following:
(i) The defendant (Dr Hafshah Khan) owed the claimant (Omodele Meadows) a duty of care in the tort of negligence when advising her as to whether she was a carrier of haemophilia.
(ii) The defendant was in breach of her duty of care (ie she was negligent) when she led the claimant to believe that she was not a carrier of haemophilia. The claimant was correctly informed that the blood tests that she had undergone were normal. But that confirmed only that the claimant was not herself a haemophiliac. In order to determine if she was a carrier of haemophilia, which could be passed on to her children, she should have been referred to a haematologist for genetic testing. It was negligent of the defendant not to advise the claimant that she required referral for genetic testing and, therefore, to lead her to believe that the results of the blood tests showed that she was not a carrier of haemophilia.
(iii) Factual causation is satisfied. The defendant admits that “but for” her negligence A would not have been born because the claimant would have discovered during her pregnancy that he was afflicted by haemophilia and would, therefore, have undergone a termination of the pregnancy (see the judgment of Nicola Davies LJ in the Court of Appeal, [2019] EWCA Civ 152 ; [2019] 4 WLR 26 , para 2).
(iv) Applying the established case law on what have been termed “wrongful birth” cases and, in particular, Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 ; [2002] QB 266 , as confirmed in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 ; [2004] 1 AC 309 , a claimant is entitled to the extra costs of bringing up a child that are attributable to the child’s “disability”. This has been classified in McFarlane v Tayside Health Board [2000] 2 AC 59 as the recovery of pure economic loss but it is hard to see that anything significant turns on that classification (as opposed to treating the loss as economic loss consequent on “personal injury”) because there is no doubt that a duty of care is owed by a doctor to his or her patient in relation to that type of loss. In line with that case law, it was accepted in this case that the claimant could recover for the extra cost of bringing up A attributable to his haemophilia (the quantum of damages for these losses has been agreed at £1.4m).
It follows from these uncontroversial aspects of the law that the sole question at issue on this appeal is whether the claimant is entitled to recover the extra costs of bringing up A that are attributable to his having autism in addition to haemophilia. I shall refer to these, slightly inaccurately, as the “autism losses”. The quantum of these has been agreed at £7.6m (ie £9m for the extra costs of both the haemophilia and the autism minus £1.4m for the haemophilia-only extra costs).
It is important to add three points. First, the risk of the child having autism was not increased by the child having haemophilia. The risk of autism was in that sense a general risk of pregnancy. Secondly, applying a conventional approach to “remoteness”, focusing on the reasonable foreseeability at the time of breach of the type of loss as a slight possibility (see, for example, Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388 ; Hughes v Lord Advocate [1963] AC 837 ; Overseas Tankship (UK) Ltd v Miller Steamship Co Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 ) the birth of an autistic child was not too remote. This was because, as Nicola Davies LJ made clear at para 16 of her judgment, the appellant accepted that:
“it was reasonably foreseeable that as a consequence of [the defendant’s] breach of duty the [claimant] could give birth to a child where the pregnancy would otherwise have been terminated … [and] any such child could suffer from a condition such as autism.”
Thirdly, there was no suggestion by Simeon Maskrey QC, counsel for the defendant and respondent, that legal causation was not here satisfied ie it was not suggested that the chain of causation was here broken by an intervening event or action.
It follows from these uncontroversial aspects of the law, and from the additional three points in the last paragraph, that the question we need to address in this case is whether the autism losses are irrecoverable because of the application of the SAAMCO principle.
Application of the SAAMCO principle to the facts
In my view, in agreement with Lord Hodge and Lord Sales, the autism losses were outside the scope of the defendant’s duty of care and are therefore irrecoverable by reason of SAAMCO . I would express the reasons for this as follows:
(i) The purpose of the advice or information is of central importance. The claimant had approached the general practice surgery, as the defendant knew or ought to have known, for the specific purpose of ascertaining whether or not she was a carrier of haemophilia and hence what the impact of that would be if she were to become pregnant. The purpose of the advice or information was not to ascertain the general risks of pregnancy, including the risk of autism. As Nicola Davies LJ expressed it in her judgment at para 27(i):
“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.”
(ii) In the light of that purpose, 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, as Nicola Davies LJ expressed it at para 27(ii), the claimant was taking upon herself “the risks of all other [ie non-haemophiliac-related] potential difficulties of the pregnancy and birth both as to herself and to her child.”
(iii) Applying the SAAMCO counterfactual test as a cross-check, it supports a decision that the autism losses were outside the scope of the doctor’s duty of care. If we ask the question, would the claimant have suffered the same loss had the information/advice been true, the answer is “yes” as regards the autism losses (so that the scope of the duty of care does not extend to the recovery of the autism losses) but “no” as regards the haemophiliac losses (so that the scope of the duty of care does extend to the recovery of the haemophiliac losses). This is because 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. Applying the counterfactual test therefore supports the view that the autism losses were outside the scope of the doctor’s duty of care.
(iv) If one were to allow this appeal by deciding that the autism losses are recoverable, it is 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.
The conceptual structure of the tort of negligence
With great respect to Lord Hodge and Lord Sales, I do not consider it necessary or helpful in this case, or in the case of Manchester Building Society v Grant Thornton UK LLP , to advocate what appears to me to be, in some respects, a novel approach to the tort of negligence as formulated in the six questions that Lord Hodge and Lord Sales suggest should be asked. For example, their approach does not appear to start with establishing a duty of care, sees the SAAMCO principle as concerned with the “duty nexus” question, and treats contributory negligence alongside remoteness. As I have explained in para 73 above, there was no dispute in this case about a duty of care being owed, about there being a breach of that duty, and about factual causation. Nor, as I have mentioned in para 75, was there any issue about the loss being too remote, in the conventional Wagon Mound sense, or about legal causation. The central issue before us was about the SAAMCO principle as to the scope of the duty of care.
Scholars have long debated whether the conventional conceptual structure of the tort of negligence could be improved and, in particular, whether the duty of care is an unnecessary element: see, eg, Donal Nolan, “Deconstructing the Duty of Care” (2013) 129 LQR 559. But for the purposes of this judgment, I have had in mind, and would prefer to adhere to, a relatively conventional approach which sees the tort of negligence as involving seven main questions. They are as follows:
(1) Was there a duty of care owed by the defendant to the claimant? (the duty of care question)
(2) Was there a breach of the duty of care? (the breach, or standard of care, question)
(3) Was the damage or loss factually caused by the breach? (the factual causation question)
(4) Was the damage or loss too remote from the breach of duty? (the remoteness question)
(5) Was the damage or loss legally caused by the breach of duty? (the legal causation, or intervening cause, question)
(6) Was the damage or loss within the scope of the duty of care? (the scope of duty question)
(7) Are there any defences? (the defences question)
As this approach is relatively conventional, I do not think it is necessary to extend this judgment by explaining each of the seven questions. Suffice it to say that the duty of care concept controls the boundaries of the tort of negligence and problematic areas include pure economic loss, psychiatric illness and omissions; legal causation, as distinct from remoteness, is focusing on whether intervening acts of the claimant, or third parties, or natural events, break the chain of causation (so that the breach is no longer an effective cause); the SAAMCO principle as to whether the loss was within the scope of the duty of care falls to be considered as the sixth question; and defences include contributory negligence (which is a partial defence), voluntary acceptance of risk, illegality and limitation of actions. Questions (4)-(6) are closely related because they are all concerned with limitations on the recovery of factually caused loss: although generally regarded as different from each other, the same result may be reached by applying more than one of those three limitations (and, depending on the facts, the order in which one considers them may be largely a matter of convenience). I would add that what Lord Hodge and Lord Sales appear to treat as their first question - often labelled the question of “minimum actionable damage” (see Jane Stapleton, “The Gist of Negligence” (1988) 104 LQR 213) - can, in my view, be conveniently treated as a sub-issue under the duty of care enquiry (my first question).
In this case, and in Manchester Building Society v Grant Thornton UK LLP , we have been concerned with my sixth question as to whether factually caused loss was within the scope of the duty of care (although that case, unlike this one, also involved a concurrent claim for breach of a contractual duty of care where the same question arises).
Conclusion
For these reasons, which in their essentials (at para 77) align with the reasons given by Lord Hodge and Lord Sales (albeit not with all aspects of their conceptual analysis of the tort of negligence), I agree that this appeal should be dismissed.
LORD LEGGATT:
I agree with Lord Hodge and Lord Sales that this appeal should be dismissed, broadly for the reasons they give in addressing the facts of the case. But as their analysis of the scope of duty principle may differ at least superficially from mine, I will explain in my own words how I see its application.
Although the scope of duty principle is not always straightforward to apply, it is in this case. On the agreed facts, the only purpose for which the claimant, Ms Meadows, consulted the general practice of the defendant, Dr Khan, was to find out whether she was carrying a gene for haemophilia. That did not by itself limit the scope of the defendant’s duty, as a doctor’s duty will sometimes extend to addressing a matter on which the patient has not asked for advice but which the doctor recognises or ought to recognise poses a material risk to the patient. In this case, however, there is no finding that the defendant was or ought to have been aware of any fact which gave rise to a duty to advise the claimant about anything other than whether she was carrying a haemophilia gene. Accordingly, the duty owed by the defendant was limited to taking care to give the claimant accurate advice on that matter.
It is admitted that Dr Khan incorrectly and negligently advised Ms Meadows that she was not a carrier of a haemophilia gene, when in fact she was. As a result of this negligent advice, the claimant later conceived and gave birth to a son, A, who suffers from haemophilia. Had appropriate tests been arranged and the claimant been told, as she should have been, that she was carrying a haemophilia gene, she would have undergone foetal testing during her pregnancy and would have terminated her pregnancy when she found out that she would otherwise give birth to a child with haemophilia.
It is not in dispute that the expense of caring for a child born with a disorder (such as haemophilia), if it results from negligent advice, is a kind of expense for which damages can in principle be claimed: see Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 ; [2002] QB 266 ; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 ; [2004] 1 AC 309 . It is agreed that on this basis the defendant is liable to pay damages to the claimant to compensate her for the costs associated with her son’s haemophilia. The agreed amount of this compensation, if it stands alone, is £1.4m.
The dispute between the parties arises from the fact that, as well as being born with haemophilia, A was born with autism. The issue is whether the claimant is entitled to recover compensation for the costs associated with his autism. It is agreed that, if she is, the award of damages of £9m made by the trial judge, but set aside by the Court of Appeal, should be restored.
It is common ground that, as A would not have been born if the defendant had acted with due care, the costs of caring for an autistic child would not in that event have been incurred. It is also agreed that the possibility of giving birth to a child who suffers from a condition such as autism is a reasonably foreseeable risk of any pregnancy. It follows that the costs associated with that condition are a foreseeable consequence of the defendant’s negligent advice.
As established by the House of Lords in South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (“ SAAMCO ”), however, and reaffirmed on many occasions since - including by this court in Hughes-Holland v BPE Solicitors [2017] UKSC 21 ; [2018] AC 599 , a professional person whose duty is limited to advising on a particular subject matter relevant to a claimant’s decision-making is not responsible for all the foreseeable adverse consequences to the claimant of giving negligent and wrong advice, but only for such consequences as result from what made the advice wrong. This principle is generally expressed by saying that a professional adviser is only liable for losses which are “within the scope” of the adviser’s duty of care. In my judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 (“ MBS ”), I have considered this principle and its rationale at some length.
The scope of duty principle is just as applicable to a medical practitioner as to anyone else who gives professional advice. As outlined at paras 85-89 of my judgment in MBS , the rationale underpinning the requirement to show a causal connection between the subject matter of the defendant’s advice and the claimant’s loss is that it is 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 is to treat an adviser who is 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 has been given for treating doctors differently in that regard.
Applying the scope of duty principle to the facts of this case, whether or not she was carrying a haemophilia gene was plainly only one factor relevant to any choices made by the claimant 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. It follows that the defendant is not responsible for all the foreseeable adverse consequences of any decision made in reliance on her negligent advice, but only for those which result from the matter which the defendant negligently misrepresented and which made the advice wrong - that is, the fact that the claimant was carrying a gene for haemophilia.
It is not in dispute that there was a causal link between the fact that the claimant has a gene for haemophilia and the fact that her son was born with that disorder. The costs associated with his haemophilia are therefore within the scope of the defendant’s duty.
The appeal turns on whether or not there was also a causal connection between the fact that the claimant was carrying a gene for haemophilia and the autism from which A suffers. That question is answered conclusively by the parties’ agreement that the autism was not caused by his haemophilia nor made more likely by it. It follows that the costs associated with his autism are not within the scope of the defendant’s duty of care.
In my judgment in MBS at paras 105-106, I have addressed the circumstances in which it may be useful to apply the counterfactual test stated by Lord Hoffmann in SAAMCO of asking whether the loss would have occurred even if the information or advice given by the defendant had been correct. I have also emphasised (at paras 128-129 of that judgment) that when such a test is applied the relevant question is not - as has sometimes mistakenly been supposed - whether, if the advice given by the defendant had been correct advice to give, the claimant would have acted differently. The question is whether, if the advice had been correct in the sense that the facts had been as the defendant represented them to be, the action taken by the claimant as a result of the defendant’s negligent advice would have caused the same injury. Lord Hodge and Lord Sales make the same point at para 53 of their judgment in this case.
In order to conclude that the costs associated with A’s autism are causally unrelated to the subject matter of the defendant’s advice, there is no need to apply a counterfactual test; but equally there is no difficulty in doing so. It is plain that, even if the information that the claimant was not carrying a gene for haemophilia had been correct and all other circumstances remained the same, A would still have been born with autism. That is one way of explaining why it is not fair and reasonable to impose on the defendant liability for the costs associated with his autism.
Much of the judgment of Lord Hodge and Lord Sales is taken up with a discussion of the conceptual structure of the whole tort of negligence. This excursus touches on questions much debated by legal scholars which go far beyond the issues raised by this appeal and the appeal in MBS . Like Lord Burrows, I think it undesirable as well as unnecessary to engage in such an exercise. In particular, these appeals are concerned solely with the liability of professional persons for giving negligent advice. Ascertaining the scope of the defendant’s duty in such cases depends on identifying the matters relevant to a decision to be taken by the claimant which the defendant has undertaken responsibility for assessing and advising the claimant about. The extent of those matters may be defined by express agreement or, in the absence of such an agreement, is implied from the role of a doctor or other professional person as that role is conventionally understood (or in the case of an auditor prescribed by statute) and by the objective purpose of the advice (which, as discussed at para 160 of my judgment in MBS , is not necessarily coextensive with the purposes for which the claimant intends to rely on the advice). Whether or to what extent analogous considerations apply in other contexts, such as careless driving or the negligent performance of a surgical operation to take two examples mentioned in para 47 of the judgment of Lord Hodge and Lord Sales, is not a question which arises for decision or on which the court has heard any argument on these appeals.
Within the context of professional liability for negligent advice, it is not clear to me that there is any substantive difference between my explanation of the correct analytical approach and that of Lord Hodge and Lord Sales. It is common ground between us that it is always necessary to determine whether (or to what extent) the claimant’s “basic loss” is within the scope of the defendant’s duty of care. Lord Hodge and Lord Sales call this “the duty nexus question” which they formulate as whether there is a sufficient nexus between the loss and the subject matter of the defendant’s duty. I understand the word “nexus” to be another term for what I refer to, more prosaically, as a causal connection. I agree with Lord Hodge and Lord Sales that there can be circumstances in which it is obvious that loss incurred by the claimant is wholly outside the scope of the defendant’s duty. There can also be cases, inaptly referred to in SAAMCO as involving the giving of “advice” rather than “information”, where the defendant’s duty encompasses all losses which satisfy other requirements such as foreseeability. In cases of either of these types no further or finer analysis is needed of whether or to what extent the loss was caused by a matter within the defendant’s area of responsibility which the defendant negligently misstated or failed to report.
In the present case some analysis is needed but, as I said at the start of this judgment, it is straightforward. The subject matter of Dr Khan’s advice was limited to whether Ms Meadows was carrying a haemophilia gene and accordingly only losses causally connected (or, if the terminology is preferred, which have a sufficient nexus) to that subject matter are within the scope of the defendant’s duty. On the agreed facts, the losses caused by the fact that, as the defendant negligently failed to discover and report, the claimant was carrying a haemophilia gene are those associated with the haemophilia from which her child suffers and do not include costs associated only with his autism, which is causally unrelated. The appeal must therefore be dismissed.