UPDATE: Appeal preferred by the respondent against this decision before the UKSC has been unanimously dismissed.[Khan v. X, [2021] UKSC 21, decided on 18-06-2021]
Court of Appeal (Civil Division): The Division Bench of Lord Justice Hickinbottom and Lady Justice Nicola Davies DBE decided that the appellant doctor was not liable for the development of a “coincidental injury” in the newborn child, which was not within the scope of his duty to diagnose when the mother of the child consulted her before pregnancy.
Factual Matrix
The appellant was the mother of a child with haemophilia and autism. Before her pregnancy, she asked Dr Khan to establish whether she carried the haemophilia gene. Following blood tests, the mother was wrongly led to believe that any child she had would not have haemophilia. Had she known that she carried the haemophilia gene, she would have undergone foetal testing for haemophilia when she was pregnant. This would have revealed the foetus was affected. Appellant would then have chosen to terminate her pregnancy, and her child would not have been born.
Appellant sought damages from Dr Khan based on wrongful birth.
Further, she argued that Dr Khan was liable for all the consequences of the pregnancy. Dr Khan admitted liability for the consequences of the child’s haemophilia but denied liability in relation to the autism.
Issue for Consideration
If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?
Court’s Discussion
Bench stated that the scope of duty test identified by Lord Hoffman in South Australian Asset Management Corporation v. York Montague Ltd (“SAAMCO”) [1997] AC 191 is determinative of the issues which have to be addressed by a court.
Following were the questions:
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?
Court found that:
i) The purpose of the consultation was to put the respondent 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 enquiry of the respondent’s mother, it would be inappropriate and unnecessary for a doctor at such 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. In giving such information it would be incumbent on a doctor, consistent with her/his own professional obligations, to take account of a variety of factors which on the facts of this case the appellant was unaware of.
ii) As to the apportionment of risk, the doctor would be liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy. The mother would take the risks of all other potential difficulties of the pregnancy and birth both as to herself and to her child.
iii) loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism.
It was held that the appellant had no duty to prevent the birth of Adejuwon. The purpose and scope of the appellant’s duty were to advise and investigate in relation to haemophilia in order to provide the respondent with an opportunity to avoid the risk of a child being born with haemophilia.
Conclusion
Bench expressed that the development of autism was a coincidental injury and not one within the scope of the appellant’s duty.
In view of the above discussion, the appeal was allowed. [Dr Hafshah Khan v. X, [2019] EWCA Civ 152, Hearing date: 17 October 2018]
