Khan v Meadows (Rev1) [2021] UKSC 21 (18 June 2021)
Citation:Khan v Meadows (Rev1) [2021] UKSC 21 (18 June 2021).
Subjects invoked: 32. 'Medical negligence'.51. 'Professional negligence'.14. 'Duty of care'.
Rule of thumb:Are professionals liable for the indirect losses caused by their negligent advice? No, professionals are only liable for the losses directly caused by their neglgient advice, and no further than this, and even if their negligent advice has indirectly influenced another loss being suffered. There were different rationales offered for this by the Judges. Lord Leggatt based his decision upon the principle of ‘causal connection’ in delict/tort generally. Lord Hodge called this ‘the duty nexus connection’, although Lord Leggatt affirmed that in his view they were basically the same principle.
Background facts:
This case invoked the subjects of medical negligence & professional negligence, and the lexus principle.
The facts of this case were that Mrs Meadows was planning to have a baby. Meadows had some family history of haemophilia - a condition where people bleed extremely easily and they struggle massively to stop even the smallest of cuts from bleeding profusely. Meadows was concerned about this. Meadows went to Dr Khan for medical advice about this. Meadows asked Dr Khan for a test to discover if she had the gene for haemophilia. Dr Khan did a test to check for this and confirmed to Meadows that she did not have the gene for haemophilia.It later turned out that it was not the right test that Dr Khan performed and Dr Khan wrongly advised Meadows that she did not have the gene for haemophilia. It turned out that Mrs Meadows did indeed have the gene for haemophilia, even although she did not have the condition herself. Meadows got pregnant and because she thought that she did not have the gene she did not get a test early on the pregnancy to check if her baby/foetus had haemophilia. The baby was born with haemophilia. Mrs Meadows sued Dr Khan for negligence in wrongly performing the gene test - she stated that but for this mistake she would have checked the baby/foetus for haemophilia and terminated the pregnancy.
Dr Khan admitted that this was negligent and agreed to pay Meadows 1.6 million in damages – this 1.6 million was needed to pay for all the support people with haemophilia need. However, this was not the crux of the case. The debate between the parties came because the baby was also born with autism. Meadows argued that if she had been correctly advised about the haemophilia then she would have got a check for this, and this check would have discovered that the child had autism, and then she would have terminated the pregnancy. The damages incurred by Mrs Meadows to raise the child with autism were around 9 million pounds in damages. Meadows wanted £10.6 million in damages to include damages for the autism as well, but Khan/the NHS was maintaining that they were not liable for this and were only willing to pay £1.6m.
Meadows argued that he 'but for' principle applied in this case. Meadows argued that if Dr Khan had done his job properly, she would have undergone more tests which would have shown that there were difficulties in the pregnancy and she would have terminated it. Meadows argued that this meant Dr Khan’s actions caused the autism to go undetected and that Dr Khan was liable for all the damages associated with her having the baby.
Dr Khan argued that although he had impacted the failure to diagnose the autism, he had not caused it legally. Dr Khan argued the principle of causal connection and nexus connection applied – this means that there must be a clear link between someone’s actions in order for them to be liable, and not just a tentative link. What is a tentative link and what is not divides opinion. Dr Khan argued that this principle ensured that he was only liable for the damage associated directly from his mistake and no further. Dr Khan argued that although he indirectly affected this there was not a strong enough link for him to have said to have caused this legally.
Judgment:
The Court of Appeal upheld the arguments of Mrs Meadows but the Supreme Court accepted the arguments of Dr Khan. In short, it is a matter that divided opinion as to whether the ‘but for’ or ‘causal/nexus connection’ principle applied in this matter – what is a ‘clear link’ between the negligence and the damages and what is a tentative link is one which divides opinion. The Judgment is not greatly satisfying and it was a close, 50/50 case. The Court affirmed that the principle of ‘causal connection’ applied. It was affirmed that ‘causal connection’ and ‘nexus connection’ mean the same thing. The application of this principle ensured that Dr Khan was only liable for the losses directly caused by his mistake about the haemophilia, and not any indirect consequences arising after his mistake. If Dr Khan had also advised, ‘since there is no haemophilia there is no point going for any check-ups on the baby’s general health’, then he would have been directly liable, but he did not say this. Dr Khan only had to pay the 1.6 million in damages for the haemophilia damages and not the £10.6 million pounds in damages to include damages for the autism as well. In short, Dr Khan won this case and Mrs Meadows lost.
Ratio-decidendi:
Lord Leggatt at 97-98 ‘97. 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. 98. 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’.
‘… “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... Dr Khan’s advice was limited to whether Ms Meadows was carrying a haemophilia gene… autism is causally unrelated’, Lord Leggatt
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.