Context
On the facts of this case Dr Khan had no such information. Her advice was sought on one issue only, whether MNX carried the haemophilia gene. Critically it was no part of that consultation, still less was any advice sought, that in the event that MNX did give birth, the child could suffer from autism.
The scope of Dr Khan’s duty was not to protect MNX from all the risks associated with becoming pregnant and continuing with her pregnancy. Dr Khan had no duty to prevent the birth of FGN. The risk of a child born with autism was not increased by Dr Khan’s advice.
In concluding that Dr Khan should be liable for a type of loss which did not fall within the scope of Dr Khan’s duty to protect MNX against, the judge at first instance failed to apply the correct test (that identified by Lord Hoffman in South Australian Asset Management Corporation v York Mantague Ltd (“SAAMCO”) and reverted to the “but for” causation test. The correct SAAMCO test requires there to be an adequate link between the breach of duty and the particular type of loss claimed. It is insufficient for the court to find that there is a link between the breach and the stage in the chain of causation (in this case the pregnancy itself) and thereafter to conclude that Dr Khan was liable for all the reasonably foreseeable consequences of that pregnancy.
In finding that MNX was deprived of the opportunity to terminate the pregnancy what the judge at first instance was in fact referring to was one of the links in the chain of causation, whereas in SAAMCO the link must be between the scope of the duty and the damage sustained.
The judge erred in suggesting that the circumstances of this case were closer to Chester v Afshar than SAAMCO.
In Chester the defendant, a neurosurgeon, advised the claimant to undergo a surgical procedure on the spine, which even if conducted without negligence, carried a small risk that the claimant would develop cauda equine syndrome, which is in fact what happened. Although the judge at first instance found that the surgeon was negligent in the advice he gave, the judge did not find that properly advised, the claimant would not have had the surgery. On appeal the Court of Appeal found that as the risk was liable to occur irrespective of the skill and care of the surgeon, the failure to warn neither affected the risk, nor was an effective cause of the claimant’s injury. Thus on a conventional test the claimant could not establish causation. However the court went on to find that the risk was within the scope of the duty the surgeon had to warn the claimant about. As he had not so warned her the injury was to be regarded as having been caused by the defendant’s breach of duty.
Central to the reasoning in Chester v Afshar was the fact that the very misfortune that befell the claimant was the very misfortune that the defendant had a duty to warn against. In this case the development of autism was a coincidental injury and not one within the scope of the duty that Dr Khan had.
Conclusion
This case is a good illustration of arguments being made which amount to what might be described as coincidental causation. “If you had properly advised me about this, then that would not have happened”. Malpractice claims are often made on the back of the “but for” causation test. Assuming that is all there is to establishing causation is wrong, as this case makes clear.