Scope of Duty, Counterfactual Analysis and Birth Defects
The Challenging Case of Khan v Meadows
The tort of negligence has evolved into a sophisticated and calibrated framework. Even then, aspects of this elaborate structure are constantly being tweaked and, sometimes, challenged. Most recently, in the UKSC decision of Khan v Meadows, the spotlight is thrown on scope of duty analysis against the challenging backdrop of medical negligence and unwanted birth defects. The judgment of the majority suggests there is more that needs to be considered at the stage of damages, and that the sequential framework of negligence may benefit from some rearrangement.
Close to a century after the landmark decision of Donoghue v Stevenson,1(1932) AC 562. the tort of negligence continues to evolve as modifications and refinements are made to its legal framework. Of late, scope of duty analysis has come to the fore.
Very recently, in Khan v Meadows2(2021) UKSC 21; (2021) All ER (D) 44. and the associated decision of Manchester Building Society v Grant Thornton,3(2021) UKSC 20. The Manchester Building Society case involves a very different scenario of the liability of an accounting firm for advising its client that ‘hedge accounting’ was an appropriate model for the building society to adopt. As the factual dynamics of the two cases are radically different and involve different tensions and considerations, it is best to examine Khan on its own. Whilst Khan is a difficult case in terms of the correct outcome, it is quite clear in the Manchester Building Society case that the damage being claimed was within the defendant’s scope of duty. the UK Supreme Court (the SC) had the opportunity to provide clarification on the scope of duty as well as on the overall negligence framework. This article focuses on Khan v Meadows. Khan, a case on medical negligence resulting in the birth of a child with disabilities, is difficult for a few reasons.
First, it is difficult to discern, intuitively, the desired outcome and the appropriate reasoning which supports, or drives, that outcome. Second, the UK judgment gives important, and in parts controversial, insights into scope of duty analysis, including the SAAMCO counterfactual. Third, the majority of the UKSC proposed a novel six-step negligent framework. As a cautionary note, the Khan case is extremely challenging to analyse and distill.
The claimant, Ms Meadows, aware that a relative had given birth to a baby with haemophilia (a blood disease), was concerned that a similar fate might befall her. She consulted a doctor in a general practice with a view to ascertaining whether she was a carrier of the hereditary disease. The doctor arranged for a blood test. (Such a test is inadequate as it only ascertains if the patient suffers from haemophilia; it does not assess if she is a carrier.) Subsequently, she saw Dr Khan, another doctor in the same practice, to obtain and discuss the results of the blood test. Dr Khan said her results were normal.
Ms Meadows thus believed that any baby she gave birth to would not have haemophilia. A year later, she became pregnant and, in due course, gave birth to a baby who suffered from severe haemophilia and, also, autism. It was accepted that had the doctors referred her to genetic testing, she would have discovered that she was a carrier of haemophilia and that subsequently, upon learning that she was pregnant, she would have done foetal testing, which would have detected the condition in her unborn child, and she would have terminated the pregnancy.4If there was doubt over the outcome as regards one or more of these hypothetical actions, then the issue of loss of chance arises. On this controversial topic, although the current judicial thinking is that, for a loss of chance claim to succeed, the enquiry at each stage must satisfy the threshold of balance of probabilities, the writers prefer the view that a substantial chance should be required instead. Further, the assessment of the appropriate quantum of damages should be arrived at by taking a cumulative summation of the chances along the ‘hypothetical virtuous chain’. See J Liang & KY Low, Recognizing Lost Chances in Tort Law (2014) SJLS 98-122 and KY Low and A Lim, Standard of Care and Indeterminacy in Medical Negligence, Law Gazette, Oct 2019.
Ms Meadows made a claim for the costs of a child having to manage haemophilia and autism, amounting to £9m, rather than the cost of raising a child having to manage haempohilia alone, which involved a much lower sum of £1.4m.
Decisions and Reasoning
At the Court of first instance, Justice Yip awarded the mother her full claim of £9m. The learned judge reasoned that:5(2017) EWHC 2990 (QB); (2018) 4 WLR 8 at paras (62), (63) and (68).
- it was the defendant’s duty and the plaintiff’s purpose to allow the plaintiff to terminate any pregnancy afflicted by haemophilia;
- the defendant had assumed a responsibility which, if properly fulfilled, would have avoided the birth of the child since, but for the doctor’s negligence, the child would not have been born;
- it was fair, just and reasonable to allow the claim; and
- the outcome was in accord with the principle of distributive justice.
In so doing, she followed the approach of the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust6(2001) EWCA Civ 530; (2002) QB 266. and Groom v Selby,7(2001) EWCA Civ 1522; (2002) Lloyd’s Rep Med 1. cases on unwanted birth.
Court of Appeal
On appeal, the Court of Appeal (CA), comprising Ryder, Hickinbottom and Nicola Davies LJJ, reduced the award to damages of £1.4m for the following reasons:8(2019) EWCA Civ 152; (2019) 4 WLR 26.
- the costs associated with autism were outside Dr Khan’s scope of duty, as autism was not within the scope of risks which Dr Khan had undertaken to protect Ms Meadows against;
- whilst the doctor was liable for the risk of the mother giving birth to a child with haemophilia, the mother takes the risks of all other potential difficulties of pregnancy and birth; and
- the application of the SAAMCO counterfactual supported the outcome.
The Supreme Court, in an expanded panel of seven judges, comprising Lord Reed, Lord Hodge, Lady Black, Lord Kitchin, Lord Sales, Lord Legatt and Lord Burrows JJSC, upheld the CA’s decision. The basic reason, as given by Lords Hodge and Sales in the leading judgment,9Which was agreed to by Lord Reed, Lady Black and Lord Kitchin. was that the autism management costs were outside the scope of duty of the doctor. Lord Burrows and Lord Leggatt each gave a separate judgment.
The Hodge-Sales Sequential Framework for Negligence
In the course of the judgment, the majority proposed10At (28). the following model of six sequential questions to assist in the analysis of negligence liability:
- Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question);
- What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question);
- Did the defendant breach his or her duty by his act or omission? (the breach question);
- Is the loss for which the claimant seeks damages the consequence of the defendant’s act of omission? (the factual causation question);
- Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question); and
- Is a particular element of harm for which the claimant seeks damages irrecoverable because it is too remote, there is a different effective cause, or the claimant has mitigated his or her loss or failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).
The learned judges made two comments on this framework. First, it is possible to deviate from the above sequence and consider the six questions in a different order.11At (29). The lordships, however, observed12At (38). that it is often helpful to ask the scope of duty question before addressing questions of breach and of causation.
Second, it is possible to address more than one question at the same time;13At (29). indeed, the learned judges proceeded,14At (48) – (52). to consider the scope of duty question alongside the “duty nexus” question, pointing out that answers to the questions of factual causation and foreseeability “cannot circumvent the questions which must be asked in relation to the scope of the defendant’s duty”.15At (30).
The Scope of Duty
In considering this second question, Lords Hodge and Sales noted how the idea of scope of duty had been gaining importance in cases involving pure economic loss for negligent misstatements as well as cases involving psychiatric harm.
It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of duty by reference to the kind of damage from which A must take care to save B harmless.
and of Lord Roskill:
… it is necessary first to determine for what purposes and in what circumstances the information in question is to be given.
The Duty Nexus Question
Q5 in the Hodge-Sales framework is the central focus of the analysis. According to their Lordships, the court must ascertain if there is a “sufficient nexus” between the defendant’s “scope of duty” of care and the “particular element of harm” for which the claimant seeks damages.
To illustrate, if the scope of duty of Dr Khan is haemophilia avoidance, the question is whether there is a sufficient connection between the scope of duty and the two types of harm (haemophilia and autism) being claimed?
Elaborating on the duty nexus question, the SC explained that scope of duty analysis was necessary to decide if the defendant should be held responsible for the loss being claimed:18At (49).
… the court needs to identify the extent of the loss which fell within the defendant’s responsibility and to exclude such loss as fell outside the scope of the defendant’s duty.
Lord Burrows was more emphatic in his judgment:19At (77).
The purpose of the advice or information is of central importance… The purpose of the advice or information was not to ascertain the general risks of pregnancy, including the risk of autism. (emphasis added)
Further, as is implicit from the majority judgment20At (30), where it was pointed out that answers to the questions of causation and foreseeability ‘cannot circumvent questions relating to scope of duty. and expressly stated by Lord Burrows, the scope of duty principle is:21At (71), referencing his judgment in Manchester Building Society v Grant Thornton (2021) UKSC 20.
… generally regarded as imposing a limit on the losses recoverable that is different from the restrictions of remoteness and causation. (emphasis added)
The above statement is most instructive. It indicates that in deciding the defendant’s liability for a type/item of loss, the court must consider, in addition to causation and remoteness, if there is a sufficient nexus between the scope of the duty and the loss which is claimed.
According to their lordships, the “mechanism” by which this requisite nexus is found is by applying the SAAMCO counterfactul. As Lords Hodge and Sales explained:22At (53).
The question is not whether the claimant would have behaved differently if the advice provided had been correct. Rather, the counterfactual assumes that the claimant would behave as he did in fact behave and asks whether, if the advice had been correct, the claimant’s actions would have resulted in the same loss.
Lord Burrows gave a similar explanation:23At (71).
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 duty does not extend to the recovery of that loss. If the answer is ‘no’, the scope of duty does extend to the recovery of that loss.
As regards the usefulness of the SAAMCO counterfactual, Lords Hodge and Sales remarked that in some circumstances, such as in a valuer’s negligence, it is appropriate to use the counterfactual to test if there is a nexus while in other circumstances, the counterfactual may “contribute nothing”.24At (53). In similar vein, Lord Burrows thought the test “can assist as a flexible cross-check”.25At (71). Thus, it is unclear how one discerns if a particular situation is one where the application of counterfactual is or is not appropriate. Nonetheless, Lords Hodge and Sales were of the view that the SAAMCO counterfactual is a “robust way”26At (54). of applying the scope of duty principle.
Application of Law to the Facts at Hand
The Court then addressed Ms Meadow’s counsel’s submission that the scope of duty principle as applied in SAAMCO should not apply in cases of medical negligence. The Court disagreed, and for the following reasons.
First, there was no reason to exclude medical negligence from the ambit of the scope of duty principle; indeed, Lord Sumption in Hughes-Holland had stated that the scope of duty principle was a general principle of the law of damages.27At (62).
Next, the Court drew an important distinction between the unwanted birth scenario and the case at hand:28At (63).
In the Parkinson and Groom cases the object of the service undertaken was to prevent the birth of any child as in each case the mother did not want to have any more children … . In both cases the added economic costs of caring for a disabled child, whatever his or her ability, were within the scope of the defendant’s liability because of the nature of the service which the defendant had undertaken.
Third, the SC accepted that the child would not have been born but for the doctor’s mistake since the trial judge had found that had Ms Meadows been correctly advised, she would have done foetal testing and would have terminated the pregnancy upon discovering the presence of haemophilia in the foetus. However, as explained in the leading judgment:29At (64).
But that conclusion as to factual causation does not provide any answer to the question as to the scope of duty.
Further, regarding foreseeability, the Court remarked that while the foreseeability of an unrelated disability is a relevant consideration when addressing the question of scope of the duty, it is “in no sense” determinative of the question. Rather, the scope of duty depends “principally” on the nature of the service undertaken by the doctor. Hence: 30At (65).
Where a medical practitioner has not undertaken responsibility for the progression of the pregnancy and has undertaken only to provide information or advice in relation to a particular risk in a pregnancy, the risk of a foreseeable unrelated disability, which could occur in any pregnancy, will not as a general rule be within the scope of the clinician’s duty of care.
Finally, the SC left aside the question of whether it is fair, just and reasonable to impose liability since no novel issue was involved.
Thus, for all the above reasons, the plaintiff was only entitled to claim the costs of a normal child managing haemophilia.
Comments on Reasoning in Khan
Importance of Scope of Duty
The Khan decision highlights the need to look more closely at the scope of the duty of care before addressing the breach question. As pointed out by Lords Hodge and Sales:31At (38).
… it is often helpful to ask the scope of duty question before turning to questions of breach of duty and causation.
The financial investment scenario provides a neat illustration of this point. When a client approaches a bank to assist in investments, there is a choice of three types of account – execution-only, advisory and discretionary.
In the first, the bank’s officer (a broker or remisier) simply carries out the client’s order to buy or sell. In the second, the officer gives advice, and the client makes the final decision. In the third, the client leaves a sum of money with the officer, and the latter exercises his own discretion to decide how to invest.
Obviously, in order to assess if there is breach, the preceding question is the scope of duty. As Menon CJ remarked in Tan Woo Thian v PWC Advisory Services:32(2021) SGCA 20 at (19). The learned judge also used the term at para (18) of his judgment.
Beyond the existence of such a duty of care, the precise content of such a duty may also be usefully considered at such at point.
Scope of duty, together with standard of care, constitute the second element of “content” of duty in the negligence framework. After establishing duty, it is needful and logical to consider content of duty. The majority judgment of the SC in Khan supports this important sequential step.
The New Q5 Stage
The “duty nexus” phase as discussed by Lords Hodge and Sales raises perplexing questions and they include:
– What exactly is the duty nexus question? Is it just a repetition of the scope of duty question? Does not conventional remoteness requirement of foreseeable type of loss suffice?
– What is the SAAMCO counterfactual (S Ctf) and is it a useful device ascertaining the duty nexus?
– Where is the place for considering if the award of damages would be is fair, just and reasonable or in accord with policy considerations?
The Duty Nexus, Scope of Duty and Remoteness
The majority in the SC appear to be saying one of two things, perhaps both. The first is that there must be a nexus between duty and damage, and that connection is scope of duty. If so, then it appears that Q5 is a repetition of Q2. The second is that there must be a nexus between the scope of of duty and the type of loss being claimed.
As an application of the first, the scope of Dr Khan’s duty was haemopilia avoidance and only that. Autism avoidance was not within the doctor’s duty or the purpose which the patient sought. In comparison, Yip J crafted the claimant’s purpose as “to allow her to terminate any pregnancy afflicted by haemophilia” and concluded that autism costs were within the scope of duty.
To illustrate the second, the scope of duty of Dr Khan being haemophilia avoidance, the question arises – is there a nexus between haemophilia avoidance and autism? The SC answered this question in the negative. On this point, one notes Lord Burrows’ remark33At (75). that “the risk of the child having autism was not increased by the child having haemophilia”, with the implication that if there was an increase of risk, there would have been sufficient nexus. It seems there may be situations where the type of loss or damage, though not strictly within the scope of duty, may have a sufficient connection with the scope.
A related question, as indicated earlier, is – why is there the need for another requirement when deciding damages? The answer appears to be that the consideration of remoteness is insufficient. Apparently, there are situations where even though the type of loss is foreseeable, the claim should be denied. This is a major point of contention.
One view is that the conventional approach towards a claim of damages is that, after crossing the causation hurdle, one deals with the issue of remoteness and that should suffice to decide the justifiability of the claim. Indeed, Lord Burrows did not see how this extra step was “necessary or helpful”.34At (77). Along this line of reasoning, one could say that the necessary nexus is supplied by causation and unremoteness. Indeed, if we take the first interpretation of nexus mentioned above, there seems to be no role for the nexus question.
However, it we consider the second interpretation – the nexus between the assumed scope and the actual loss suffered – the nexus question does play a role. As explained above, if haemophilia increases the risk of autism, then there is a sufficient nexus, even though autism is not within the scope of duty.
The SAAMCO Counterfactual
What is a counterfactual? Basically, in a causative sequence, there is fact A (doctor’s wrong advice), followed by fact B (injury to patient). In the counterfactual exercise, we change fact A (and assume that the doctor’s advice was correct) and ask if fact B would still result.
Hence, as explained by Lords Hodge and Sales, the SAAMCO counterfactual “asks, whether, if the advice had been correct, the claimant’s action would have resulted in the same loss”. If it would, then the claim is outside the defendant’s scope of duty. At first blush, this analysis appears logical, but close scrutiny reveals faults in the argumentation.
It is illogical and unfair to make a factual supposition that fact B would still have eventuated. After all, the SC accepted that had Ms Meadows known she was a carrier of haemophilia, she would have gone for foetal testing if pregnant and would have aborted if the test result was positive. So, fact B was not supposed to eventuate.
In fact, it may cogently be argued that just as the claimants in Parkinson and in Groom did not want any baby, Ms Meadows did not want any haemophiliac baby. On this reasoning, it was within the doctor’s scope of duty to prevent Ms Meadows from giving birth to a haemophiliac baby, no matter what the accompanying deficiency may be.
It bears reiterating that their lordships acknowledged that it is sometimes useful and sometimes not useful to apply the counterfactual as a test but gave no guidance how to discern one situation from another. Until there is clarity on the matter, perhaps the SAAMCO counterfactual should be relegated in its importance.
If, indeed, something more should be considered at the damages stage, would it not be that notions of fair, just and reasonable (FJR) or policy35In the UK, the term ‘fair, just and reasonable’ is the more commonly used expression for the third aspect of duty of care; in Singapore, courts refer expressly to ‘policy considerations’ instead. For instance, Menon CJ remarked in Tan Woo Thian v PriceWaterhouseCoopers Advisory Services Pte Ltd (2021) SGCA 20 at 15: ‘Third, the imposition of the duty of care should not be negated by countervailing policy considerations….’ As regards the UK position, the authors of Markesinis and Deakin’s Tort Law, 8th ed, make the following observation at p 98: ‘A separate and additional requirement of “policy’ is mentioned in some cases, but in most situations it is difficult to distinguish this heading from the requirement that imposition of a duty should be ‘fair, just and reasonable.’ should come into play, as Yip J in the HC36As noted in the majority judgment at (19). and Lord Burrows in the SC had indicated?37At para (71). In the writers’ view, adding FJR/policy to the Q5 stage of damages would make the framework more robust.
The Dilemma of Binary Outcomes
While the HC awarded the claimant the £7.6m as regards autism management, the CA and the SC would not award any of it. As one ponders over the autism claim, there is serious doubt whether the claim should have been totally rejected.
Indeed, there are many arguments weighing in favour the claim, some of which had been accepted by the HC:
- the claimant was totally innocent and deserving of remedy;
- the defendant’s error was a basic one;
- it was the doctor’s duty to protect the claimant from conceiving any child with haemophilia;
- there was but-for causation, and the hypothetical chain of actions (including the termination of pregnancy) would have avoided the claimant having the baby born with haemophilia;38See Yip J’s judgment – (2001) EWCA Civ 1522 at (26).
- the damage was not too remote as autism is a foreseeable type of loss;
- there are policy grounds to support the claim; and
- the outcome would accord with Parkinson and Groom.
On point (d), one wonders how it is appropriate to ask the SAAMCO counterfactual question as the majority had done. The Court reasoned39At (68). that had Dr Khan’s advice (that the plaintiff did not have haemophilia in her genes) been correct, the baby would still have been born with autism. But, in the writers’ view, it is outrageous to ask this unrealistic question. The fact is that, as the Court had accepted, the plaintiff would have aborted; so there is no way for this hypothetical event to take place.
To elaborate further upon points (e) and (f) above, it is a well-accepted principle of remoteness of damage in a negligence claim that the type of loss needs to be foreseeable but the extent of loss or the manner of harm need not be.40See Hughes v Lord Advocate (1963) AC 837; The Wagon Mound (No.1) (1961) AC 308 and Rubenstein v HSBC Bank Plc (2012) EWCA Civ 1184, amongst others.
Relatedly, to deny Ms Meadows the claim for autism costs would put the case at odds with Parkinson and Groom. In each case, the mother ended up with a baby with severe disability which was unconnected with the doctor’s negligent sterilization and, in each, the CA held that the mother could recover the extra costs of raising a child with the special needs on the grounds, as Lords Hodge and Sales observed,41At (15). that:
… the birth of the child with such disabilities was a foreseeable consequence of the medical practitioner’s negligence, that the medical practitioner should be deemed to have assumed responsibility for such an outcome and that the imposition of such liability was not unjust, unfair or disproportionate.
As we have seen above, Lords Hodge and Sales drew a distinction between the instant case and the Parkinson and Groom cases by focusing on the “nature” of the medical service provided. In these cases, the object was to prevent the birth of any child while in Khan the aim was to prevent the birth of a child with the specific risk of haemophilia.
But, from another perspective, it could be argued that the Khan scenario is not so different. Ms Meadows did not want any haemophiliac baby just as the mothers in the two cases did not want any baby. The unrelated disability of the unwanted baby is irrelevant.
Further, for composite analysis and decision-making, the considerations of FJR/policy should be brought into play. Sensitivity to context demands the consideration of FJR/policy at the stage of damages just as it was necessary at the stage of duty of care. In terms of ability to bear the loss, it seems likely that the doctor, rather than the patient, is in a better position.
Also, if (which is likely) the doctor is insured, then it is the insurance company which bears the burden of heavy costs of autism management and distributive justice would support the award. The defendant doctor does bear some burden, in the form of higher premiums, but this amount is small relative to what the mother would otherwise have to bear.
Hence, it is far from obvious that the outcome in Khan is necessarily the correct or desirable one and that there are credible countervailing arguments to consider.
There is another problem. The approach of tort law, generally, is to adopt a binary philosophy or approach as regards the risk or burden of a specific item of loss. Apart from the reduction of a claim on account of contributory negligence, there is no existing concept or tool to allocate or distribute the particular loss as between the defendant and the plaintiff.
The AM costs of £7.6m, no doubt, is a very large sum. Yip J was prepared to grant the award but the CA and the SC would not give it. Neither outcome is entirely satisfactorily. Awarding Ms Meadows the full autism costs of £7.6m appears to unduly penalise the doctor but denying the claim leaves an innocent victim a huge burden. This appears to be a situation of two equally unattractive consequences.
Yet, as we cast our eyes to other legal realms, we observe situations where judges are given the discretion to moderate the amount to a level which they think is appropriate. For instance, where a contract is frustrated, section 2 of the Frustrated Contracts Act42Cap 115, Singapore Statutes. empowers the Court to allow the performing party to claim “the whole or any part of the sums paid or payable, in respect of expenses, as the Court ‘considers just’, having regard to all the circumstances of the case.” Likewise, as regards a breach of directors’ duties in company law, section 391of the Companies Act43Cap 50, Singapore Statutes. Section 263 of the Insolvency, Restructuring and Dissolution Act 2018 has similar wording. empowers the Court, in circumstances where the director may in some degree be considered to have acted honestly and reasonably, to relieve him wholly or partly, on such terms “as the court thinks fit”.
In both cases, the judge has discretion as to the variability of the amount. The writers wonder if such a facility should not also be given to judges in deciding the appropriate award of damages in a negligence claim. Some may object that this would break from convention and may open a Pandora’s box. The change may be radical but, in the writers’ view, this development is necessary and important as it helps judges to avoid binary outcomes and to arrive at calibrated outcomes44It would certainly be in accord with ‘the policy of achieving a fair and reasonable allocation of the risk of the loss that has occurred as between the parties’, to quote Lord Burrows (at (71)) in the instant case. as between the parties while being sensitive to the realities of the medical care landscape.
A Fairer Outcome – Allowing ACHM Costs?
There is another way, on the facts of Khan, to achieve a more optimal outcome, and that is to award the additional costs of an autistic child managing haemophilia (ACHM costs).45Another perspective or approach would be to consider a haemophiliac child’s autism management costs (HCAM costs). However, it does not appear that this alternative perspective would result in any difference in legal analysis. One possible difference, however, is that, conceptually, the egg-shell skull rule appears to support such a claim. Presumably, the quantum of such loss would be between the two extremes of £1.4m and £9m.
The case for ACHM costs is stronger and less controversial than for AM costs for several reasons:
- haemophilia avoidance is within the doctor’s scope of duty;
- ACHM costs are less remote than AM costs;
- there is a sufficient nexus between the scope of duty and the ACHMcosts;
- the outcome would be in accord with Parkinson and Groom; and
- the result would be fair, just and reasonable.
To elaborate upon (e) above, awarding Ms Meadows ACHM costs alleviates and reduces the intolerable burden she would otherwise have to shoulder. At the same time, it imposes, with logical circumspectiveness, the responsibility and liability which Dr Khan ought to bear for her basic error in giving medical advice.
Further, such calibrated delineation avoids placing inordinate responsibility on doctors in general and averts the undesirable cascading repercussions on the medical care system. It is in accord with tort objectives of corrective justice, distributive justice and deterrence.
Further Comments on the Hodge-Sales Framework
It should be noted that Lord Burrows did not think that Hodge-Sales was “necessary or helpful”.46At (78). His lordship offered his own framework of 7 questions; space constraints do not permit a discussion of his framework. Lord Legatt similarly felt that it was “undesirable as well as unnecessary to engage in such as exercise”;47At (96). strong words indeed.
Perhaps the framework for negligence should be modified as follows:
- Was there a duty of care (foreseeability, proximity, policy);
- What was the content of duty (scope of duty, standard of care);
- Was there a breach (as regards scope and standard);
- Was there causation (“but-for” causation, material contribution etc);
- Ascertainment of damages; and
Further, Q5 involves various matters, namely:
- remoteness of damage (foreseeable type of loss);
- nexus with scope of duty (as proposed by Lords Hodge and Sales);
- novus actus (if relevant, as pointed out by Lord Leggatt);
- FJR/policy (as proposed by the writers).
The Khan v Meadows is an important and difficult case.
First, its factual matrix is a challenging and one struggles over what the most acceptable outcome should be. It would have been desirable if ACHM costs, a more mediatory amount, had been argued and accepted by the courts. Second, the Khan case addresses the importance of scope of duty analysis. The content of duty (scope of duty and standard of care) is logical step after duty of care and before breach. Third, it highlights the need to expand the framework at the damages stage to accommodate other considerations.
Indeed, many difficult and complicated issues are raised by the Khan decision and one awaits clarification and enlightenment.
The authors are much indebted to Nicholas Liu and Leong Kwong Sin, respectively, for the very helpful discussions on this case. Errors and deficiencies are ours alone.
|↑1||(1932) AC 562.|
|↑2||(2021) UKSC 21; (2021) All ER (D) 44.|
|↑3||(2021) UKSC 20. The Manchester Building Society case involves a very different scenario of the liability of an accounting firm for advising its client that ‘hedge accounting’ was an appropriate model for the building society to adopt. As the factual dynamics of the two cases are radically different and involve different tensions and considerations, it is best to examine Khan on its own. Whilst Khan is a difficult case in terms of the correct outcome, it is quite clear in the Manchester Building Society case that the damage being claimed was within the defendant’s scope of duty.|
|↑4||If there was doubt over the outcome as regards one or more of these hypothetical actions, then the issue of loss of chance arises. On this controversial topic, although the current judicial thinking is that, for a loss of chance claim to succeed, the enquiry at each stage must satisfy the threshold of balance of probabilities, the writers prefer the view that a substantial chance should be required instead. Further, the assessment of the appropriate quantum of damages should be arrived at by taking a cumulative summation of the chances along the ‘hypothetical virtuous chain’. See J Liang & KY Low, Recognizing Lost Chances in Tort Law (2014) SJLS 98-122 and KY Low and A Lim, Standard of Care and Indeterminacy in Medical Negligence, Law Gazette, Oct 2019.|
|↑5||(2017) EWHC 2990 (QB); (2018) 4 WLR 8 at paras (62), (63) and (68).|
|↑6||(2001) EWCA Civ 530; (2002) QB 266.|
|↑7||(2001) EWCA Civ 1522; (2002) Lloyd’s Rep Med 1.|
|↑8||(2019) EWCA Civ 152; (2019) 4 WLR 26.|
|↑9||Which was agreed to by Lord Reed, Lady Black and Lord Kitchin.|
|↑14||At (48) – (52).|
|↑16||(1990) 2 AC 605.|
|↑20||At (30), where it was pointed out that answers to the questions of causation and foreseeability ‘cannot circumvent questions relating to scope of duty.|
|↑21||At (71), referencing his judgment in Manchester Building Society v Grant Thornton (2021) UKSC 20.|
|↑32||(2021) SGCA 20 at (19). The learned judge also used the term at para (18) of his judgment.|
|↑35||In the UK, the term ‘fair, just and reasonable’ is the more commonly used expression for the third aspect of duty of care; in Singapore, courts refer expressly to ‘policy considerations’ instead. For instance, Menon CJ remarked in Tan Woo Thian v PriceWaterhouseCoopers Advisory Services Pte Ltd (2021) SGCA 20 at 15: ‘Third, the imposition of the duty of care should not be negated by countervailing policy considerations….’ As regards the UK position, the authors of Markesinis and Deakin’s Tort Law, 8th ed, make the following observation at p 98: ‘A separate and additional requirement of “policy’ is mentioned in some cases, but in most situations it is difficult to distinguish this heading from the requirement that imposition of a duty should be ‘fair, just and reasonable.’|
|↑36||As noted in the majority judgment at (19).|
|↑37||At para (71).|
|↑38||See Yip J’s judgment – (2001) EWCA Civ 1522 at (26).|
|↑40||See Hughes v Lord Advocate (1963) AC 837; The Wagon Mound (No.1) (1961) AC 308 and Rubenstein v HSBC Bank Plc (2012) EWCA Civ 1184, amongst others.|
|↑42||Cap 115, Singapore Statutes.|
|↑43||Cap 50, Singapore Statutes. Section 263 of the Insolvency, Restructuring and Dissolution Act 2018 has similar wording.|
|↑44||It would certainly be in accord with ‘the policy of achieving a fair and reasonable allocation of the risk of the loss that has occurred as between the parties’, to quote Lord Burrows (at (71)) in the instant case.|
|↑45||Another perspective or approach would be to consider a haemophiliac child’s autism management costs (HCAM costs). However, it does not appear that this alternative perspective would result in any difference in legal analysis. One possible difference, however, is that, conceptually, the egg-shell skull rule appears to support such a claim.|
|↑46||At (78). His lordship offered his own framework of 7 questions; space constraints do not permit a discussion of his framework.|