Scope of the duty – Avoiding the avalanche

When is a doctor responsible for losses suffered after they have given bad advice? According to the Court of Appeal, if the loss is “coincidental”, it’s not recoverable.

On 23rd November 2018 the Court of Appeal handed down judgment in the case of MNX v Khan [2018] in which it considered the extent to which the limits on the scope of duty imposed by “SAAMCOSouth Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, applied in clinical negligence cases. In SAAMCO Lord Hoffman gave the famous example of a doctor, who negligently advised a mountaineer that their knee was fit to go climbing, not being liable for the consequences of the mountaineer being injured in an avalanche, even if but for the negligence they would not have gone up the mountain and so would have avoided the avalanche. On the facts of MNX, the Defendant GP negligently failed to advise the Claimant that she was a carrier of the haemophilia gene, and as a result when she fell pregnant she did not undergo tests to ascertain whether her child would have haemophilia. It was accepted by the Defendant that if the Claimant had been given the appropriate advice, she would have undergone those tests and would have terminated the pregnancy. The Claimant gave birth to a child suffering from haemophilia but also with severe autism. The issue for the Court was whether or not the costs associated with the autism fell outside the scope of the Defendant’s duty such that they were not recoverable.

In a decision which will have significance in other clinical negligence cases where a Defendant’s negligence causes a “coincidental” loss, the Court of Appeal concluded that it was not sufficient for the Claimant to establish standard “but for” causation. Even though “but for” the Defendant’s negligence the costs associated with child’s autism would have been avoided, the losses for which the Defendant was liable were limited by the scope of duty principles in SAAMCO. Those principles required the court to address three questions:

  1. What was the purpose of the procedure/information/advice which is alleged to have been negligent;
  2. What was the appropriate apportionment of risk between the doctor and the patient, taking account of the nature of the advice, procedure, information;
  3. What losses would in any event have occurred if the defendant’s advice/information was correct or the procedure had been performed?

Given that the purpose of the Claimant’s appointment was to protect her from the costs associated with having a child with haemophilia and given that the Claimant accepted the risks of all other potential difficulties of pregnancy, the Claimant could not recover for the costs associated with her child having autism (as they were outside the scope of the Defendant’s duty).

Up until now, SAAMCO/scope of duty points have rarely been considered in clinical negligence cases, and so this decision may represent the start of a wider exploration of SAAMCO and its mountaineer’s parable in such claims.


Neil Davy acted for the successful Appellant.