Wrongful birth: claiming the costs of unrelated disabilities

Neil Davy recently appeared in a ‘wrongful birth’ case in which the High Court awarded damages to a Claimant for the costs associated with a disability which was unrelated to the Defendant’s admitted negligence. In this respect, MNX v Khan [2017] EWHC 2990 (QB) was said to be the first case of its kind, although Yip J sought to resolve the case by reference to established principles.

It should be noted that the Defendant has been granted permission to appeal to the Court of Appeal.

The facts

The Claimant’s son (‘AM’) was born with haemophilia and autism. It was agreed that the Defendant negligently caused the former by failing to determine that the Claimant was a carrier of the haemophilia gene. But for the negligence, the Claimant would have terminated her pregnancy. The Defendant therefore agreed that the Claimant could recover the costs associated with AM’s haemophilia. However, it was disputed that the Claimant could recover the costs associated with AM’s autism, which was not related to the Defendant’s negligence.

Yip J framed the issue as follows: ‘Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to avoid the birth of any child) recover damages for the additional costs associated with an unrelated disability?’ [2]

Answering this question with a ‘yes’ would lead to a £9,000,000 award of damages, whereas answering ‘no’ would lead to a £1,400,000 award. Consequently, much was at stake for both parties. In the circumstances, Yip J answered ‘yes’.

The legal analysis

Yip J’s judgment began by confirming that no sensible distinction in principle can be made between ‘wrongful birth’ and ‘wrongful conception’ claims, the Claimant’s case falling within the former group [9]. This accorded with Hale LJ’s similar comments in Groom v Selby [2001] EWCA Civ 1522, [2002] PIQR P18, [28].

Yip J went on to review the authorities on wrongful birth. Her Ladyship placed particular reliance on Groom and Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 [2002] QB 266, in both of which there was no direct link between the negligence and the child’s disability.

The dispute in this case did not relate to proximity and foreseeability; indeed, the Defendant conceded that ‘but for’ causation was made out [22]. Instead, the parties’ disagreement went to the issues of (i) the assumption of responsibility, (ii) the scope of the duty of care, and (iii) the extent to which it would be fair, just and reasonable to hold the Defendant liable for the costs related to AM’s autism.

Based on the principle established in South Australia Asset Management Corporation v York Montague [1997] AC 191 (‘SAAMCO’) — namely, that one must determine the kind of loss in respect of which a duty of care is owed — the Defendant argued that all the foreseeable risks of the pregnancy cannot be transferred to a doctor who has provided a service in relation only to one specific risk, namely the risk of haemophilia [37]. The loss referable to AM’s autism was not the kind of loss in respect of which the Defendant’s duty was owed [34]. Moreover, the Defendant had not assumed responsibility to protect the Claimant from all the consequences of her decision to proceed with the pregnancy [46].

Yip J did not accept the Defendant’s submissions. Her Ladyship started out by holding that that, as a matter of simple ‘but for’ causation, AM would not have been born but for the Defendant’s negligence. Consequently, the Claimant would not have had a child with the combined problems of haemophilia and autism [53].

As to the ‘scope of duty’ argument, Yip J held as follows:

[T]he focus of the defendant’s duty and the very purpose of the service the claimant sought was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. The birth of Adejuwon resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck, in the same way that the meningitis in Groom was bad luck. Equally, each condition was the natural consequence of a pregnancy that would not have continued if the doctor’s duty had been performed correctly. The scope of the duty in this case extended to preventing the birth of Adejuwon and all the consequences that brought.’ [62] (emphasis added)

Similarly, whilst Yip J accepted that the Defendant assumed no specific responsibility in relation to autism, he ‘did assume a responsibility which, if properly fulfilled, would have avoided the birth of the child in question’ [63].

As to whether it was fair, just and reasonable to impose a duty in respect of the autism costs, Yip J noted that this was ‘an area where opinions may differ’ and ‘[t]he sensitivities of this case perhaps give rise to even more ground for debate’. However, her Ladyship held that allowing recovery of the costs of autism ‘will not open the floodgates to numerous other claims’ because the coexistence of two disabilities will be rare [67].

Additionally, despite there being no direct link between the autism and the negligence, it would not be fair, just or reasonable to distinguish between the Claimant, who would have wanted to terminate this pregnancy, and a mother who would have wanted to terminate any pregnancy [68].

Yip J therefore considered that the costs of AM’s unrelated autism were recoverable, and damages were assessed in the sum of £9,000,000. As stated above, the Defendant was granted permission to appeal. Clinical negligence lawyers and healthcare professionals will likely be keeping a close eye on the outcome of the appeal.