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The 'scope of duty test' for causation: when 'but for' is just not enough - James Weston, 7BR

29/01/19. On Friday 23 November 2018 the Court of Appeal handed down judgment in Khan v MNX [2018] EWCA Civ 2609. The decision will have widespread implications for clinical negligence claims.

The Claimant wanted to know whether any child she might have would be a haemophiliac. She attended her GP. On the basis of blood tests she was advised that any child she would carry would not be a haemophiliac. The Claimant went on to have a haemophiliac child, who also suffered from unrelated autism.

The Claimant brought an action to recover for the added costs of raising a child with haemophilia and autism; she did not seek the ordinary costs of raising a child without a disability in accordance with McFarlane v Tayside Health Board [2000] 2 AC 59.

The Defendant admitted breach of duty and accepted that but for the negligent information given by the Defendant the Claimant would not have had a child and would not have had to bear the costs of raising a child with haemophilia and autism. The Defendant, however, argued that whilst the added costs of raising a child with haemophilia were recoverable, the costs related to autism were not as they fell outside the scope of the duty of care assumed by the GP.

At first instance Yip J found for the Claimant on the basis that “but for” causation was met for the costs related to autism. The Court of Appeal, however, overturned the decision. The court was required to apply the “scope of duty test” for causation as set out in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 [hereinafter “SAAMCO”]. This was a case involving the provision of negligent property valuation information. The House of Lords held that the Claimants could only recover for losses that were...

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