Analyzing Damages: Scope of Duty Principle in Negligence Law, Study notes of Law

Download Analyzing Damages: Scope of Duty Principle in Negligence Law and more Study notes Law in PDF only on Docsity! Trinity Term [2021] UKSC 21 On appeal from: [2019] EWCA Civ 152 JUDGMENT Khan (Respondent) v Meadows (Appellant) before Lord Reed, President Lord Hodge, Deputy President Lady Black Lord Kitchin Lord Sales Lord Leggatt Lord Burrows JUDGMENT GIVEN ON 18 June 2021 Heard on 5 November 2020 Appellant Respondent Philip Havers QC Simeon Maskrey QC Eliot Woolf QC Neil Davy (Instructed by Taylor Rose MW) (Instructed by BLM Solicitors (London)) Page 4 11. Dr Khan admitted that she was liable to compensate the appellant for the additional costs associated with Adejuwon’s haemophilia but denied responsibility in relation to the additional costs associated with his autism. 12. In the statement of facts and issues the parties agreed that it was “reasonably foreseeable that as a consequence of [Dr Khan’s] breach of duty, the appellant could give birth to a child that suffered from a condition such as autism as well as haemophilia”. The parties’ contentions 13. The appellant contends that she is entitled to damages for the continuation of the pregnancy and its consequences, including all the costs related to Adejuwon’s disabilities arising out of the pregnancy. The respondent contends that her liability should be limited to the costs associated with Adejuwon’s haemophilia and that the costs associated with his autism fall outside the scope of the duty she owed to the appellant. The judgments of Yip J and the Court of Appeal 14. In her judgment ([2017] EWHC 2990 (QB); [2018] 4 WLR 8), Yip J described the legal issue which she had to address in these terms (para 2): “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?” She answered that question in the affirmative and awarded the appellant £9m inclusive of interest. Much of the debate before Yip J concerned two judgments of the Court of Appeal: Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266 (“Parkinson”) and Groom v Selby [2001] EWCA Civ 1522; [2002] Lloyd’s Rep Med 1 (“Groom”). In the first case, Mrs Parkinson became pregnant following a failed sterilisation. Her son was born with severe disabilities which were not connected to the sterilisation. In the second case, Mrs Groom underwent a sterilisation operation at a time when unknown to anyone she was about six days pregnant. Shortly afterwards, she consulted her general practitioner who failed to arrange a pregnancy test or examine her to see if she was pregnant. By the time she discovered her pregnancy, she did not wish to have a termination, but she would have terminated the pregnancy if informed sooner. She later gave birth to a child with salmonella meningitis resulting in severe Page 5 disability. In each case, there was no direct connection between the negligence of the medical practitioner and the disability. In the first case the source of the child’s disability was genetic and in the second the disability arose from exposure to a bacterium during the process of her birth. In each case, the mother had not wanted to have any further children and she sought the services of the defendants for that purpose. 15. In each case, in which Brookes LJ and Hale LJ gave the substantive judgments, the Court of Appeal held, in accordance with the judgments of the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59, which concerned negligent medical advice after a vasectomy, that a parent could not be compensated for the basic maintenance of a healthy, much loved child. But the court held in each case that that ruling did not extend to the birth of a child with significant disabilities and that the claimant could recover compensation for the extra costs of providing for the child’s special needs and care relating to the child’s disability. In each case, the court held, among other things, 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. 16. In her judgment Yip J noted (para 38) that the Court of Appeal had had regard to SAAMCO in Parkinson, in which Brookes LJ stated (para 18): “it may be necessary on some occasions for a court to ask itself for what purpose a service was rendered, because that inquiry may stake out the limits of the duty of care owed by the person performing the service.” She observed (para 40) that the House of Lords had considered the application of SAAMCO in a different context in a clinical negligence claim in Chester v Ashfar [2005] 1 AC 134. She also referred to the discussion of SAAMCO in the leading judgment of Lord Sumption in this court in Hughes-Holland v BPE Solicitors [2017] UKSC 21; [2018] AC 599 (“Hughes-Holland”). 17. Yip J stated, correctly, in para 26 that the purpose of the service offered by the defendant in this case “was not to prevent the claimant from having any child but rather, ultimately, to prevent her having a child with haemophilia”. But she also observed: Page 6 “[The claimant] wished to establish whether she was a carrier. If the service had been performed properly, she would have discovered that she was. She would then have taken steps to ensure that she did not continue with a pregnancy that was going to lead to the birth of a child with haemophilia. In that way, the birth of Adejuwon would have been avoided. Just as in Groom, it can be said that the defendant’s breach of duty caused the claimant’s pregnancy to continue when it would otherwise have been terminated.” 18. In holding the defendant liable for the costs associated with both Adejuwon’s haemophilia and his autism, she observed that as a matter of “but for” causation Adejuwon would not have been born but for the defendant’s negligence. She recognised that if the claimant had had another pregnancy, it would carry the same risk of autism but held that on the balance of probabilities the subsequent pregnancy would not have been affected by autism. The autism arose out of this pregnancy which would have been terminated but for the defendant’s negligence. 19. In para 59 she identified four determinative issues which she derived from Parkinson and Groom: “(i) Whether the autism was a consequence falling within the responsibility the defendant had assumed; (ii) The purpose of the service provided by the defendant and the scope of the duty that arose from that; (iii) Whether it was fair, just and reasonable to impose liability for the costs associated with Adejuwon’s autism; (iv) Principles of distributive justice.” In addressing those questions and reaching the conclusion that the defendant was liable, Yip J relied principally on two considerations. First, she held that the focus of the defendant’s duty and the claimant’s purpose in seeking the service was to provide the claimant with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia (para 62). Secondly, the defendant assumed a responsibility which, if properly fulfilled, would have avoided the birth of Adejuwon (para 63). She concluded that it was not fair, just and reasonable to distinguish between the mother who wanted to terminate this pregnancy and the mother who would have wanted to terminate any pregnancy; nor did any principle Page 9 on Torts, 23rd ed (2020), para 7-04, the authors list these ingredients as (1) the existence of a duty of care situation, (2) the breach of that duty by the defendant, (3) a causal connection between the defendant’s careless conduct and the damage and (4) the existence of a particular kind of damage to the particular claimant which is not so unforeseeable as to be too remote. The authors state: “There is no magic in the order as set out, nor should it be supposed that courts proceed from points (1) to (4) in sequence”. The authors of Winfield and Jolowicz on Tort, 20th ed (2020) suggest that the tort of negligence is constituted by those four elements which they place in order as (i) the duty of care, (ii) its breach, (iii) damage and (iv) causation (para 5-002). They point out that a given fact pattern can put several elements in issue simultaneously and that the elements are interlinked. They suggest that it is conventional for the courts to address the elements of the tort in sequence with the question of duty being a threshold question (para 5-007): “Taking the elements of the tort in this order can help judges to structure their decisions and to ensure that elements are not overlooked. Furthermore, the order in which the elements of the tort are considered is important because they form an integrated whole, in which one element can be defined and analysed only in terms of the other elements. For example, as questions of causation and remoteness concern the link between the breach of duty and the damage, it is important to look at fault and damage before looking at causation.” In relation to the third and fourth elements of this analysis (damage and causation) the authors suggest (para 7-001) that there are four distinct concepts of actionable damage, causation in fact, causation in law, and remoteness. 25. The authors of Charlesworth and Percy on Negligence, 14th ed (2018), (para 1.34) combine the third and fourth elements of the analysis in the concept of “resulting damage”, namely “damage which is both causally connected with the breach and recognised by the law, has been suffered by the complainant”. The authors cite Lord Pearson in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1052: “The form of the order assumes the familiar analysis of the tort of negligence into its three component elements, viz, the duty of care, the breach of that duty and the resulting damage. The analysis is logically correct and often convenient for purposes of exposition, but it is only an analysis and should not eliminate consideration of the tort of negligence as a whole.” Page 10 26. In their discussion of the role of the scope of duty principle in the context of claims for pure economic loss the authors of Clerk and Lindsell state (para 2-187): “What the defendant can reasonably contemplate as a consequence of his breach must depend upon the scope or purpose of his duty. If the risk of the particular kind of damage fell outside the purpose of the defendant’s duty, then however foreseeable that risk in general terms, it would not fall within the reasonable contemplation of the defendant.” This appeal therefore raises the questions: How does the scope of duty principle fit into the conventional analyses of negligence, and has it any application outside claims for pure economic loss? 27. Mr Simeon Maskrey QC in seeking to uphold the judgment of the Court of Appeal began his able submission by setting the scope of duty question, which the House of Lords’ decision in SAAMCO has highlighted, in the context of the series of questions which one may ask when analysing whether a claimant is entitled to recover damages for loss caused by the tort of negligence. It was a helpful exercise. We will reformulate and expand upon his questions and carry out a similar exercise before explaining the various stages of, and the role of the scope of duty question in, that analysis. 28. In our view, and as explained in more detail below, a helpful model for analysing the place of the scope of duty principle in the tort of negligence, and the role of the other ingredients upon which Mr Havers has relied in this context, consists of asking six questions in sequence. It is not an exclusive or comprehensive analysis, but it may bring some clarity to the role of the scope of duty principle which SAAMCO highlighted. Those questions are: (1) Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question) (2) 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) (3) Did the defendant breach his or her duty by his or her act or omission? (the breach question) Page 11 (4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question) (5) 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) (6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question) Application of this analysis gives the value of the claimant’s claim for damages in accordance with the principle that the law in awarding damages seeks, so far as money can, to place the claimant in the position he or she would have been in absent the defendant’s negligence. 29. It is quite possible to consider these matters in a different order and to address more than one question at the same time; for example, in many cases the second and the fifth questions can readily be analysed together. We address the relationship between the second and fifth questions in the context of a claim to which the reasoning in SAAMCO applies in paras 38 and 48-52 below. 30. But this analysis serves to demonstrate that the answers to the questions of factual causation and foreseeability, on which Mr Havers relies, cannot circumvent the questions which must be asked in relation to the scope of the defendant’s duty. 31. The first question arises because it is trite that a claim in tort is incomplete without proof of damage. Lord Reid stated in Cartledge v E Jopling & Sons Ltd [1963] AC 758, pp 771-772: “a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible.” In a Scottish appeal, Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) 92, 109, Lord Reid similarly stated: Page 14 the claimant would reasonably rely on the representation: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Caparo Industries plc v Dickman [1990] 2 AC 605 (“Caparo”); NRAM Ltd (formerly NRAM plc) v Steel [2018] UKSC 13; [2018] 1 WLR 1190; 2018 SC (UKSC) 141. Similarly, limits have been imposed on the scope of a defendant’s duty to avoid causing psychiatric injury to secondary victims in an accident or disaster: McLoughlin v O’Brian [1983] 1 AC 410; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 34. In Caparo, the House of Lords held that a company’s auditor did not owe a duty of care to non-shareholders or shareholders, who made investment decisions in reliance on the statutory report, and thereby did not incur liability to them for careless statements in his report. This was because the purpose of the report was limited to enabling shareholders to make informed decisions about the exercise of their rights under the company’s constitution. Lord Bridge of Harwich cited Brennan J in Sutherland Shire Council v Heyman (above) and said (p 627): “It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.” In the same case Lord Roskill stated (p 629B): “before the existence and scope of any liability can be determined, it is necessary first to determine for what purposes and in what circumstances the information in question is to be given.” Lord Oliver of Aylmerton said (p 651): “It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained.” Lord Oliver continued (p 654): Page 15 “To widen the scope of the duty to include loss caused to an individual by reliance upon the accounts for a purpose for which they were not supplied and were not intended would be to extend it beyond the limits which are so far deducible from the decisions of this House.” 35. As Lord Sumption has recently explained in Hughes-Holland, this principle was developed by the House of Lords in a series of cases concerning the negligent valuation of property following the property crash in the early 1990s: SAAMCO, Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (formerly Edward Erdman (an unlimited company) (No 2) [1997] 1 WLR 1627 (“Nykredit”) and Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190 (“Platform Home Loans”). The principle was applied by this court in relation to negligent misstatements by a solicitor in Hughes-Holland, and it was recognised by the Court of Appeal in the context of a medical negligence claim in Parkinson (above). 36. What is often called “the SAAMCO principle” or “the scope of duty principle” is that “a defendant is not liable in damages in respect of losses of a kind which fall outside the scope of his duty of care”: Aneco Reinsurance Underwriting Ltd (in liquidation) v Johnson & Higgins Ltd [2001] UKHL 51; [2001] 2 All ER (Comm) 929; [2002] 1 Lloyd’s Rep 157, para 11 per Lord Lloyd of Berwick. In Platform Home Loans Lord Hobhouse made the same point, stating (p 209B), “it is the scope of the tort which determines the extent of the remedy to which the injured party is entitled”. Lord Hobhouse went on to point out (p 209G) that Lord Hoffmann’s development of this reasoning in SAAMCO was that “instead of applying it to kinds or categories of damage,” he “applied it to the quantification of damage” (emphasis in the original). In our view, there is merit in referring to this principle as “the scope of duty principle” rather than the SAAMCO principle because it predates SAAMCO and applies also in circumstances in which it is not necessary to consider separately the duty nexus question by reference to the counterfactual methodology developed in SAAMCO. The “scope of duty principle” as so defined is different from what we have called the SAAMCO counterfactual, which, as we discuss in paras 53-54 below, is an analytical tool which is useful in some but not all circumstances in ascertaining the extent of a defendant’s liability which flows from the breach of a duty of a defined scope. 37. The scope of duty principle may also be of analytical value and of central importance in other circumstances, such as where a claimant seeks to establish liability arising from a defendant’s omissions. One example is when the court is considering whether a defendant owed a duty to prevent injury or damage to the person or property of a claimant which has been caused by a third party. See, for example, Smith v Littlewoods Organisation Ltd [1987] AC 241; 1987 SC (HL) 37, Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874; 2009 SC (HL) Page 16 21, and Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732. 38. In our view it is often helpful to ask the scope of duty question before turning to questions as to breach of duty and causation. It asks: “what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?” The question is appropriately asked and answered at this stage, if it can be, in relation for example to the circumstances in which loss has been incurred, as in Caparo where the auditor owed no duty to the would-be investor, or in relation to claims resulting from omissions as in the cases mentioned above. The matter is less straightforward where a scope of duty question arises in relation to the quantification of damages, as in SAAMCO, where there is a question whether part or all of the loss claimed was the consequence of the risk against which the defendant had to take care. In such circumstances, having identified the risks against which the defendant has undertaken to protect the claimant, the further question at stage 5 of our suggested sequence (the duty nexus question) addresses how the defendant’s scope of duty determines the extent of a defendant’s liability. 39. In SAAMCO Lord Hoffmann said that it was wrong to analyse the scope of duty question as one of the measure of damages by asking how to put the plaintiff in the position he would have been if he had not been injured. He stated (p 211): “I think that this was the wrong place to begin. Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation. A correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages. For this purpose it is better to begin at the beginning and consider the lender’s cause of action.” Lord Hoffmann expanded on this reasoning in Nykredit (p 1638): “Your Lordships [in SAAMCO] identified the duty [of the valuer] as being in respect of any loss which the lender might suffer by reason of the security which had been valued being worth less than the sum which the valuer had advised. The principle approved by the House was that the valuer owes no duty of care to the lender in respect of his entering into the transaction as such and that it is therefore insufficient, for the purpose of establishing liability on the part of the valuer, to prove that the lender is worse off than he would have been if Page 19 first of these inquiries, widely undertaken as a simple ‘but for’ test, is predominantly a factual inquiry.” 45. McGregor on Damages, 21st ed (2020), para 8-003 states that the “but for” test is a threshold test and not a sufficient condition of the imposition of liability, and defines it in this way: “The defendant’s wrongful conduct is a cause of the claimant’s harm if such harm would not have occurred without it; ‘but for’ it.” When Lord Nicholls and Mr McGregor spoke of “wrongful conduct” in those passages, they were not addressing the circumstance identified in, among other cases, SAAMCO in which the defendant’s conduct might be wrongful in relation to certain elements of harm but not in relation to others. Where the defendant’s conduct can be properly described as negligent because it gave rise to some actionable damage, as for example in the valuers’ negligence cases, the factual causation question may properly be framed as being whether the loss for which the claimant seeks damages is the consequence of the defendant’s negligence. In that circumstance the separate fifth question about the nexus between the legal duty and particular elements of the harm will be essential in the task of identifying the scope of the defendant’s liability. We address this point further in paras 48-51 below. 46. But the “but for” test is not of universal utility. It has been criticised as a test of factual causation because it excludes a common sense approach which the common law favours and because it implies that value judgment should have no role in factual causation: March v E and M H Stramare Pty Ltd (1991) 171 CLR 506, 515 per Mason CJ, cited with approval by Glidewell LJ in Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360, 1374. In fact, value judgments do play a role and the “but for” test is inadequate in cases in which there is more than one wrongdoer and more than one sufficient cause for the harm. 47. The fifth question (the duty nexus question) may in many cases be answered straightforwardly because the defendant was unquestionably under a duty of care to protect the claimant from the harm for which he or she claims damages. Thus, if a driver of a car drives carelessly and injures a pedestrian who is walking on the pavement, the defendant driver breaches the duty of care which he or she owes to the pedestrian to avoid inflicting physical injury and is liable in damages for such injury and for the economic loss consequent upon the injury, such as loss of wages and costs of care. Similarly, if a surgeon negligently performs an operation and causes his or her patient to suffer pain, an extended period in hospital and similar Page 20 consequent economic loss, the court will readily answer those questions in the affirmative. 48. As Caparo demonstrates, there may be circumstances in which loss is incurred which is wholly outside the defendant’s duty of care. In such circumstances, the scope of duty question provides an answer and the duty nexus question does not require to be considered separately: an auditor does not owe a duty of care to an investor, including a shareholder in the audited company, who relies on his or her skill and care in the auditing of the statutory accounts when deciding to invest in the company. 49. The scope of duty question may also arise in relation to the extent of damage. There may be elements of loss which the claimant has suffered as a consequence of a defendant’s acts or omissions which are within the defendant’s duty of care, and elements which are outside the scope of that duty. In such circumstances, which arose in SAAMCO and the other valuer’s negligence cases, the duty nexus question falls to be addressed after the court has determined that there is a (factual) causal connection between the defendant’s act or omission and the loss for which the claimant seeks damages. 50. The duty nexus question, as is well known, came to the fore in cases concerning valuers’ negligence. It was concerned with the allocation of risk in relation to a commercial transaction - the lending of money for the acquisition or development of commercial property. The professional valuer provides the would- be lender with important information as to the value of the property and that information is sometimes fundamental to the financial institution’s decision whether it will lend and, if it will, how much it will lend. But the financial institution takes into account other commercial considerations, such as its own assessment of likely trends in the property market, the strength of the borrower’s covenant, its own costs in providing the necessary funds to the borrower, and the appropriate rate of interest to charge. Where, having regard to the scope of the professional service which he or she has undertaken, it is concluded that the professional adviser is not to be treated as having taken responsibility for all the consequences of the commercial transaction (the scope of duty question), it is necessary to identify how much of the losses which the financial institution has sustained in the transaction fall within the responsibility of the defendant valuer. 51. In SAAMCO (p 214), Lord Hoffmann stated the matter thus: “It is that a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as Page 21 responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties. … The principle thus stated distinguishes between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and, if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.” 52. In this context where the defendant valuer has provided a negligent service which has caused some actionable loss to the claimant, 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. The method which the court has adopted, is first to identify what Lord Nicholls described in Nykredit as “the basic measure” of the claimant’s loss and Lord Hobhouse in Platform Home Loans described as the “basic loss” which the claimant has suffered. That is the total loss arising as a matter of “but for” factual causation from the defendant’s careless valuation, which includes losses caused by a fall in market values. Because the valuer has not taken responsibility for the fluctuations in market value, but only for the consequences of the valuation being wrong, one must then identify from the “basic loss” the losses which fall within the scope of the valuer’s duty. 53. The mechanism by which the duty nexus question is addressed in the valuers’ negligence cases is to ask a counterfactual question: what would the claimant’s loss have been if the information which the defendant in fact gave had been correct? We refer to that question as “the SAAMCO counterfactual”. It is sometimes misunderstood. The question is not whether the claimant would have behaved differently if the advice provided by the defendant 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. By this means, the court can ascertain the loss which is attributable to that information being wrong. In some circumstances, as in valuers’ negligence, it is appropriate to use this counterfactual. In other circumstances, the Page 24 anchor the scope of duty principle in the question as to the defendant’s duty of care, while recognising as we do (para 41 above) that in many cases the court, having established that the defendant was negligent in relation to at least some of the damage, will have to ask itself the duty nexus question in applying the scope of duty principle to the quantification of the claimant’s loss. 60. Against that background we turn to consider Mr Havers’ criticisms of the Court of Appeal’s judgment. 61. In essence Mr Havers’ submission boils down to two points, that the scope of duty principle as applied in SAAMCO does not apply to claims arising out of clinical negligence, and that if the court were to conclude that that principle did apply generally, an exception should be crafted for cases of clinical negligence. We are unable to accept either submission. 62. First, there is no principled basis for excluding clinical negligence from the ambit of the scope of duty principle. Nor is there any principled basis for confining the principle to pure economic loss arising in commercial transactions. As we have already observed, Lord Sumption stated in Hughes-Holland (para 47), that the principle is a general principle of the law of damages. It is therefore not relevant to its applicability whether a claim is characterised as one for economic loss consequent upon a physical injury or as pure economic loss. That distinction may on the other hand be relevant to the outcome of the application of the principle because in cases where there is a duty to take care to avoid causing physical injury, the economic loss consequent upon that injury will generally be within the scope of duty and will be recoverable if it is not excluded by the legal filters which we have described in our discussion of the sixth question. 63. In many, and probably a large majority of, cases of clinical negligence the application of the scope of duty principle results in the conclusion that a type of loss or an element of a claimant’s loss is within the scope of the defendant’s duty, without the court having to address the SAAMCO counterfactual. Where a surgeon negligently performs an operation and causes both physical injury and consequent economic loss to the patient, both types of loss will normally be within the scope of the defendant’s duty of care. In other words, by undertaking the operation on the patient the surgeon takes responsibility for physical harm caused by any lack of skill and care in performing the operation and for consequential economic loss. Similarly, when a general medical practitioner negligently prescribes unsuitable medication, thereby causing injury or failing to prevent the development of an otherwise preventable medical condition, both the injury or condition and the consequential economic loss will generally be within the scope of the defendant’s duty. The negligent care of a mother in the final stages of pregnancy can sadly have the result of the birth of a baby with brain damage and the defendant is normally liable to pay Page 25 compensation for both the injury and the consequential additional cost of caring for the disabled child. 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 Parkinson the service undertaken was to prevent a pregnancy while in Groom the task which should have been performed was to make sure that the mother was not pregnant notwithstanding her recent sterilisation. In both cases the added economic costs of caring for a disabled child, whatever his or her disability, were within the scope of the defendant’s liability because of the nature of the service which the defendant had undertaken. In none of those cases did the SAAMCO counterfactual have a role to play. But it is necessary in every case to consider the nature of the service which the medical practitioner is providing in order to determine what are the risk or risks which the law imposes a duty on the medical practitioner to exercise reasonable care to avoid. That is the scope of duty question. 64. Secondly, Mr Havers is correct that Adejuwon would not have been born but for the defendant’s mistake because Yip J accepted Ms Meadows’ evidence that, if she had been correctly advised, she would have had the foetus tested and would have terminated the pregnancy on discovering that Adejuwon carried the haemophilia gene. But that conclusion as to factual causation does not provide any answer to the question as to the scope of the defendant’s duty. 65. Thirdly, the foreseeability of the possibility of a boy being born with both haemophilia and an unrelated disability, such as autism, which is a risk in any pregnancy, is a relevant consideration when addressing the scope of the duty of care undertaken by a defendant. That is because the absence of foreseeability would militate against there being a duty of care in relation to such a risk. But the foreseeability of such unrelated disability is in no sense determinative of the question of the scope of the duty of care. That is because the scope of duty question depends principally upon the nature of the service which the defendant has undertaken to provide to the claimant. One asks: “what is the risk which the service which the defendant undertook was intended to address?” 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. Foreseeability is, of course, also relevant to the legal filters such as remoteness of damage, which arise once it has been established that the defendant’s duty of care extends beyond particular risks in the pregnancy. 66. Finally, Yip J asked herself whether it is fair, just and reasonable to impose liability in negligence for the totality of Adejuwon’s disabilities. But, as Nicola Davies LJ stated, this case does not concern a novel application of the law of negligence in which it is necessary for the court to address that question because established principles provide an answer: Robinson (above) para 27 per Lord Reed. Page 26 Application to the facts 67. First, the economic costs of caring for a disabled child are of a nature that is clearly actionable. Secondly, the scope of duty question is answered by addressing the purpose for which Ms Meadows obtained the service of the general medical practitioners. She approached the general practice surgery for a specific purpose. She wished to know if she was a carrier of the haemophilia gene. Mr Havers accepted as accurate Nicola Davies LJ’s statement of the purpose of the consultation in para 27(i) of her judgment in the Court of Appeal: “The purpose of the consultation was to put [Ms Meadows] in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene.” Dr Khan owed her a duty to take reasonable care to give accurate information or advice when advising her whether or not she was a carrier of that gene. In this context it matters not whether one describes her task as the provision of information or of advice. The important point is that the service was concerned with a specific risk, that is the risk of giving birth to a child with haemophilia. 68. Thirdly, Dr Khan was in breach of her duty of reasonable care, as she readily admitted. Fourthly, as a matter of factual causation, Ms Meadows lost the opportunity to terminate the pregnancy in which the child had both haemophilia and autism. There was thus a causal link between Dr Khan’s mistake and the birth of Adejuwon. But that is not relevant to the scope of Dr Khan’s duty. In this case, fifthly, the answer to the scope of duty question points to a straightforward answer to the duty nexus question: the law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy. It follows that Dr Khan is liable only for the costs associated with the care of Adejuwon insofar as they are caused by his haemophilia. One can also apply the SAAMCO counterfactual as an analytical tool by asking what the outcome would have been if Dr Khan’s advice had been correct and Ms Meadows had not been a carrier of the haemophilia gene. The undisputed answer is that Adejuwon would have been born with autism. Sixthly, given the purpose for which the service was undertaken by Dr Khan, and there being no questions of remoteness of loss, other effective cause or mitigation of loss, the law imposes upon her responsibility for the foreseeable consequences of the birth of a boy with haemophilia, and in particular the increased cost of caring for a child with haemophilia. Page 29 The claimant was correctly informed that the blood tests that she had undergone were normal. But that confirmed only that the claimant was not herself a haemophiliac. In order to determine if she was a carrier of haemophilia, which could be passed on to her children, she should have been referred to a haematologist for genetic testing. It was negligent of the defendant not to advise the claimant that she required referral for genetic testing and, therefore, to lead her to believe that the results of the blood tests showed that she was not a carrier of haemophilia. (iii) Factual causation is satisfied. The defendant admits that “but for” her negligence Adejuwon would not have been born because the claimant would have discovered during her pregnancy that he was afflicted by haemophilia and would, therefore, have undergone a termination of the pregnancy (see the judgment of Nicola Davies LJ in the Court of Appeal, [2019] EWCA Civ 152; [2019] 4 WLR 26, para 2). (iv) Applying the established case law on what have been termed “wrongful birth” cases and, in particular, Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266, as confirmed in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309, a claimant is entitled to the extra costs of bringing up a child that are attributable to the child’s “disability”. This has been classified in McFarlane v Tayside Health Board [2000] 2 AC 59 as the recovery of pure economic loss but it is hard to see that anything significant turns on that classification (as opposed to treating the loss as economic loss consequent on “personal injury”) because there is no doubt that a duty of care is owed by a doctor to his or her patient in relation to that type of loss. In line with that case law, it was accepted in this case that the claimant could recover for the extra cost of bringing up Adejuwon attributable to his haemophilia (the quantum of damages for these losses has been agreed at £1.4m). 74. It follows from these uncontroversial aspects of the law that the sole question at issue on this appeal is whether the claimant is entitled to recover the extra costs of bringing up Adejuwon that are attributable to his having autism in addition to haemophilia. I shall refer to these, slightly inaccurately, as the “autism losses”. The quantum of these has been agreed at £7.6m (ie £9m for the extra costs of both the haemophilia and the autism minus £1.4m for the haemophilia-only extra costs). 75. It is important to add three points. First, the risk of the child having autism was not increased by the child having haemophilia. The risk of autism was in that sense a general risk of pregnancy. Secondly, applying a conventional approach to “remoteness”, focusing on the reasonable foreseeability at the time of breach of the type of loss as a slight possibility (see, for example, Overseas Tankship (UK) Ltd v Page 30 Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388; Hughes v Lord Advocate [1963] AC 837; Overseas Tankship (UK) Ltd v Miller Steamship Co Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617) the birth of an autistic child was not too remote. This was because, as Nicola Davies LJ made clear at para 16 of her judgment, the appellant accepted that: “it was reasonably foreseeable that as a consequence of [the defendant’s] breach of duty the [claimant] could give birth to a child where the pregnancy would otherwise have been terminated … [and] any such child could suffer from a condition such as autism.” Thirdly, there was no suggestion by Simeon Maskrey QC, counsel for the defendant and respondent, that legal causation was not here satisfied ie it was not suggested that the chain of causation was here broken by an intervening event or action. 76. It follows from these uncontroversial aspects of the law, and from the additional three points in the last paragraph, that the question we need to address in this case is whether the autism losses are irrecoverable because of the application of the SAAMCO principle. 3. Application of the SAAMCO principle to the facts 77. In my view, in agreement with Lord Hodge and Lord Sales, the autism losses were outside the scope of the defendant’s duty of care and are therefore irrecoverable by reason of SAAMCO. I would express the reasons for this as follows: (i) The purpose of the advice or information is of central importance. The claimant had approached the general practice surgery, as the defendant knew or ought to have known, for the specific purpose of ascertaining whether or not she was a carrier of haemophilia and hence what the impact of that would be if she were to become pregnant. The purpose of the advice or information was not to ascertain the general risks of pregnancy, including the risk of autism. As Nicola Davies LJ expressed it in her judgment at para 27(i): “The purpose of the consultation was to put the [claimant] in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. Given the specific inquiry of the … mother, namely would any future child of hers carry the haemophilia gene, it would be Page 31 inappropriate and unnecessary for a doctor at such a consultation to volunteer to the person seeking specific information any information about other risks of pregnancy including the risk that the child might suffer from autism.” (ii) In the light of that purpose, it was fair and reasonable that the risk of the child being born with haemophilia should be allocated to the doctor; but that the risk of the child being born with autism should be allocated to the mother. In common with any mother considering pregnancy, as Nicola Davies LJ expressed it at para 27(ii), the claimant was taking upon herself “the risks of all other [ie non-haemophiliac-related] potential difficulties of the pregnancy and birth both as to herself and to her child.” (iii) Applying the SAAMCO counterfactual test as a cross-check, it supports a decision that the autism losses were outside the scope of the doctor’s duty of care. If we ask the question, would the claimant have suffered the same loss had the information/advice been true, the answer is “yes” as regards the autism losses (so that the scope of the duty of care does not extend to the recovery of the autism losses) but “no” as regards the haemophiliac losses (so that the scope of the duty of care does extend to the recovery of the haemophiliac losses). This is because had the information/advice that the claimant was not a carrier of haemophilia been correct, the claimant would still have given birth to an autistic child but would not have given birth to a child with haemophilia. Applying the counterfactual test therefore supports the view that the autism losses were outside the scope of the doctor’s duty of care. (iv) If one were to allow this appeal by deciding that the autism losses are recoverable, it is hard to see how one could deny that there would also be recovery of those losses even if the child had been born with autism but not with haemophilia. That would seem an even more startling result because the very risk that the mother was concerned about would not have eventuated at all. 4. The conceptual structure of the tort of negligence 78. With great respect to Lord Hodge and Lord Sales, I do not consider it necessary or helpful in this case, or in the case of Manchester Building Society v Grant Thornton UK LLP, to advocate what appears to me to be, in some respects, a novel approach to the tort of negligence as formulated in the six questions that Lord Hodge and Lord Sales suggest should be asked. For example, their approach does not appear to start with establishing a duty of care, sees the SAAMCO principle as Page 34 doctor recognises or ought to recognise poses a material risk to the patient. In this case, however, there is no finding that the defendant was or ought to have been aware of any fact which gave rise to a duty to advise the claimant about anything other than whether she was carrying a haemophilia gene. Accordingly, the duty owed by the defendant was limited to taking care to give the claimant accurate advice on that matter. 85. It is admitted that Dr Khan incorrectly and negligently advised Ms Meadows that she was not a carrier of a haemophilia gene, when in fact she was. As a result of this negligent advice, the claimant later conceived and gave birth to a son, Adejuwon, who suffers from haemophilia. Had appropriate tests been arranged and the claimant been told, as she should have been, that she was carrying a haemophilia gene, she would have undergone foetal testing during her pregnancy and would have terminated her pregnancy when she found out that she would otherwise give birth to a child with haemophilia. 86. It is not in dispute that the expense of caring for a child born with a disorder (such as haemophilia), if it results from negligent advice, is a kind of expense for which damages can in principle be claimed: see Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309. It is agreed that on this basis the defendant is liable to pay damages to the claimant to compensate her for the costs associated with her son’s haemophilia. The agreed amount of this compensation, if it stands alone, is £1.4m. 87. The dispute between the parties arises from the fact that, as well as being born with haemophilia, Adejuwon was born with autism. The issue is whether the claimant is entitled to recover compensation for the costs associated with his autism. It is agreed that, if she is, the award of damages of £9m made by the trial judge, but set aside by the Court of Appeal, should be restored. 88. It is common ground that, as Adejuwon would not have been born if the defendant had acted with due care, the costs of caring for an autistic child would not in that event have been incurred. It is also agreed that the possibility of giving birth to a child who suffers from a condition such as autism is a reasonably foreseeable risk of any pregnancy. It follows that the costs associated with that condition are a foreseeable consequence of the defendant’s negligent advice. 89. As established by the House of Lords in South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191 (“SAAMCO”), however, and reaffirmed on many occasions since - including by this court in Hughes-Holland v BPE Solicitors [2017] UKSC 21; [2018] AC 599, a professional person whose duty is Page 35 limited to advising on a particular subject matter relevant to a claimant’s decision- making is not responsible for all the foreseeable adverse consequences to the claimant of giving negligent and wrong advice, but only for such consequences as result from what made the advice wrong. This principle is generally expressed by saying that a professional adviser is only liable for losses which are “within the scope” of the adviser’s duty of care. In my judgment in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 (“MBS”), I have considered this principle and its rationale at some length. 90. The scope of duty principle is just as applicable to a medical practitioner as to anyone else who gives professional advice. As outlined at paras 85-89 of my judgment in MBS, the rationale underpinning the requirement to show a causal connection between the subject matter of the defendant’s advice and the claimant’s loss is that it is not fair and reasonable to impose on a professional adviser liability for adverse consequences which a person relying on the advice would have suffered even if the advice had been sound. To do so is to treat an adviser who is negligent in relation to a particular matter as if the adviser had a responsibility to protect the claimant against risks unrelated to that matter. No good reason has been given for treating doctors differently in that regard. 91. Applying the scope of duty principle to the facts of this case, whether or not she was carrying a haemophilia gene was plainly only one factor relevant to any choices made by the claimant about whether she wished to become pregnant and, if she did (by desire or not), whether to terminate the pregnancy. As with any decision whether to have a child, there were many other factors (personal, social, economic and medical) relevant or potentially relevant to those choices. The defendant had no duty to assess or advise the claimant about such other factors. It follows that the defendant is not responsible for all the foreseeable adverse consequences of any decision made in reliance on her negligent advice, but only for those which result from the matter which the defendant negligently misrepresented and which made the advice wrong - that is, the fact that the claimant was carrying a gene for haemophilia. 92. It is not in dispute that there was a causal link between the fact that the claimant has a gene for haemophilia and the fact that her son was born with that disorder. The costs associated with his haemophilia are therefore within the scope of the defendant’s duty. 93. The appeal turns on whether or not there was also a causal connection between the fact that the claimant was carrying a gene for haemophilia and the autism from which Adejuwon suffers. That question is answered conclusively by the parties’ agreement that the autism was not caused by his haemophilia nor made Page 36 more likely by it. It follows that the costs associated with his autism are not within the scope of the defendant’s duty of care. 94. In my judgment in MBS at paras 105-106, I have addressed the circumstances in which it may be useful to apply the counterfactual test stated by Lord Hoffmann in SAAMCO of asking whether the loss would have occurred even if the information or advice given by the defendant had been correct. I have also emphasised (at paras 128-129 of that judgment) that when such a test is applied the relevant question is not - as has sometimes mistakenly been supposed - whether, if the advice given by the defendant had been correct advice to give, the claimant would have acted differently. The question is whether, if the advice had been correct in the sense that the facts had been as the defendant represented them to be, the action taken by the claimant as a result of the defendant’s negligent advice would have caused the same injury. Lord Hodge and Lord Sales make the same point at para 53 of their judgment in this case. 95. In order to conclude that the costs associated with Adejuwon’s autism are causally unrelated to the subject matter of the defendant’s advice, there is no need to apply a counterfactual test; but equally there is no difficulty in doing so. It is plain that, even if the information that the claimant was not carrying a gene for haemophilia had been correct and all other circumstances remained the same, Adejuwon would still have been born with autism. That is one way of explaining why it is not fair and reasonable to impose on the defendant liability for the costs associated with his autism. 96. Much of the judgment of Lord Hodge and Lord Sales is taken up with a discussion of the conceptual structure of the whole tort of negligence. This excursus touches on questions much debated by legal scholars which go far beyond the issues raised by this appeal and the appeal in MBS. Like Lord Burrows, I think it undesirable as well as unnecessary to engage in such an exercise. In particular, these appeals are concerned solely with the liability of professional persons for giving negligent advice. Ascertaining the scope of the defendant’s duty in such cases depends on identifying the matters relevant to a decision to be taken by the claimant which the defendant has undertaken responsibility for assessing and advising the claimant about. The extent of those matters may be defined by express agreement or, in the absence of such an agreement, is implied from the role of a doctor or other professional person as that role is conventionally understood (or in the case of an auditor prescribed by statute) and by the objective purpose of the advice (which, as discussed at para 160 of my judgment in MBS, is not necessarily coextensive with the purposes for which the claimant intends to rely on the advice). Whether or to what extent analogous considerations apply in other contexts, such as careless driving or the negligent performance of a surgical operation to take two examples mentioned in para 47 of the judgment of Lord Hodge and Lord Sales, is not a