This is an appeal from judgment… J determined that the costs related to the autism of FGN, the respondent’s son, following his birth may be properly recovered by her and assessed damages in the agreed sum of £9,000,000. FGN suffers from both haemophilia and autism. A admits that but for her negligence FGN would not have been born because his mother would have discovered during her pregnancy that he was afflicted by haemophilia and so would have undergone a termination of the pregnancy. It is accepted by A that R is entitled to recover the additional costs associated with the condition of haemophilia. The issue at trial and on appeal is whether, as a matter of law, the appellant’s liability is limited to additional losses associated with FGN’s haemophilia or whether she is liable for the additional losses associated with both his haemophilia and autism. [1]
In January 2006, the claimant’s nephew was born and was subsequently diagnosed as having haemophilia… R claimant wished to avoid having a child with that condition and so consulted a general practitioner… in August 2006 with a view to establishing whether she was a carrier of the haemophilia gene… Blood tests were arranged. However, such tests were those to establish whether a patient had haemophilia and could not confirm whether or not the claimant was a carrier. In order to obtain that information, the claimant would have had to be referred to a haematologist for genetic testing… On 25 August 2006, R saw A, another general practitioner at the same practice, to obtain and discuss the results of the blood tests… R was told that the results were normal. As a result of the advice she received at that consultation and the previous consultation, she was led to believe that any child she had would not have haemophilia…In … 2010, R became pregnant with [FGN]. Shortly after his birth … he was diagnosed as having haemophilia… R was referred for genetic testing which confirmed that she was indeed a carrier of the gene for haemophilia… Had C been referred for genetic testing in 2006, she would have known she was a carrier before she became pregnant. In those circumstances, she would have undergone foetal testing for haemophilia… Such testing would have revealed that the foetus was affected. In such circumstances, R would have chosen to terminate her pregnancy and [FGN] would not have been born. [3]
It is insufficient for the court to find that there is a link between the breach and the stage in the chain of causation, in this case the pregnancy itself, and thereafter to conclude that A is liable for all the reasonably foreseeable consequences of that pregnancy. In finding that R was deprived of the opportunity to terminate the pregnancy what the judge is in fact referring to is one of the links in the chain of causation whereas following SAAMCO the link must be between the scope of the duty and the damage sustained. [28]
…the development of autism was a coincidental injury and not one within the scope of the appellant’s duty. [30]
…appeal is allowed. [31]
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