Nov 23, 2018
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Scope of the duty – Avoiding the avalanche

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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 “SAAMCO” South 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.



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