Scope of a doctor’s duty to advise

ABSTRACT

In Khan v Meadows [2021] UKSC 21, the United Kingdom Supreme Court had the opportunity to consider whether the principle laid down in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 applied in the context of medical negligence. While the Court unanimously agreed that the SAAMCO principle applied in the context of medical negligence, they parted ways as to how the SAAMCO principle, or ‘scope of duty’ principle, fitted into the analytical structure of the tort of negligence. This note argues that the approach taken by Lord Hodge and Lord Sales conflates the scope of duty analysis with that for ascertaining the existence of a duty of care.

KEYWORDS:

• Negligence
• medical law
• duty of care
• causation

Acknowledgements

The author would like to thank the anonymous reviewer and Professor Gary Chan for their helpful comments on earlier drafts.

Disclosure statement

No potential conflict of interest was reported by the author.

Disclaimer

All views expressed are the author’s personal views and do not reflect those of the author’s employers.

Notes

1 South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 (United Kingdom House of Lords (UKHL)).

2 Andrews v Barnett Waddingham (A Firm) [2006] EWCA Civ 93 (Court of Appeal of England and Wales (EWCA)); Lloyds Bank Plc v Crosse & Crosse [2001] EWCA Civ 366 (EWCA).

3 Jeffrey Thomson, ‘SAAMCO Revisited’ (2017) 76 Cambridge Law Journal 476, 479.

4 [2021] UKSC 21 (United Kingdom Supreme Court (UKSC)).

5 [2021] UKSC 20 (UKSC).

6 Khan (n 4) [67].

7 ibid [67]–[68] (Lord Hodge and Lord Sales), [77(i)] (Lord Burrows), [98] (Lord Leggatt).

8 Khan (n 4) [53].

9 ibid [68] (Lord Hodge and Lord Sales), [77(iii)–(iv)] (Lord Burrows).

10 ibid [28].

11 ibid [36].

12 ibid [38].

13 ibid.

14 ibid [78], [96].

15 ibid [78].

16 ibid [80]–[81].

17 ibid [96].

18 Pinchas Huberman, ‘Tort Law, Corrective Justice and the Problem of Autonomous Machine Caused Harm’ (2021) 34 Canadian Journal of Law and Jurisprudence 105, 114. Cf James Plunkett, The Duty of Care in Negligence (Hart Publishing 2018) 104–107, where he observes that the factual duty concept has entered United Kingdom jurisprudence and continues to remain, and 109, where he suggests jettisoning this requirement.

19 John Oberdiek, ‘The Wrong in Negligence’ (2021) 41 Oxford Journal of Legal Studies 1, 10. Oberdiek challenges the view that the wrong in negligence is constituted by the completed tort of negligence, arguing instead that the wrong in negligence lies in the breach of the duty of care.

20 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (UKSC) [27].

21 Some heads of damages are not. See Williams v State of New York 18 NY 2d 481 (1966) (New York Court of Appeal). In that case, the plaintiff had been born out of wedlock because her mother, a patient at a mental hospital, had been raped by another patient. She subsequently sued the state claiming damages for wrongful birth. Keating J refused to award damages, reasoning that doing so would entail a ‘determination as to whether nonexistence or nonlife is preferable to life as an illegitimate with all the hardship attendant thereon’. See also ACB v Thomson Medical Pte Ltd [2017] SCGA 20 where the Singapore Court of Appeal created a new head of damages called ‘genetic affinity’.

22 [2006] UKHL 22 (UKHL).

23 [2015] UKPC 28 (Privy Council (PC)).

24 [1973] QB 27 (EWCA).

25 [1990] 2 AC 605 (UKHL).

26 Manchester Building Society (n 5) [8].

27 Michael A Jones, Anthony M Dugdale, and Mark Simpson (eds), Clerk and Lindselll on Tort (23rd edn, Sweet & Maxwell 2020) 432–434 [7-17], 534–535 [7-153].

28 Stelios Tofaris, ‘Duty of Care in Negligence: A Return to Orthodoxy?’ (2018) 77 Cambridge Law Journal 454, 455.

29 Kenny Chng, Gary Chan and Goh Yihan, ‘A Novel Development of Tort Law: Robinson v Chief Constable of West Yorkshire Police’ (2019) 25 Torts Law Journal 184, 186.

30 Jones, Dugdale, and Simpson (n 29) 435 [7-20].

31 Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] SGCA 37 (Singapore Court of Appeal (SGCA)) [75]–[82].

32 Khan (n 4) [24]. See also: (i) Lord Denning’s remarks in Roe v Minister of Health [1954] 2 QB 66 (EWCA) [86]; (ii) Jane Stapleton, ‘Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences’ (2001) 54 Vanderbilt Law Review 941, 988, where she argues that the incidence of an obligation and the scope of liability for consequences of tortious conduct are often conflated because of the common requirement of foreseeability; and (iii) Stapleton (n 34) 991, where she points out that it is incoherent to say that the duty is only owed with respect to one risk—we should not partition duty according to risks so that a defendant is under a duty with respect to one risk and not another. Plunkett suggests a possible solution: that the duty of care should be understood as a ‘notional’ duty rather than a ‘factual’ duty where the latter focusses on the foreseeability of harm to the plaintiff. See Plunkett (n 20) 79–173.

33 Huberman (n 17) 114.

34 Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781, 156 ER 1047 (Court of Exchequer); Mullins v Richards [1998] 1 WLR 1304 (EWCA).

35 Khan (n 4) [12].

36 James Goudkamp, ‘Breach of Duty: A Disappearing Element in the Action of Negligence?’ [2017] Cambridge Law Journal 481, 482.

37 Go Dante Yap v Bank Austria Creditanstalt AG [2011] SGCA 39 (SGCA) [19].

38 Montgomery v Lanarkshire Health Board [2015] UKSC 11 (UKSC) [87].

39 Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38 (SGCA) [132].

40 Montgomery (n 41) [75]–[81]; ibid [118]–[119].

41 Not all doctors, however, keep detailed case notes. See for example Eu Kong Weng v SMC [2011] SGHC 68 (Singapore High Court). The doctor was charged by the Disciplinary Committee for failing to obtain the patient’s informed consent—his case notes did not record a discussion of treatment options.

42 See Thomson (n 3) where Thomson suggests that Chester v Afshar [2004] UKHL 41 (UKHL) could have been approached by analogy with SAAMCO.

Additional information

Notes on contributors

Kian Peng Soh

The author is a graduate of the Yong Pung How School of Law, Singapore Management University.