Blood disorders – Causation – Duty of care – Genetic testing

(1) Hanan Basem Farraj (2) Basem Farraj (claimants/first respondents) v (1) King’s Healthcare NHS Trust (KCH) (first defendant/part 20 claimant/appellant) (2) Cytogenetic DNA Services Ltd (CSL) (second defendant/part 20 defendant/second respondent): CA (Civ Div) (Lords Justice Sedley, Dyson, Lady Justice Smith): 13 November 2009

The appellant NHS trust appealed against a decision that it was liable in a wrongful birth case and the respondent parents (P) cross-appealed.

P were carriers of a gene which could cause an inherited blood ­disorder. When the wife was pregnant she was advised to undergo DNA testing to detect whether the child would suffer from the disorder. A chorionic villus sample was taken and sent to the trust’s London hospital. From there it was sent to an independent specialist cytogenetics laboratory (C) for foetal cells to be cultured. That was done and the sample returned to the hospital for testing. The test was ­negative. However, when the baby was born it was found to have the disorder. P sued the trust and C.

The judge held both defendants liable. C was liable because it had had doubts about the viability of the sample but had not communicated them to the hospital. That failure of communication was negligent. The trust was also liable because the hospital ought to have enquired of C whether the sample was a reliable source of material for genetic testing. If the hospital had so enquired it would have learned of C’s doubts and then asked for a further sample. The judge held C two-thirds liable and the trust one-third liable. The trust appealed on liability, causation and apportionment, and P cross-appealed on the ground that even if the trust was not negligent it was liable for the negligence of C because the trust’s duty was non-delegable.

Held: (1) The judge had erred. The only conclusion open to him on the evidence was that the hospital and C had a clearly understood arrangement by which the hospital was entitled to assume that the sample was satisfactory unless C informed it to the contrary. Therefore the hospital and trust had not been negligent.

(2) The holding of liability was also flawed because the judge failed to make a reasoned finding to support the conclusion that, if the hospital had enquired of C, C’s doubts about the sample would have been communicated. There was evidence that, if an enquiry had been made, C would have replied that it would let the hospital know if there was a problem with the sample.

(3) In view of the conclusion that the trust was not liable, the issue of apportionment fell away. C was liable for 100% of the damages and P’s costs of the action.

(4) The general rule was that where a person under a duty of care entrusted the performance of the duty to an apparently competent contractor he was not under a duty to check the contractor’s work, being entitled to rely on its proper performance, D&F Estates Ltd v Church Commissioners for England [1989] AC 177 HL followed. The general rule did not apply in relation to the duty of care owed by an employer to his employees, which had been held to be non-delegable, Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 HL considered. Assuming, without deciding, that the concept of a non-delegable duty extended to hospital cases, that did not justify the conclusion that, on the facts of the instant case, the hospital owed a non-delegable duty to P in respect of genetic testing, Gold v Essex CC [1942] 2 KB 293 CA, Cassidy v Ministry of Health [1951] 2 KB 343 CA, Robertson v Nottingham HA [1997] 8 Med LR 1 CA (Civ Div) and A (a child) v Ministry of Defence [2004] EWCA Civ 641, [2005] QB 183 considered. There was a significant difference between treating a patient who was admitted to hospital for that purpose and carrying out tests on samples. The special duty that existed between a patient and a hospital arose because the hospital undertook the care, supervision and control of persons who, as patients, were in special need of care. P were not admitted to the hospital for treatment. The instant case concerned the provision of analytical and diagnostic laboratory services. There was no need to depart from the general rule and find that any special duty was owed.

Appeal allowed, cross-appeal ­dismissed.

Harry Trusted (instructed by Bolt Burdon Kemp) for the claimants; Martin Spencer QC, Jane Mishcon (instructed by Hempsons) for the first defendant; Andrew Prynne QC (instructed by CMS Cameron McKenna) for the second defendant.