It is difficult to laud the attempts of the judges to use these cases as opportunities to write textbooks. 

I wonder if a key factual distinction in all these cases is whether the conduct engaged in by the claimant that resulted in the loss would have been engaged in regardless of the negligence? 

In MBS, no hedging would have been entered into if the advice had not been negligent.  It is therefore easier to say, as Jane has long suggested, that this was the ‘very risk’ that the accountant was meant to guard against (as with the lightning rod installer). 

In Khan, there was no evidence to suggest that the woman was not planning on having any more children.  It was just that she would have aborted this particular child.  The risk of the woman having a child with autism did not change therefore as a result of the negligence (as Burrows notes – “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.”).  In contrast, the mountaineer would NOT have gone up the mountain and the women in Parkinson and Groom would NOT have had any more children given that the negligence occurred in the context of a sterilisation procedure.  Factually, these cases can be distinguished. 

In terms of a SAAMCO type case, it would appear that whether or not the lender would have entered into other loans (in place of the particular loan tainted by the negligent valuation) might be a relevant consideration. 

I’m not sure whether a ‘scope of duty’ or an ‘assumption of responsibility’ analysis highlights this factual distinction or explains why it might be significant. 

Cheers

Christine