ACB v Thomson Medical Pte Ltd and others

JudgeSundaresh Menon CJ
Judgment Date22 March 2017
Neutral Citation[2017] SGCA 20
Date22 March 2017
Docket NumberCivil Appeal No 17 of 2015
Published date12 April 2017
Plaintiff CounselN Sreenivasan SC, Palaniappan S, Derek Ow (Straits Law Practice LLC)
Defendant CounselLok Vi Ming SC, Audrey Chiang, Calvin Lim, Evans Ng, Nerissa Tan and Carren Thung (Dentons Rodyk & Davidson LLP),Assoc Prof Goh Yihan (School of Law, Singapore Management University) as amicus curiae.
CourtCourt of Appeal (Singapore)
Hearing Date06 October 2016,19 August 2015
Subject MatterTort,Punitive damages,Damages,Negligence
Andrew Phang Boon Leong JA (delivering the judgment of the court):





The decision below


The structure of this judgment


Two preliminary objections


Summary of our conclusions


The upkeep claim


The landscape of reproductive wrongs


Three categories of reproductive wrongs: wrongful life, wrongful birth, wrongful conception


Wrongful fertilisation


“The [Appellant] wanted a second child all along”


The concept of actionable damage


Actionable damage in the tort of negligence


Actionable damage in an action for breach of contract


The foreign authorities


The UK


McFarlane: healthy parents and healthy child


Parkinson: healthy parents and disabled child


Rees: disabled mother and healthy child




Some interim conclusions on the foreign authorities




The obligations of parenthood


Inconsistency with the nature of the parent-child relationship


Conclusion on upkeep costs


Loss of autonomy


The development of an award for loss of autonomy


Arguments against the recognition of loss of autonomy as an actionable injury in its own right


The conceptual objection


The coherence objection


The over-inclusiveness objection


The “real loss”: genetic affinity


Quantification of damages


The “conventional award” in Rees


Award for necessary expenses to avoid or cope with restrictions on autonomy


Conventional sum for non-pecuniary loss


The issue of punitive damages


The decision in Rookes


The position in the UK


The position in the Commonwealth


The position in Singapore


Developing a coherent framework


The relevance of criminal punishment


Punitive damages for inadvertent conduct


Bottrill and Couch


The principle of the matter


Can punitive damages be awarded here?





In this appeal, we are concerned with the proper limits of civil liability. As Griffiths LJ (as he then was) aptly observed, “[e]very system of law must set some bounds to the consequences for which a wrongdoer must make reparation … In any state of society it is ultimately a question of policy to decide the limits of liability” (see the English Court of Appeal decision of McLoughlin v O’Brian and others [1981] 2 WLR 1014 at 1036G–H, reversed in McLoughlin v O’Brian and others [1983] 1 AC 410 (“McLoughlin (HL)”), although not on this particular point). The law sets these limits not only because of concerns over the adverse effects that the imposition of liability might have on the legal system or on public welfare more generally but also, more positively, for reasons of “public benefit and convenience” (see the decision of the Court of the King’s Bench in Lawton v Lawton (1743) 3 Atk 13 at 16 per Lord Hardwicke LC). These boundaries are set in various ways. The different means employed include the doctrines of causation, remoteness, and – most pertinently in this case – through the refusal to recognise particular types of damages as heads of recoverable loss.

Of course, the converse is possible and the law may expand, rather than limit, the boundaries of liability. This is true both of tort and of contract. The tort of negligence emerged in its modern form as a cause of action for physical injury directly caused by the positive act of a negligent stranger. However, it expanded to embrace, in the classic House of Lords decision of M’Alister (Or Donoghue) (Pauper) v Stevenson [1932] AC 562 (“Donoghue v Stevenson”), injury caused by the negligent manufacture of goods. Since then it has grown to include other forms of injury such as pure economic loss arising from a negligent misstatement (see, in particular, the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465) as well as psychiatric harm arising from a recognised psychiatric illness (see, in particular, the House of Lords decision in McLoughlin (HL)). Likewise, the law of contract has expanded beyond the realm of commerce to afford recovery not only for lost economic value, but also for the loss of amenity arising from frustrated contractual expectations (see, for example, the more recent House of Lords decision of Ruxley Electronics and Construction Ltd v Forsyth and another appeal [1996] AC 344). The list of legally cognisable injuries has evolved with time because the world has changed, and the law must, as Lord Macmillan said in Donoghue v Stevenson, “adapt itself to the changing circumstances of life” (at 619). This is perhaps clearest in the area of medical science, where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm. The facts of this appeal throw this into sharp relief.

The Appellant and her husband sought to conceive a child through in-vitro fertilisation (“IVF”). The Appellant underwent IVF treatment and delivered a daughter, whom we shall refer to as “Baby P”. After the birth of Baby P, it was discovered that a terrible mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown third party instead of sperm from the Appellant’s husband. The Appellant sued the Respondents in the tort of negligence and for breach for contract and sought damages for, among other things, the expenses she would incur in raising Baby P (“upkeep costs”). The Respondents conceded liability but argued that the Appellant should not be allowed to recover upkeep costs. They argued that the child is a blessing, and that there was something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation. The High Court Judge (“the Judge”) agreed. In the penultimate paragraph of his judgment he added, “[w]ere the [Appellant] to succeed in her upkeep claim, whether in tort or in contract every cent spent in the upbringing of Baby P will remind her that it was money from compensation for a mistake. Baby P should not ever have to grow up thinking that her very existence was a mistake” (see ACB v Thomson Medical Pte Ltd and others [2015] 2 SLR 218 at [16] (“the Judgment”)).

We now stand at the crossroads. The question which was presented to us for determination was whether the Appellant was entitled to bring a claim for upkeep costs. The horns of the dilemma would appear to be these. On the one hand, if we refuse the award of upkeep costs, the Appellant would receive a comparatively modest award for (in the main) pain and suffering. This would appear to undercompensate the Appellant for the wrong which has been done to her – after all, the only reason why she elected to conceive via IVF was because she desired a child with her husband, but, because of the Respondents’ mistake, she finds herself the mother of a child fathered by a complete stranger. On the other hand, the award of upkeep costs, it was argued, denigrates the worth of Baby P because it necessarily entails viewing her existence as a continuing source of loss to the Appellant, such that every dollar spent on raising her from the day of her birth until she reaches the age of majority sounds in damages.

There can be no doubt that this is a “hard case” (in both the colloquial and jurisprudential senses of the word) but if anything this calls for greater analytical clarity and rigour in order to avoid the reproach that hard cases make bad law (see the House of Lords decision of Fairchild v Glenhaven Funeral Services Ltd and others [2002] 3 WLR 89 at [36], per Lord Nicholls of Birkenhead). Before we turn to the substance of our decision, however, we pause to emphasise a general point of the first importance. Nothing we say in this judgment should – or, indeed (as will be evident from the analysis that follows), could − be taken as a reflection of this court’s view of...

To continue reading

Request your trial
21 cases
  • Ukm v Ag
    • Singapore
    • High Court (Singapore)
    • 17 December 2018 [249].] Case(s) referred to A, Re [1963] 1 WLR 231 (refd) A and B, Re (2000) 26 Fam LR 317 (refd) ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (refd) Adoption Application, Re [1987] Fam 81 (refd) AG v Ting Choon Meng [2017] 1 SLR 373 (refd) AG for the Province of British Columbia v AG ......
  • Wong Kok Leong v Foo Chu Jong and Another
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2023
  • Lee Hsien Loong v Leong Sze Hian
    • Singapore
    • High Court (Singapore)
    • 24 March 2021
    ...Chambers LLC) for the plaintiff; Lim Tean (Carson Law Chambers) for the defendant. Case(s) referred to ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (folld) Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86; [2001] 1 SLR 505 (folld) Bailey v Bottrill (No 2) [2019] ACTSC 167 (refd) Ba......
  • Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 29 November 2021
    ...conduct is so outrageous that it warrants punishment, deterrence, and condemnation” [emphasis added] (see the decision of this court in ACB v Thomson Medical Pte Ltd and others [2017] 1 SLR 918 (“ACB”) at [156] and [176]). On the other hand, aggravated damages are distinct from punitive dam......
  • Request a trial to view additional results
1 firm's commentaries
12 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2022, March 2022
    • 1 March 2022
    ...desirable. Autonomy itself is a “slippery concept” and may relate to an atomistic or relational person: ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 at [116]–[118]. See Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (Clarendon Press, 1990).......
    • Singapore
    • Singapore Academy of Law Journal No. 2019, December 2019
    • 1 December 2019
    ...1 SLR 214; BOM v BOK [2019] 1 SLR 349. 30 Goh Lay Khim v Isabel Redrup Agency Pte Ltd [2017] 1 SLR 546; ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918; Hii Chii Kok v Ooi Peng Jin London Lucien [2017] 2 SLR 492; Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074; Lee Tat Development Pte ......
    • Singapore
    • Singapore Academy of Law Journal No. 2019, December 2019
    • 1 December 2019
    ...century later, the Singapore Court of Appeal adopted the same approach as the High Court of Australia: see ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918. 21 [1980] AC 546. 22 See, for example, Andrew Phang, “‘Overseas Fetters’: Myth or Reality?” [1983] 2 MLJ cxxxix at cxlvii-cxlix; Peter W......
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2017, December 2017
    • 1 December 2017
    ...gen ed) (Academy Publishing, 2012) at paras 21.051–21.053. 125 Tembusu Growth Fund Ltd v ACTAtek, Inc [2017] SGHC 251 at [152]. 126 [2017] 1 SLR 918. 127 ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 at [154]; but see discussion on PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong)......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT