ACB v Thomson Medical Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 22 March 2017
• Neutral Citation: [2017] SGCA 20
• Date: 22 March 2017
• Docket Number: Civil Appeal No 17 of 2015
• Published date: 12 April 2017
• Plaintiff Counsel: N Sreenivasan SC, Palaniappan S, Derek Ow (Straits Law Practice LLC)
• Defendant Counsel: Lok 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.
• Court: Court of Appeal (Singapore)
• Hearing Date: 06 October 2016,19 August 2015
• Subject Matter: Tort,Punitive damages,Damages,Negligence

Andrew Phang Boon Leong JA (delivering the judgment of the court):

TABLE OF CONTENTS
Introduction	[1]–[5]
Background	[6]–[13]
The decision below	[14]–[16]
The structure of this judgment	[17]–[18]
Two preliminary objections	[19]–[23]
Summary of our conclusions	[24]
The upkeep claim	[25]–[105]
	The landscape of reproductive wrongs	[27]–[43]
		Three categories of reproductive wrongs: wrongful life, wrongful birth, wrongful conception	[28]–[31]
		Wrongful fertilisation	[32]–[34]
		“The [Appellant] wanted a second child all along”	[35]–[43]
	The concept of actionable damage	[44]–[54]
		Actionable damage in the tort of negligence	[47]–[51]
		Actionable damage in an action for breach of contract	[52]–[54]
	The foreign authorities	[55]–[85]
		The UK	[58]–[73]
			McFarlane: healthy parents and healthy child	[61]–[67]
			Parkinson: healthy parents and disabled child	[68]–[70]
			Rees: disabled mother and healthy child	[71]–[73]
		Australia	[74]–[80]
		Some interim conclusions on the foreign authorities	[81]–[85]
	Analysis	[86]–[100]
		The obligations of parenthood	[87]–[94]
		Inconsistency with the nature of the parent-child relationship	[95]–[100]
	Conclusion on upkeep costs	[101]–[105]
Loss of autonomy	[106]–[152]
	The development of an award for loss of autonomy	[109]–[114]
	Arguments against the recognition of loss of autonomy as an actionable injury in its own right	[115]–[124]
		The conceptual objection	[116]–[119]
		The coherence objection	[120]–[122]
		The over-inclusiveness objection	[123]–[124]
	The “real loss”: genetic affinity	[125]–[136]
	Quantification of damages	[137]–[152]
		The “conventional award” in Rees	[139]–[142]
		Award for necessary expenses to avoid or cope with restrictions on autonomy	[143]–[144]
		Conventional sum for non-pecuniary loss	[145]–[152]
The issue of punitive damages	[153]–[209]
	The decision in Rookes	[155]–[175]
		The position in the UK	[157]–[161]
		The position in the Commonwealth	[162]–[169]
		The position in Singapore	[170]–[175]
	Developing a coherent framework	[176]–[206]
		The relevance of criminal punishment	[178]–[188]
		Punitive damages for inadvertent conduct	[189]–[206]
			Bottrill and Couch	[190]–[198]
			The principle of the matter	[199]–[206]
	Can punitive damages be awarded here?	[207]–[209]
Conclusion	[210]–[212]

Introduction

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...