ACB v Thomson Medical Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 25 February 2014
• Date: 25 February 2014
• Docket Number: Suit No 467 of 2012 (Registrar's Appeal No 327 of 2013)
• Court: High Court (Singapore)

ACB

Plaintiff

and

Thomson Medical Pte Ltd and others

Defendant

[2014] SGHC 36

Choo Han Teck J

Suit No 467 of 2012 (Registrar's Appeal No 327 of 2013)

High Court

Contract—Remedies—Remoteness of damage—Whether parent could claim for upkeep of child after in-vitro fertilisation mix-up—Damages—Pure economic loss

Damages—Remoteness

Tort—Negligence—Remedies—Remoteness of damage—Whether parent could claim for upkeep of child after in-vitro fertilisation mix-up

The plaintiff was ACB. Together with her husband, she approached the defendants to undergo in-vitro fertilisation, seeking to conceive. During the process, a mix-up had occurred. Instead of using the husband's sperm, the defendants had used the sperm of an unknown male. The plaintiff gave birth to a healthy baby, and only after birth was she informed of the mix-up. She and her husband chose to keep the baby. She subsequently sued the defendants seeking, inter alia, expenses that may reasonably be incurred in bringing up the baby (‘Upkeep’). The defendants applied to strike out her application for Upkeep, and succeeded before the assistant registrar. The plaintiff appealed against the decision of the assistant registrar.

Held, allowing the appeal:

(1) It was inappropriate that an application to strike out was brought in a case such as this, where the claims as to reasonableness of damages were challenged on law: at [13] .

(2) The matter had to be heard at trial so that all the loose ends in fact and law might be heard and adjudicated: at [15] .

[Observation: The present case could not be characterised simply as an ‘unwanted birth case’ in the vein of Mc Farlane v Tayside Health Board[2000] 2 AC 59 and Cattanach v Melchior(2003) 215 CLR 1 as the plaintiff in this case had wanted a baby all along, albeit one conceived of her husband's sperm: at [6] .

This distinction was relevant when considering the extent of the defendants' liability in tort, in particular, whether the Upkeep of the baby constituted damage that flowed from a breach of their duty. Concerns of remoteness aside, the claim for Upkeep, rightly characterised as one for purely economic loss, could not be recovered. Although the Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency[2007] 4 SLR (R) 100 declined to adhere to an absolute rule restricting claims for purely economic loss to cases of negligent misstatements, damages for purely economic loss had so far been awarded in cases where the loss was related to the economic value of land: at [11] and [12] .]

Anns v Merton London Borough Council [1978] AC 728 (refd)

Cattanach v Melchior (2003) 215 CLR 1 (refd)

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (refd)

M'Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (refd)

Mc Farlane v Tayside Health Board [2000] 2 AC 59 (refd)

Murphy v Brentwood District Council [1991] 1 AC 398 (refd)

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR (R) 100; [2007] 4 SLR 100 (folld)

Women's Charter (Cap 353, 2009 Rev Ed) s 70 (1)

N Sreenivasan SC and Palaniappan Sundararaj (Straits Law Practice LLC) for theplaintiff

Lok Vi Ming SC, Audrey Chiang Ju Hua and Calvin Lim (Rodyk & Davidson LLP) for the defendants.

Judgment Reserved.

Choo Han Teck J

1 The plaintiff is a Chinese woman married to a German of Caucasian descent. They have a son conceived in 2006 through an assisted fertilisation procedure commonly known as ‘in-vitro fertilisation’ or ‘IVF’ for short. In October 2010 the plaintiff delivered a daughter (named ‘Baby P’ in this action) also conceived through IVF. When the IVF procedure was carried out in respect of Baby P, a mistake was made and the plaintiff's egg was fertilised with the sperm of a third party male (‘the Donor’) instead of the sperm of the plaintiff's husband. The plaintiff sued the defendants in the tort of negligence and breach of contract.

2 The first defendant is the company that owned the second defendant, which was the medical centre in which the IVF procedure was carried out on the plaintiff. The third defendant was the embryologist who was responsible for the collection and storage of the bottle containing the plaintiff's husband's sperms. The fourth defendant was the Chief Embryologist at the third defendant. The parties applied to have a question of law to be determined. The question raised two items of claim. The first (referred to in the proceedings here and below as ‘the Upkeep Claim’) was the issue of whether the plaintiff was entitled to the expenses incurred that may reasonably be incurred in bringing up Baby P. The second (‘the Provisional Damages claim’) concerned the claim for provisional damages, by which the plaintiff...