ACB v Thomson Medical Pte Ltd and others

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 sought to make the defendants liable to pay for damages (until Baby P reaches 35 years of age) arising from any genetic condition or disease that might be attributable to the genes of the unknown male sperm donor. The defendants applied to strike out these two claims from the action. The learned Assistant Registrar David Lee (“AR Lee”) agreed with the defendants’ counsel’s submission that these claims were contrary to public policy, and thus ruled against the plaintiff in both issues in the question of law. These portions of the claims were struck out from the action. The plaintiff appealed only against the order regarding the Upkeep Claim in this appeal before me.

[4] Mr Sreenivasan’s arguments were based on the fact that the mistake was not discovered until after Baby P was born. He submitted that, had the mistake been discovered sufficiently early, the plaintiff could have terminated the pregnancy, but once that opportunity had passed, the defendants must contemplate that someone would have been obliged to bring up the baby. Although counsel accepted that the law obliges the parents to bring up the child, he referred to s 70(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) as a basis for imposing financial obligations on the defendants. I should deal with this point first as it is not relevant. Section 70(1) allows persons who have accepted a child into their family to seek a court order compelling the child’s father or mother to pay for the child’s upkeep. The person who might be liable under s 70(1) in this case can only have been the Donor, but I doubt that the Donor would have been ordered by any court to pay for Baby P’s upkeep, given the circumstances of this case.

[5] The contest of legal authorities in the court below and on appeal before me was the differing views between McFarlane and Cattanach. McFarlane was a four-to-one decision from the House of Lords. Cattanach was a four-to-three decision in the High Court of Australia. Both cases concerned claims for the expenses of bringing up a child conceived after the mother was negligently advised that the sterilisation procedure was complete and no contraception was required. These were referred to as “unwanted birth cases”. The majority in McFarlane was not in favour of allowing such claims, whereas the majority in Cattanach formed the opposite view.

[6] The crucial difference between those cases and the present appeal before me is that in the present case, Baby P was not an unwanted birth in the sense that the plaintiff mother did not want to have a baby at all. The plaintiff just wanted a baby conceived with her husband’s sperm. This is an important distinction for the reasons that follow.

[7] The House of Lords gave various reasons for disallowing the claim for upkeep. Lord Steyn expressed the majority view when he held in McFarlane at 83:

None of the Law Lords who referred to distributive justice explained which idea or principle from that vast ocean of philosophy they had found relevant. Distributive justice is a philosophical subject that leaves philosophers with much to say about one another’s vision of what constitutes distributive justice. Distributive justice is also primarily concerned with the distribution of wealth across society. Volumes have been written about the egalitarian nature of distributive justice as well as implications of liberty. Resort to distributive justice is, therefore, generally not appropriate when one is discussing the specific entitlements of an individual in law. Hence, Kirby J, in Cattanach, might hence have been perplexed by the references to this subject in McFarlane. He thought that the Law Lords called distributive justice in aid because the defendant there was the national health authority. We may not know for certain, but in my view, any discussion of distributive justice in this case would not be appropriate because there is no direct principle in distributive justice that might be appropriate in the present case.

[8] Kirby J distinguished McFarlane, in Cattanach at [178], as follows:

The factual background in the case before me is similar to Cattanach in that we are not here concerned with a public health authority. In any event, the House of Lords in McFarlane was not inclined to rely on public policy to found liability either. The majority Law Lords thought of public policy as “quicksand” and emphatically avoided it as a basis for their decision in that case. If public policy is a quicksand, philosophies of distributive justice are sinkholes. Nonetheless, in spite of such noble protests, courts have to adjudicate, from time to time, difficult cases in which they have little else apart from policy considerations to rely on. Hence, the Court of Appeal recognises that policy considerations can be relevant (see Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 at [83]–[85]).

[9] Sometimes, a court applies the convenient label of public policy without articulating what the policy was; conversely, it may, at other times, avoid public policy considerations altogether. But it is probably true that in many cases, such as unwanted birth cases involving matters of rights and legal standing, legislative intervention is required. Courts in the UK and Australia have refused to allow claims by children for their upkeep in wrongful birth cases. The reasoning behind this refusal is articulated by Lord Steyn in, McFarlane at 83, who cited with approval the following quote from The Law of Torts in Australia:

[11] Lord Steyn held in McFarlane, at 79, that with Murphy v Brentwood District Council [1991] 1 AC 398 (“Murphy”), the common law had sounded a full retreat from Anns v Merton London Borough Council [1978] AC 728, the case that allowed claims for purely economic loss to sneak into the law of torts. The Court of Appeal in Singapore declined to accept Murphy as an absolute rule restricting claims for purely economic loss to cases of negligent misstatements in the vein of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (“Hedley Byrne”) (see Spandeck at [68]–[72]). The emphasis in Spandeck, so far as purely economic loss is concerned, was on how the loss occurred and not what kind of loss it was. The claim in Spandeck itself was dismissed at first instance and on appeal. Outside of Hedley Byrne, the courts have been reluctant to award damages for purely economic loss. The Court of Appeal in Spandeck noted, at [69], that damages for purely economic loss have so far been awarded in cases where the loss was related to the economic value of land. The reason may be that in such cases, the loss was not only purely economic, it was also the only loss arising from the breach of duty.

[12] The Spandeck redacted test for duty in the tort of negligence seems to be a restoration of the Atkinian test based on the “neighbour” principle in M’alister (Or Donoghue) (Pauper) v Stevenson [1932] AC 562, with the added flavour of judiciously determined considerations of policy. On the basis of the proximity between the plaintiff and the defendants, there is little doubt that duty will readily be established. The issue is the extent of compensation by way of damages that flows from a breach of that duty. In the present case, Baby P was not a loss arising from the breach of duty. Furthermore, it cannot be said that the plaintiff and her husband were not contemplating having to expend money to bring up a child. On the contrary, the reason they engaged the defendants was so that they could have a child. This case cannot be compared to the cases where purely economic was deemed recoverable in damages. I am of the view that the Upkeep Claim in tort in this case is one for purely economic loss which, even if liability in negligence was established, cannot be recovered. However, that does not mean that this appeal has to be dismissed.

[13] This appeal arose from an application to strike out the part of the plaintiff’s claim relating to the upkeep of the child. It is inappropriate that an application to strike out was brought in a case such as this. The facts did not seem to be very much disputed, but the claims as to reasonableness of damages were challenged on law. If the issue were strictly on damages, then the dispute should be addressed during the assessment of damages after liability has been determined. In a case such as this, the issue of damages should not be heard in isolation because both the liability and damages aspects of the case are connected. This was not heard as a preliminary point of law in respect of liability and quantum although counsel for both sides appeared to have proceeded as such in their submissions before me as well as in the court below. Had Mr Sreenivasan submitted that this issue ought to be heard by the trial judge, I would have allowed the plaintiff’s appeal and set aside the order striking out the claim, but he seemed as keen as the defendants’ counsel, Mr Lok, to dispose of this appeal as if the issue in dispute was an independent one. Counsel should also bear in mind that the plaintiff’s claim is founded in both contract and tort on the same facts. They must be tried together. Hence, this issue (the validity of the Upkeep Claim) may also not be appropriate to be tried as a preliminary issue. Both counsel appear to treat the liability for the Upkeep Claim as an issue in liability but it is really an issue in damages.

[14] However, since counsel on both sides, by mutual consent, argued on the correctness in law of awarding an Upkeep Claim, I am giving my reasons for not accepting Mr Sreenivasan’s submissions as to the validity of the Upkeep Claim. Although I am of the view that the Upkeep Claim is not recoverable as damages in tort, I am setting aside the order below and direct that the claim proceed to trial. Further, the plaintiff is also making the Upkeep Claim in contract (although not in the court below). How does the court assess damages in a contract claim before liability has been determined?

[16] What I now say may not be a principle in law, but I believe that it is a treasured value in humanity, and that is that no parent would want her child to grow up thinking that she (the child) was a mistake. Were the plaintiff to succeed in the Upkeep Claim, whether in tort or in contract, every cent expended in the upbringing of Baby P will remind her that it was money from a compensation for a mistake. Baby P should not ever have to grow up thinking that her very existence was a mistake. If there is any reason for not pursuing or granting the Upkeep Claim, the emotional wellbeing of Baby P is reason enough.