27 May 2017
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Supreme Court Note: ACB v Thomson Medical and others [2017] SGCA 20 (recovery of upkeep costs following IVF mix-up)

Supreme Court Note
11 Apr 2017

The Appellant underwent IVF treatment at a fertility clinic operated by the second Respondent and delivered a daughter (“Baby P”). Soon after the birth of Baby P, it was discovered that 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 tort and sought damages for, among other things, the expenses she would incur in raising Baby P (“upkeep costs”). Additionally, she also sued the second Respondent in contract. The High Court ruled, as a preliminary issue, that the Appellant was not entitled to bring a claim for upkeep costs.

The principal issue in this appeal was whether the expenses which arise in relation to the unplanned birth of a healthy child who was born as a result of the negligence of a medical professional was a compensable head of damage. Further submissions which were filed at the direction of the Court of Appeal addressed the further issues of (a) whether the Appellant could claim damages to compensate her for the loss of autonomy which she had suffered and (b) whether the court was entitled to make an award of punitive damages in this case.

The Court of Appeal unanimously dismissed the appeal and upheld the decision of the High Court on the issue of upkeep costs. It held that the recognition of a claim for upkeep costs would be against public policy as it would require the Court to regard, as actionable damage, the incidents of a relationship (the parent-child relationship) which was regarded as socially foundational and incapable of estimation as loss. The Court of Appeal also held that such recognition would also be inconsistent with, and deleterious to, the health of the institution of parenthood and therefore be against the public interest.

The Court held that a loss of autonomy could not be recognised as actionable damage in its own right. However, the Court found that the Appellant had suffered a loss of “genetic affinity”. This was an expression which the Court used to refer to ties which arise partly a result of genetic relatedness and partly a result of the social significance which such relatedness carries. The Court held that this should be recognised as a distinct head of damage in its own right. The Court remitted the assessment of the quantum of damages to be awarded to the High Court but observed that it would be preferable for the parties to arrive at an amicable settlement.

On the issue of punitive damages, the Court held that the decision of the House of Lords in Rookes v Barnard [1964] AC 1129, which confined the situations in which punitive damages were available to three narrow categories, would no longer be followed in Singapore. Henceforth, punitive damages may be awarded in tort where the totality of the defendant’s conduct was so outrageous that it warranted punishment, deterrence, and condemnation. The Court further held that punitive damages may be awarded even where the defendant had already faced criminal or disciplinary sanction and also that proof of intentional wrongdoing or conscious recklessness was not a prerequisite to an award of punitive damages. However, the Court concluded that this was not a proper case for a punitive award to be made.

On upkeep costs: see paras 87, 90 to 94, 95, and 100. On loss of autonomy: see paras 119, 120, 121, and 124. On “genetic affinity”: see paras 125 to 135. On punitive damages: see paras 174, 175, 180, 182, 187, 199, 200, 202, 206, and 208.

To view this judgment click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. The full judgment of the Court is the only authoritative document.