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    11:30 PM Shaun Pereira (Justices' Law Clerk, Supreme Court of Singapore)

    Case comment on ACB v Thomson Medical Pte Ltd and others [2015] SGHC 9

        

    In the course of an in-vitro fertilisation (“IVF”) procedure, a woman’s egg is fertilised not by the sperm of her husband, but that of another man as a consequence of a sperm mix-up at the fertility clinic. What damages is she entitled to? In ACB v Thomson Medical Pte Ltd and others [2015] SGHC 9, the High Court had to address this delicate matter that lies at the borderland of law, public policy and morality.

    Facts

    The plaintiff-mother engaged a fertility clinic at a private hospital to undergo an IVF procedure. The IVF was successful. The mother conceived and gave birth. But suspicions were aroused because the mother’s otherwise healthy child (“Baby P”) had a different complexion and hair colour from the mother and her husband. Baby P’s blood-type also did not match the couple’s. The couple discovered that there was a sperm mix-up. The mother’s egg was fertilised with the sperm of another man and not her husband.

    The mother claimed in negligence against the hospital, the fertility clinic, and two embryologists employed by the fertility clinic. One of the embryologists (“the third defendant”) was responsible for the collection, storage and verification of the husband’s sperm, as well as the fertilisation of the mother’s egg. The other embryologist was her supervisor. The mother also brought a contractual claim against the third defendant for breach of the contract between them. The third defendant was alleged to have breached the term to fertilise the mother’s egg with her husband’s sperm.

    One of the mother’s claims for damages was for the expenses that would be incurred in raising Baby P (“the upkeep claim”). The upkeep claim included expenses for Baby P’s: care, food and clothing; education until and including college or university; travel and holiday; and medical treatment or insurance. The defendants applied for the court to determine whether the plaintiff was entitled to the upkeep claim as a preliminary issue. (It is not clear from the judgment, but the defendants do not appear to have disputed liability. The application was preliminary to a trial for the assessment of damages ([7]).)

    Decision

    The High Court had to decide two questions. First, whether the question of the plaintiff’s entitlement to the upkeep claim was appropriate to be determined as a preliminary issue. Choo Han Teck J disposed of this quickly and held that it was ([9]). This point was not resisted, and no arguments to the contrary were made.

    The second issue, whether the mother was entitled to the upkeep claim, was the crux of the application. Choo J held that the mother was not. In doing so, Choo J distinguished two cases that counsel placed heavy reliance on: the House of Lords decision of McFarlene and another v Tayside Health Board [2000] 2 AC 59 (“McFarlene v Tayside”); and the Australian High Court decision of Cattanach v Melchior [2003] 215 CLR 1 (“Cattanach v Melchior”).

    Both those cases concerned claims by couples where the woman conceived subsequent to negligence associated with a vasectomy or sterilisation procedure. The House of Lords in McFarlene v Tayside disallowed the couple’s upkeep claim. The High Court in Cattanach v Melchior reached the opposite conclusion, though by a slim majority.

    Choo J distinguished McFarlene v Tayside and Cattanach v Melchior as being “wrongful birth” cases, where the woman conceived after a procedure that was targeted at preventing conception. The case before Choo J was quite the opposite. The very reason the couple engaged the defendants was to have a child. It could not be said that the couple was not contemplating expending money to raise a child ([15]).

    Choo J also gave short shrift to the mother’s argument for loss of a chance to abort Baby P if she had been informed of the mix-up earlier. Choo J described the argument as an “afterthought” which was neither supported by the mother’s pleadings nor her affidavit evidence ([14]). He also stated that there was no authority supporting such an argument. Allowing the upkeep claim on that basis would “[go] beyond what should constitute a reasonable restitution for the wrong done” (citing Lord Clyde’s speech in McFarlene v Tayside at 105).

    Discussion

    It is suggested that the decision is a correct one. The essence of an upkeep claim is for the expense of bringing up a child which a couple would not have been put to, had the negligence of the defendant not occurred. One cannot say in any meaningful way that the mother would not have been put to that expense had the defendants not been negligent.

    A more difficult question is what other damages the mother would be entitled to. Choo J expressed the view that the “tortfeasors are bound to compensate [the mother] under the established heads of claim such as pain and suffering” ([17]). Those claims were nonetheless not in issue before him. In McFarlane v Tayside, a majority of the House of Lords agreed that the mother was entitled to general damages for pain, suffering and inconvenience, as well as special damages for loss of earnings, medical expenses and clothing associated with the pregnancy and childbirth.

    Those heads of damage would, arguably, not be available to the mother in this case. Similar reasoning would apply to that used by Choo J in dismissing the mother’s upkeep claim. The mother’s claim cannot be based on the fact of the pregnancy, and the pain, suffering and inconvenience it necessarily entails. She would have experienced that even if the defendants had not been negligent. Rather, a claim for pain, suffering and inconvenience would have to be based on the fact that Baby P was not of her husband, but another man.

    A claim framed in that manner carries with it difficulties of its own. Chief amongst them are the sentiments expressed by Hale LJ in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 WLR 376 at [87], which were cited with approval by Choo J, albeit in the context of wrongful birth ([16]):

    No one wants a situation in which a parent who thoroughly dislikes her child and the predicament in which she has been placed ... is at an advantage compared with the parent who falls in love with her child at birth (as most do) and willingly reconcile herself to her fate. No one wants a situation in which the parent who disparages her child is at an advantage compared with one who sees the best in him.

    Yet there remains a strong impetus to provide an award in favour of the mother for the wrong that has been done to her. It is perhaps why in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, which was post-McFarlane v Tayside, the House of Lords “invented” a conventional award, even though it denied the upkeep claim. The House of Lords awarded the mother £15,000 for reasons that varied between the Law Lords, including: the legal wrong she suffered which has far-reaching effects on her family; the denial of the right to limit the size of the family; and the frustration of the expected benefit to be derived from being safeguarded from conception. It has been suggested that the conventional award is a break from established principles of damages (see Harvey McGregor, McGregor on Damages (2014, 19th ed, Sweet & Maxwell) at [38–289]).

    A broader point that emerges from this discussion is the interface between public policy, morality and the recoverability of damages. Choo J expressed the view obiter that a claim for upkeep in a wrongful birth case would be met by “cogent policy considerations” ([16]). No parent would want her child to grow up thinking she was a mistake. If an upkeep claim was allowed, every cent spent on the child’s upbringing would remind her of just that.

    The divergent results reached in McFarlane v Tayside and Cattanach v Melchior stem, to a certain extent, from different views of the role of these considerations in the grant of damages. In McFarlane v Tayside, Lords Slynn of Hadley, Steyn and Hope of Craighead characterised the claim as one for pure economic loss, and said that to impose liability would not be fair, just and reasonable (76C–D, 83E and 97D–F). Lords Steyn and Millett were slightly less guarded in their speeches. The former referred to grounds of “distributive justice” and said that a “judges’ sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law” (82F–G). Lord Millett said that “[t]here is something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation” (111D).

    On the other hand, the majority in Cattanach v Melchior was satisfied that the couple had a claim on “ordinary principles of tort liability” ([179] per Kirby J). Callinan J said that it was “distasteful to ... assess damages of the kind claimed”, but that distaste “can however provide no reason to refuse to award [damages] if the application of legal principle” required it ([296]). Callinan J said the upkeep claim “was a reasonably simple one” ([298]–[299]):

    The appellants were negligent. The respondents as a result have incurred and will continue to incur considerable expense. That expense would not have been incurred had the first appellant not given negligent professional advice. All of the various touchstones for, and none of the relevant disqualifying conditions against, an award of damages for economic loss are present here.

    Conclusion

    ACB v Thomson Medical Pte Ltd and others [2015] SGHC 9 marks only the beginning to these difficult questions interfacing morality and justice that have vexed other jurisdictions. It remains to be seen how they will be addressed by the Singapore courts in the time to come.

    * This blog entry may be cited as Shaun Pereira, "Case comment on ACB v Thomson Medical Pte Ltd and others [2015] SGHC 9", Singapore Law Blog (9 February 2015) (http://www.singaporelawblog.sg/blog/article/83)

    ** The opinions contained in the commentary reflect the author’s own views and are not to be understood as reflecting the views of the author’s employer.

    *** A PDF version of this entry may be downloaded here

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