Significance

The Singapore Court of Appeal awarded a loss of genetic affinity head of claim in a negligence tort suit for a case of wrongful fertilisation (IVF mix up). This is a novel unprecedented head of claim (possibly worldwide). Although the Court rejected the claim for upkeep costs of the child on public policy grounds, it decided to peg the loss of genetic affinity damages to a percentage of the upkeep costs. Summary of the decision here.

Facts

The facts are simple and unfortunate. A couple sought to conceive a child through in-vitro fertilisation (IVF). They succeeded and had a daughter. It was discovered upon the child’s birth that the wrong sperm had been used to fertilise the ovum. (The sperms from a stranger of a different ethnicity from the father were used.) Mother then sued the doctors and medical centre in negligence, claiming the expenses she would incur in raising the baby (referred to as Baby P) (“upkeep costs”).

The defendants admitted liability but disputed on damages. They say they should not have to pay the upkeep costs. They argued that the child is a blessing, and it is distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation. The High Court decided on this basis, among other reasons.

The Court of Appeal considered whether upkeep costs should be awarded, as well as a potential award for loss of autonomy and for punitive damages.

The Court concluded that upkeep costs should not be awarded for being contrary to public policy. However, loss of genetic affinity should be an actionable head of damage. Punitive damages is in theory possible but on the facts not justified.

Upkeep Costs Rejected

The Court considered the precedent cases worldwide on such wrongs involving the birth of children, i.e. wrongful birth, wrongful conception, wrongful life, and concluded that the present facts do not fall within those categories. Instead, the Court adopted the term “wrongful fertilisation”, citing at [34] my article published in the Tort Law Review: Ronald JJ Wong, “Upkeep claims for wrongful birth, wrongful conception or wrongful fertilisation? IVF mix-up in the Singapore High Court: ACB v Thomson Medical Pte Ltd [2015] SGHC 9” (2015) 23 Tort L Rev 172. The essence of such a claim would be that the plaintiffs never planned to have this child (that is to say, the child who was born as a result of the use of the wrong genetic material) but instead planned for and desired to have a child with whom they would share genetic kinship: at [34].

The Court rejected the argument that the issue of awarding upkeep costs is one of causation, i.e. that whether the negligence had occurred, the parents would have had to bear the costs of a child anyway. The Court reasoned that the parents underwent IVF procedure to have a child of their parentage, not some child who is not completely theirs (to use the Court’s words). It would not be right to assume equivalence in terms of how much the parents would have spent on such a child not quite completely theirs as compared to a child who is completely theirs. In other terms, but for the negligence, Baby P would not have been born and the plaintiff / appellant would not now be put to the expense of raising her: at [35]-[43].

The Court then analysed the issue of damage vs damages. Damage is the injury which is recognised by the law to deserve compensation. Damages is the monetary sum payable. The concept of damage is at the end of the day not a factual, but a normative concept. As one commentator put it, “[a]ll damage is socially constructed”: at [45]. Whether a particular head of damage is actionable will depend greatly on the cause of action raised, e.g. contract or tort: at [46].

After reviewing foreign cases from the UK and Australia, the Court came to 3 preliminary reasons for not deciding the case in a particular way: at [81]. They are:

• it does not matter whether the upkeep claim is classified as an action for the recovery of pure economic loss because there is no general exclusionary rule against recovery for pure economic loss in Singapore : at [82];
• the dispute is fought not at the factual, but at the normative level. The argument that award of upkeep costs would be antithetical to settled legal policy concerning the value human life or the character of a parent-child relationship is not a factual one: at [83];
• the decision of the parent to accept the child and raise him/her after birth cannot be taken as an act which breaks the chain of causation (novus actus interveniens): at [84].

The choice of whether to abort or to put a child up for adoption is of profound social and moral significance. It was one which the Appellant should never have been called upon to make and the only reason why the Appellant had been placed in this invidious position was because of the Respondents’ negligence. it would be wholly contrary to the policy of the law, as embodied in s 3(1) and 5 of the Termination of Pregnancy Act and s 4(4) of the Adoption of Children Act, to recognise that the voluntary decision of a woman not to terminate a pregnancy or, as in this case, not to give a child up for adoption can constitute a novus actus interveniens: at [85].

The Court concluded that it would reject the claim for upkeep costs for two reasons (at [86]):

• The obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally recognisable head of loss.
• To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the mother in a position where her personal interests as a litigant would conflict with her duties as a parent.

First, the Court considered that “the upkeep claim is an action seeking relief in respect of a particular consequence of parenthood – the duty to provide material support for one’s child – and its success therefore necessarily depends on the recognition of the obligations of parenthood as actionable damage. In our judgment, this is not a step that this court should take”: at [87]. The expenses which are incurred towards the discharge of this parental duty are not capable of characterisation as a loss: at [90].

At this juncture I should quote a tender excerpt from the judgment at [91]:

“The financial cost of raising a child lies beyond the compass of the law in the same way that the effort expended by the Appellant in all other aspects of raising Baby P – for instance, the hours of lost sleep spent putting her to bed; the sorrow and worry endured during a bout of illness; or the simple act of blowing on a spoonful of hot soup before feeding it to her – falls outside the domain of the law. These, and a million other sacrifices, both big and small, that parents make unthinkingly for their children during the course of their lifetime, are – to use the words of Viscount Simon LC in the House of Lords decision of Benham v Gambling [1941] AC 157 at 168 – “incapable of being measured in coin of the realm”.”

The Court observed that it is not open to the mother to argue, on the one hand, that she and her husband have accepted Baby P as their own (and therefore assumed the status of parents) and yet, on the other hand, argue that the responsibility or obligation of maintaining the child is something which they have not accepted: at [93].

Second, the Court held that “the essentially custodial and fiduciary nature of the parental relationship raises the spectre of a possible conflict of interest between the parents’ private interests in the litigation and their duties vis-à-vis their children. In order to establish a case for the recovery of upkeep costs, parents would have to come to court to prove that their children represent a net loss to them. The very nature of such an exercise encourages the exaggeration of any infirmities and the diminution of benefits as might exist in their children, in order that the account may be as favourable to the parents as possible. This is conduct which is fundamentally at odds with the overarching duty that parents have to provide, care for, and love their children”: at [95].

“Given that all the policy considerations are premised, in one way or another, on the notion that it is objectionable for this to be done, there is no reason in principle why the outcome should depend on the cause of action concerned”, whether contract or tort, whether framed as a breach of promise or a negligent wrong: at [102]. Two possible exceptions to this: (a) a contractual warranty guaranteeing a particular outcome; or (b) a clause providing for damages in the event of a situation such as the present. But these do not arise on the facts.

Loss of Autonomy Rejected

The Court then considered the possibility of damages for loss of autonomy. This in essense is to recognise that the injury caused is the loss to the parents’ autonomy, the opportunity to live the life they had planned. Cases from other jurisdictions have advocated and/or adopted such an approach.

However, the Court rejected recognising the loss of autonomy (without more) as an actionable injury in its own right; however, a loss of autonomy may underlie a more specific award of damages in the context of a negligent interference with the plaintiff’s reproductive plans: at [115]. There are 3 reasons:

• the concept of “autonomy” is too nebulous and too contested a concept to ground a claim;
• the notion of a loss of autonomy does not comport with the concept of damage in the tort of negligence;
• the recognition of such a head of damage would undermine existing control mechanisms which keep recovery in the tort of negligence within sensible bounds.

The conceptual reason is that autonomy is too ambiguous. The Court then went into a discursive on different conceptions of autonomy. Autonomy in the thin liberal sense of simply being choices made freely. Autonomy in the thick liberal sense of choices giving effect to long-term goals. And autonomy in the communitarian tradition that takes into account social relations.

The incoherence reason is that in the law of tort, damage is recognising an objective detriment. But most interferences with autonomy would fall far short of this standard. The Court noted that this approach would be more supportable in a rights-based vindicatory model of tort law. But the development of the common law of tort does not take such an approach. It is more interested in remedies for harms.

The third reason is the possible over-inclusiveness of recognising autonomy loss. “[A]ny form of damage can, with some ingenuity, be reconceptualised in terms of a damage to autonomy”: at [123].

The Real Loss of Genetic Affinity

Essentially, the Court concluded that taking autonomy as a principle, the real loss or injury is that relating to the mother’s desire to have a child of her own, with her husband, a desire that is a basic human impulse, and its loss is keenly and deeply felt, even if it is difficult to put into words: at [127]. It is, at its core, a desire for identity bounded in consanguinity: at [128].

Further, the Court observed that there are social realities concerned which affect the parents’ well being. The reality is that Singapore society, much as the Court would not endorse it, is not yet post-racial. The Court recognised “the complex role that physical resemblance, race, and cultural and ethnic identity have had and continue to have on our individual well-being, as they so evidently have had on” the mother: at [135].

Quantification of Damages

Then here comes the tricky bit. Quantification of damages, putting a monetary value to loss or injury, is bound to have some level of arbitrariness or difficulty. But there are two goals in quantifying damages: reasonable compensation and uniformity in the method of quantification.

The Court considered a conventional award as adopted in the Rees House of Lords decision. While the Court observed that it would have “the virtues of consistency, uniformity, expedience, and fairness to commend it”, it would be contrary to the value of individual autonomy, as a uniform sum presupposes that all parents are identically situated and would be impacted in the same way by the disruption of their reproductive plans.

Further, “the creation of a uniform award is usually only appropriate where the harm in question is common and there is some basis for the courts to fix the sum by reference to the awards made in comparable cases. Given that this is the first time that such an award is being made and there are no comparable precedents to be found (whether locally or overseas), it would not be appropriate for this court to set a uniform sum to guide future awards at this juncture. As Lord Hope observed at [77] of Rees, the creation of a novel and a standard award should – if it is to be done at all – be performed by Parliament, perhaps assisted by a process of consultation”: at [142].

The other option the Court considered is for “the damages … to be assessed in terms of the expenses necessary to overcome or cope with the restrictions on autonomy which arise therefrom”. The Court rejected this for bringing into the concept issues of parental obligation and yet not going far enough in compensation since it rests on a negative view of autonomy. And the “approach would have the effect of encouraging plaintiffs to come to court to prove the burden that the child has been”.

Finally, the Court decided on the approach of a conventional sum for the non-pecuniary loss suffered. This approach focusses on the precise motivations of each plaintiff. The Court opined that this “properly reflects the compensatory objective of an award of damages. It is vital … to take into account the unique types of harm suffered by a person when his/her reproductive plans are disrupted in deciding on an appropriate award”: at [147].

The Court observed that since it had “no comparable precedents (whether local or foreign) against which to draw appropriate comparisons … [it] [w]ould benchmark the eventual award as a percentage of the financial costs of raising Baby P. Although … this is not an appropriate case in which to award upkeep costs as such to the Appellant, the financial costs of raising Baby P are not … wholly irrelevant as, absent such costs, there would be no other criterion or standard by which to assess the quantum of damages that ought to be awarded”: at [148].

“In the circumstances … the [Court] awarded 30% of the financial costs of raising Baby P as compensation, which is an amount that … properly reflects sufficiently the seriousness of the … loss and is just, equitable, and proportionate in the circumstances of the case”: at [150].

Punitive Damages

The Court then analysed the issue of whether punitive damages can be awarded for tort. The locus classicus is the House of Lords decision in Rookes v Barnard [1964] AC 1129 (“Rookes”). A few comments are made:

• punitive damages is synonymous with “exemplary damages”;
• punitive damages are to be distinguished from “aggravated damages”. Punitive damages, as stated above, are meant to punish, deter, and condemn; aggravated damages, on the other hand, serve a compensatory function – they are awarded to augment a sum awarded in general damages to compensate for the enhanced hurt suffered by the plaintiff due to the aggravation of the injury by the manner in which the defendant committed the wrong or by his motive in so doing: at [156].

The Rookes decision laid down only 3 scenarios where punitive damages may be awarded:

• (a) first, where there had been oppressive, arbitrary or unconstitutional action by the servants of the government;
• (b) second, where the defendant’s conduct was calculated to make a profit for himself which might well exceed the compensation payable to the plaintiff; and
• (c) third, where punitive damages were expressly authorised by legislation.

Then there are 3 considerations: “First, the claimant must be the victim of the punishable behaviour … Second, the power must be exercised with restraints because the award of punitive damages could “be used against liberty” … Third, the means of the parties (although ordinarily irrelevant in an award of compensatory damages) should be taken into account in the calculation of a punitive award, as should “[e]verything which aggravates or mitigates the defendant’s conduct””: at [159].

Then the Court considered that in Australia, New Zealand and Canada, the courts have rejected Rookes and held that punitive damages can be awarded generally in tort. In Hong Kong however, Rookes has been followed.

The Court considered that punitive damages may be awarded generally.

“Even if it were accepted that the function of the civil law is primarily compensatory, this does not mean that it is exclusively so, and that there is consequently no room for the award of damages to serve the needs of punishment, deterrence, or condemnation”: at [172].

The Court rejected the Rookes categories approach: “the test is unprincipled because it imposes an arbitrary limitation on the
jurisdiction of the court to award punitive damages which does not correspond to the underlying principle of its grant (that is, to punish, deter, and condemn). Second, the categories are “illogical”. As has been pointed out in many different cases, there is no reason to single out wrongs committed [in those categories]. The categories are the product of history and not principle”: at [174]-[175].

The Court then held at [176] that “punitive damages may be awarded in tort where the totality of the defendant’s conduct is so outrageous that it warrants punishment, deterrence, and condemnation“, where outrageous conduct refers to gravity and not manner of the act.

Two questions then arise:

• (a) whether punitive damages may be awarded where the defendant has already been punished by the criminal law; and
• (b) whether punitive damages may be awarded for inadvertent conduct.

On (a), the Court preferred “a less categorical approach which still reposes the court with a discretion to decide whether punitive damages are warranted even if the defendant has already been the subject of criminal or disciplinary proceedings”: at [182]. The Court observed at [183] that ““the task of fixing the appropriate sentence in the criminal proceeding and the inquiry into exemplary damages in the civil proceeding is essentially a different exercise””. The availability of punitive damages fills gap by affording victims who have been subject to “outrageous” conduct a means to vindicate their interests themselves as plaintiffs in civil suits: at [185].

In conclusion, “the fact that a defendant has already been punished by the criminal law or through the imposition of a disciplinary sanction, is a weighty factor to be taken into consideration when deciding whether to award punitive damages but it is not determinative or conclusive. Regard must be had to the facts of each case and, in particular, to the purposes sought to be achieved by a punitive award and the extent to which they have already been achieved by the imposition of criminal punishment. That being said, at the end of the day, whether the approach is described as a matter of “rule” or as one of “discretion” is … of lesser moment than the point of principle involved, which is simply that the court should not make a punitive award when there is no need to do so“: at [187].

The Court favoured the broader view that punitive damages do not exist only to punish the defendant, but can also legitimately serve wider social functions. When it performs its retributive function, a punitive award looks backwards at the conduct of the defendant and imposes a condign sanction; however, a punitive award also looks forward by making an example of the particular defendant to deter would-be tortfeasors from committing similar transgressions, influencing societal behaviour, and allowing the victim of the wrong an avenue to vindicate his/her rights: at [200].

The state of mind requirement should not be a part of our law. Proof of intentional wrongdoing or conscious recklessness is not an essential prerequisite to the award of punitive damages in tort: at [206].

If an award of punitive damages were to be imposed, this would constitute an additional head of damages, and the sum awarded would be additional to, and not in lieu of any compensatory award that might be made: at [209].

On the facts of this case, the Court did not think it was able to conclude that this is a proper case for a punitive award. The facts were simply too scant to support a finding of outrageous conduct.

Conclusion

The Court reiterated the observation that “the life of every person carries with it its own inestimable value and dignity and the worth of a person can neither be enlarged nor its importance abridged by any pronouncement of this court – nothing we have said should (or, indeed, could) be taken as a reflection of this court’s view of the worth of Baby P. That is not the issue before this court nor can it ever be”.