ACB v Thomson Medical: Negligence, Breach of Contract & IVF Error

ACB, a Chinese woman, sued Thomson Medical Pte Ltd for negligence and breach of contract after an IVF error resulted in her daughter, Baby P, being conceived with a third-party donor's sperm instead of her husband's. The High Court of Singapore addressed the plaintiff's claim for the expenses of raising Baby P (the Upkeep Claim). While the court expressed doubt about the claim's validity in both tort and contract, it set aside the order striking out the claim and directed that the claim proceed to trial.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

The order striking out the relevant portion of the claim is set aside, and the claim is directed to proceed to trial.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Plaintiff sues Thomson Medical for negligence and breach of contract after IVF error. The court addresses the claim for child upkeep expenses.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
OthersDefendantCorporationStriking out application unsuccessfulLost
THOMSON MEDICAL PTE LTDDefendantCorporationStriking out application unsuccessfulLost
ACBPlaintiffIndividualOrder striking out claim set asidePartial

3. Judges

Judge NameTitleDelivered Judgment
Choo Han TeckJYes

4. Counsels

Counsel NameOrganization
Lok Vi MingRodyk & Davidson LLP
Audrey Chiang Ju HuaRodyk & Davidson LLP
Calvin LimRodyk & Davidson LLP
N SreenivasanStraits Law Practice LLC
Palaniappan SundararajStraits Law Practice LLC

4. Facts

  1. The plaintiff is a Chinese woman married to a German man.
  2. In 2006, the couple had a son through IVF.
  3. In October 2010, the plaintiff delivered a daughter (Baby P) also conceived through IVF.
  4. During the IVF procedure for Baby P, the plaintiff's egg was mistakenly fertilized with sperm from a third-party donor.
  5. The plaintiff sued the defendants for negligence and breach of contract.
  6. The plaintiff sought to claim expenses incurred in bringing up Baby P (the Upkeep Claim).

5. Formal Citations

  1. ACB v Thomson Medical Pte Ltd and others, Suit No 467 of 2012 (Registrar's Appeal No 327 of 2013), [2014] SGHC 36

6. Timeline

DateEvent
Son conceived through IVF.
Plaintiff delivered a daughter (Baby P) conceived through IVF.
Plaintiff sued the defendants in the tort of negligence and breach of contract.
Registrar's Appeal No 327 of 2013
Judgment Reserved.

7. Legal Issues

  1. Negligence
    • Outcome: The court considered the issue of duty of care and the extent of compensation by way of damages that flows from a breach of that duty.
    • Category: Substantive
  2. Breach of Contract
    • Outcome: The court considered whether the expenses for the upkeep of the child can be considered damage or loss arising from the defendants’ conduct.
    • Category: Substantive
  3. Damages for Negligence and Breach of Contract
    • Outcome: The court considered whether the Upkeep Claim was recoverable as damages in tort or contract, particularly in light of the distinction between purely economic loss and consequential economic loss.
    • Category: Substantive
    • Sub-Issues:
      • Remoteness of damages
      • Purely economic loss
  4. Public Policy
    • Outcome: The court considered public policy arguments related to the Upkeep Claim, referencing the McFarlane and Cattanach cases.
    • Category: Substantive

8. Remedies Sought

  1. Monetary damages for the upkeep of the child (Upkeep Claim)
  2. Provisional damages for potential genetic conditions or diseases attributable to the unknown sperm donor

9. Cause of Actions

  • Negligence
  • Breach of Contract

10. Practice Areas

  • Medical Negligence
  • Commercial Litigation

11. Industries

  • Healthcare

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
McFarlane v Tayside Health BoardHouse of LordsYes[2000] 2 AC 59United KingdomCited as a precedent regarding claims for the expenses of bringing up a child conceived after a negligent sterilization procedure, but distinguished due to the present case involving a wanted child.
Cattanach v MelchiorHigh CourtYes[2003] 215 CLR 1AustraliaCited as a contrasting precedent from the High Court of Australia, which allowed claims for the expenses of bringing up a child conceived after a negligent sterilization procedure.
Spandeck Engineering (S) Pte Ltd v Defence Science & Technology AgencyCourt of AppealYes[2007] 4 SLR(R) 100SingaporeCited regarding policy considerations in determining duty of care and the recoverability of purely economic loss in negligence claims.
Murphy v Brentwood District CouncilN/AYes[1991] 1 AC 398United KingdomCited in relation to the retreat from Anns v Merton London Borough Council and the allowance of claims for purely economic loss.
Hedley Byrne & Co Ltd v Heller & Partners LtdN/AYes[1964] AC 465United KingdomCited as a case regarding negligent misstatements and purely economic loss.
M’alister (Or Donoghue) (Pauper) v StevensonN/AYes[1932] AC 562United KingdomCited regarding the "neighbour" principle in the tort of negligence.
Anns v Merton London Borough CouncilN/AYes[1978] AC 728United KingdomCited as a case that allowed claims for purely economic loss to sneak into the law of torts.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Women’s Charter (Cap 353, 2009 Rev Ed) s 70(1)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • In-Vitro Fertilisation (IVF)
  • Upkeep Claim
  • Negligence
  • Breach of Contract
  • Purely Economic Loss
  • Distributive Justice
  • Remoteness of Damages
  • Third-Party Donor
  • Assisted Fertilisation

15.2 Keywords

  • IVF
  • negligence
  • breach of contract
  • Thomson Medical
  • child upkeep
  • economic loss
  • Singapore
  • medical malpractice

17. Areas of Law

Area NameRelevance Score
IVF Negligence85
Measure of Damages80
Negligence70
Assisted Reproduction70
Contract Law60
Breach of Contract60
Medical Negligence60
Personal Injury40
Personal Injury Law40
Wrongful Birth30
Family Law30
Costs20
Trust Law20
Adoptions10
Divorce10

16. Subjects

  • Medical Negligence
  • Contract Law
  • Family Law
  • Tort Law