Punitive Damages - ACB VS Thomson Medical PTE LTD, ETC.

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE
[2017] SGCA 20
Civil Appeal No 17 of 2015
Between
ACB
… Appellant
And
(1) THOMSON MEDICAL PTE LTD

(2) THOMSON FERTILITY CENTRE
PTE LTD
(3) ELEANOR QUAH
(4) CHIA CHOY MAY
… Respondents
In the matter of Suit No 467 of 2012
Between
ACB
… Plaintiff
And
(1) THOMSON MEDICAL PTE LTD

(2) THOMSON FERTILITY CENTRE
PTE LTD
(3) ELEANOR QUAH
(4) CHIA CHOY MAY
… Defendants
JUDGMENT
[Tort] — [Negligence] — [Damages]
[Tort] — [Negligence] — [Damages]
[Damages] — [Punitive damages]

TABLE OF CONTENTS
INTRODUCTION............................................................................................4
BACKGROUND ..............................................................................................7
THE DECISION BELOW ............................................................................11
THE STRUCTURE OF THIS JUDGMENT...............................................13
TWO PRELIMINARY OBJECTIONS .......................................................14
SUMMARY OF OUR CONCLUSIONS......................................................17
THE UPKEEP CLAIM .................................................................................17

THE LANDSCAPE OF REPRODUCTIVE WRONGS ...............................................18
Three categories of reproductive wrongs: wrongful life, wrongful birth,
wrongful conception.................................................................................18
Wrongful fertilisation ...............................................................................21
“The [Appellant] wanted a second child all along”................................23
THE CONCEPT OF ACTIONABLE DAMAGE .......................................................29
Actionable damage in the tort of negligence............................................31
Actionable damage in an action for breach of contract ..........................35
THE FOREIGN AUTHORITIES ...........................................................................37
The UK .....................................................................................................38
(1) McFarlane: healthy parents and healthy child............................40
(2) Parkinson: healthy parents and disabled child............................44
(3) Rees: disabled mother and healthy child.....................................46
Australia ...................................................................................................48
Some interim conclusions on the foreign authorities ...............................53
ANALYSIS......................................................................................................56
The obligations of parenthood .................................................................57
Inconsistency with the nature of the parent-child relationship................63
CONCLUSION ON UPKEEP COSTS ....................................................................67
LOSS OF AUTONOMY................................................................................70
THE DEVELOPMENT OF AN AWARD FOR LOSS OF AUTONOMY ........................71
ARGUMENTS AGAINST THE RECOGNITION OF LOSS OF AUTONOMY AS AN
ACTIONABLE INJURY IN ITS OWN RIGHT .........................................................76
The conceptual objection .........................................................................77

The coherence objection ..........................................................................80
The over-inclusiveness objection .............................................................82
THE “REAL LOSS”: GENETIC AFFINITY ...........................................................83
QUANTIFICATION OF DAMAGES .....................................................................90
The “conventional award” in Rees..........................................................91
Award for necessary expenses to avoid or cope with restrictions on
autonomy ..................................................................................................93
Conventional sum for non-pecuniary loss................................................95
THE ISSUE OF PUNITIVE DAMAGES ..................................................100

THE DECISION IN ROOKES ...........................................................................101
The position in the UK ...........................................................................103
The position in the Commonwealth........................................................106
The position in Singapore ......................................................................110
DEVELOPING A COHERENT FRAMEWORK .....................................................113
The relevance of criminal punishment ...................................................114
Punitive damages for inadvertent conduct.............................................121
(1) Bottrill and Couch .....................................................................122
(2) The principle of the matter ........................................................127
CAN PUNITIVE DAMAGES BE AWARDED HERE? ............................................132
CONCLUSION.............................................................................................134
This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.
ACB
v
Thomson Medical Pte Ltd and others
[2017] SGCA 20
Court of Appeal — Civil Appeal No 17 of 2015

Sundaresh Menon CJ, Chao Hick Tin JA, Andrew Phang Boon Leong JA,
Tay Yong Kwang JA and Steven Chong J
19 August 2015; 6 October 2016
22 March 2017 Judgment reserved.
Andrew Phang Boon Leong JA (delivering the judgment of the court):
TABLE OF CONTENTS
Introduction [1]–[5]
Background [6]–[13]
The decision below [14]–[16]
The structure of this judgment [17]–[18]
Two preliminary objections [19]–[23]
Summary of our conclusions [24]
The upkeep claim [25]–[105]
The landscape of reproductive wrongs [27]–[43]
Three categories of reproductive wrongs: [28]–[31]

wrongful life, wrongful birth, wrongful
ACB v Thomson Medical Pte Ltd [2017] SGCA 20
conception
Wrongful fertilisation [32]–[34]
“The [Appellant] wanted a second child all [35]–[43]

along”
The concept of actionable damage [44]–[54]
Actionable damage in the tort of negligence [47]–[51]
Actionable damage in an action for breach of [52]–[54]

contract
The foreign authorities [55]–[85]
The UK [58]–[73]
(1) McFarlane: healthy parents and healthy [61]–[67]

child
(2) Parkinson: healthy parents and disabled [68]–[70]

child
(3) Rees: disabled mother and healthy child [71]–[73]
Australia [74]–[80]
Some interim conclusions on the foreign [81]–[85]

authorities
Analysis [86]–[100]
The obligations of parenthood [87]–[94]
Inconsistency with the nature of the parent-child [95]–[100]

relationship
Conclusion on upkeep costs [101]–[105]
Loss of autonomy [106]–[152]
The development of an award for loss of autonomy [109]–[114]
2
Arguments against the recognition of loss of [115]–[124]

autonomy as an actionable injury in its own right
The conceptual objection [116]–[119]
The coherence objection [120]–[122]
The over-inclusiveness objection [123]–[124]
The “real loss”: genetic affinity [125]–[136]
Quantification of damages [137]–[152]
The “conventional award” in Rees [139]–[142]
Award for necessary expenses to avoid or cope [143]–[144]

with restrictions on autonomy
Conventional sum for non-pecuniary loss [145]–[152]
The issue of punitive damages [153]–[209]
The decision in Rookes [155]–[175]
The position in the UK [157]–[161]
The position in the Commonwealth [162]–[169]
The position in Singapore [170]–[175]
Developing a coherent framework [176]–[206]
The relevance of criminal punishment [178]–[188]
Punitive damages for inadvertent conduct [189]–[206]
(1) Bottrill and Couch [190]–[198]
(2) The principle of the matter [199]–[206]
Can punitive damages be awarded here? [207]–[209]
Conclusion [210]–[212]
3
Introduction
1 In this appeal, we are concerned with the proper limits of civil liability.
As Griffiths LJ (as he then was) aptly observed, “[e]very system of law must
set some bounds to the consequences for which a wrongdoer must make
reparation … In any state of society it is ultimately a question of policy to
decide the limits of liability” (see the English Court of Appeal decision of
McLoughlin v O’Brian and others [1981] 2 WLR 1014 at 1036G–H, reversed
in McLoughlin v O’Brian and others [1983] 1 AC 410 (“McLoughlin (HL)”),
although not on this particular point). The law sets these limits not only
because of concerns over the adverse effects that the imposition of liability
might have on the legal system or on public welfare more generally but also,
more positively, for reasons of “public benefit and convenience” (see the
decision of the Court of the King’s Bench in Lawton v Lawton (1743) 3 Atk
13 at 16 per Lord Hardwicke LC). These boundaries are set in various ways.
The different means employed include the doctrines of causation, remoteness,
and – most pertinently in this case – through the refusal to recognise particular
types of damages as heads of recoverable loss.
2 Of course, the converse is possible and the law may expand, rather
than limit, the boundaries of liability. This is true both of tort and of contract.
The tort of negligence emerged in its modern form as a cause of action for
physical injury directly caused by the positive act of a negligent stranger.
However, it expanded to embrace, in the classic House of Lords decision of
M’Alister (Or Donoghue) (Pauper) v Stevenson [1932] AC 562 (“Donoghue v
Stevenson”), injury caused by the negligent manufacture of goods. Since then
it has grown to include other forms of injury such as pure economic loss
arising from a negligent misstatement (see, in particular, the decision of the
House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC
4
465) as well as psychiatric harm arising from a recognised psychiatric illness

(see, in particular, the House of Lords decision in McLoughlin (HL)).
Likewise, the law of contract has expanded beyond the realm of commerce to
afford recovery not only for lost economic value, but also for the loss of
amenity arising from frustrated contractual expectations (see, for example, the
more recent House of Lords decision of Ruxley Electronics and Construction
Ltd v Forsyth and another appeal [1996] AC 344). The list of legally
cognisable injuries has evolved with time because the world has changed, and
the law must, as Lord Macmillan said in Donoghue v Stevenson, “adapt itself
to the changing circumstances of life” (at 619). This is perhaps clearest in the
area of medical science, where scientific advancement has made it possible for
us to do things today which would previously have been unimaginable a few
decades ago. This has brought untold prosperity to many, and hope to those
who previously had none; but it has also given us greater capacity for harm.
The facts of this appeal throw this into sharp relief.
3 The Appellant and her husband sought to conceive a child through in-
vitro fertilisation (“IVF”). The Appellant underwent IVF treatment and
delivered a daughter, whom we shall refer to as “Baby P”. After the birth of
Baby P, it was discovered that a terrible mistake had been made: 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 the tort of negligence and for breach for contract and sought
damages for, among other things, the expenses she would incur in raising
Baby P (“upkeep costs”). The Respondents conceded liability but argued that
the Appellant should not be allowed to recover upkeep costs. They argued that
the child is a blessing, and that there was something distasteful, if not morally
offensive, in treating the birth of a normal, healthy child as a matter for
5
compensation. The High Court Judge (“the Judge”) agreed. In the penultimate
paragraph of his judgment he added, “[w]ere the [Appellant] to succeed in her
upkeep claim, whether in tort or in contract every cent spent in the upbringing
of Baby P will remind her that it was money from compensation for a mistake.
Baby P should not ever have to grow up thinking that her very existence was a
mistake” (see ACB v Thomson Medical Pte Ltd and others [2015] 2 SLR 218
at [16] (“the Judgment”)).
4 We now stand at the crossroads. The question which was presented to

us for determination was whether the Appellant was entitled to bring a claim
for upkeep costs. The horns of the dilemma would appear to be these. On the
one hand, if we refuse the award of upkeep costs, the Appellant would receive
a comparatively modest award for (in the main) pain and suffering. This
would appear to undercompensate the Appellant for the wrong which has been
done to her – after all, the only reason why she elected to conceive via IVF
was because she desired a child with her husband, but, because of the
Respondents’ mistake, she finds herself the mother of a child fathered by a
complete stranger. On the other hand, the award of upkeep costs, it was
argued, denigrates the worth of Baby P because it necessarily entails viewing
her existence as a continuing source of loss to the Appellant, such that every
dollar spent on raising her from the day of her birth until she reaches the age
of majority sounds in damages.
5 There can be no doubt that this is a “hard case” (in both the colloquial
and jurisprudential senses of the word) but if anything this calls for greater
analytical clarity and rigour in order to avoid the reproach that hard cases
make bad law (see the House of Lords decision of Fairchild v Glenhaven
Funeral Services Ltd and others [2002] 3 WLR 89 at [36], per Lord Nicholls
of Birkenhead). Before we turn to the substance of our decision, however, we
6
pause to emphasise a general point of the first importance. Nothing we say in

this judgment should – or, indeed (as will be evident from the analysis that
follows), could − be taken as a reflection of this court’s view of the worth of
Baby P. This is because that is not the issue before this court nor can it ever
be. 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. With this in mind, we turn to
the task at hand, beginning first with a more detailed recitation of the relevant
facts.
Background
6 The Appellant is a Singaporean Chinese woman who is married to a

German man of Caucasian descent (“Husband”). The first Respondent,
Thomson Medical Pte Ltd, is a company which has the management and
control of a private hospital known as Thomson Medical Centre. The first
Respondent is licensed to provide assisted reproduction as a special care
service under the Private Hospitals and Medical Clinics Act (Cap 248, 1999
Rev Ed) (“the Private Hospitals Act”). The second Respondent is a company
which is fully owned by the first Respondent and it operates a fertility clinic
which is located at Thomson Medical Centre where it provides, among other
things, IVF treatment. The third and fourth Respondents were, respectively, a
senior embryologist and the chief embryologist employed by the second
Respondent at the material time.
7 Wanting to start a family, the Appellant and her Husband sought

advice from a consultant obstetrician in 2006 and he advised them to attempt
IVF. Taking up this suggestion, the Appellant underwent an IVF procedure
sometime in 2006. As a result, the Appellant conceived and gave birth to a son
7
in 2007. Desiring to have more children, the Appellant signed an agreement

with the second Respondent for another round of IVF services in 2010. The
salient terms of the agreement (as pleaded) were that: (a) the second
Respondent would “provide reasonably good medical, scientific and
laboratory services to the Appellant in connection with the fertility treatment”
and (b) that the “[Appellant’s] egg will be fertilized by the sperm of the
[Husband] and that the embryos would be kept safely for the sole use of the
[Appellant]”.
8 The second round of IVF was carried out. Shortly afterwards, the
Appellant conceived and gave birth to a daughter, Baby P, sometime in
October 2010. The Appellant and her Husband noticed that Baby P’s skin tone
and hair colour were different from their own, and were also markedly
different from those of their first child, who had also been conceived through
IVF. A blood test was performed and it showed that Baby P had a blood type
which did not match either of theirs. Worrying that Baby P might be suffering
from jaundice or a genetic disorder, the Appellant and her Husband insisted
that further tests be performed. The results of these further tests came as a
shock. The Appellant and her Husband were told that Baby P possessed a
blood type that could not have been the result of the combination of their
genetic material and further investigations confirmed that the Appellant’s egg
had been fertilised with the sperm of an unknown male Indian donor instead of
that of the Husband’s.
9 On 20 June 2011, the first Respondent pleaded guilty to a single charge

under s 5(1) of the Private Hospitals Act for breaching the terms of its licence
to provide assisted reproduction services and was fined a sum of $20,000, the
maximum permitted at that time. In the statement of facts (“SOF”)
accompanying the charge, the following was recorded:
8
10 By processing two semen specimens inside one

laminar hood at the same time and failing to ensure that the
staff at the [Assisted Reproduction] Centre discarded the
disposable pipettes that had been used after each step of
processing, the [first Respondent] had failed to ensure that
suitable practices were used in carrying out [assisted
reproduction] activities.
11 These lapses in procedure on 23 January 2010 had
contributed to the occurrence of a human error, which
resulted in an IVF mix-up. This had resulted in a baby being
born on 1 October 2010, whose DNA did not match [her]
father’s.
10 On 4 June 2012, the Appellant commenced Suit No 467 of 2012, suing

all the Respondents in the tort of negligence and additionally bringing suit
against the second Respondent for breach of contract. The Appellant was not
able to identify the particular negligent act which led to the mistaken
insemination, but relied on the doctrine of res ipsa loquitur. In the amended
Statement of Claim (“SOC”), the Appellant alleged that the mix-up had taken
place due to the absence of proper safeguards to prevent the mishandling of
specimens, repeating the specific allegations which were contained in the
SOF. The Appellant’s case against each of the Respondents was as follows:
(a) The first and second Respondents were alleged to be liable in

the tort of negligence, both for their personal failures to institute proper
control measures to ensure that there would be no accidental or
mistaken combination of genetic material as well as on account of their
vicarious liability for the negligence of the third and fourth
Respondents.
(b) The second Respondent was sued both in the tort of negligence
as well as for breach of contract. The two pleaded breaches of contract
were: (i) failing to fertilise the Appellant’s egg with the Husband’s
9
sperm and instead fertilising it with the sperm of another person; and
(ii) failing to provide reasonably good medical services.
(c) The third Respondent was alleged to be liable in tort for

negligently handling more than one semen specimen at a time and for
failing to ensure that there was no cross-contamination of genetic
material between semen samples.
(d) The fourth Respondent was alleged to be liable in negligence

for failing to put in place proper control measures in the fertility clinic,
failing to properly verify that the sperm which she was injecting into
the egg was that of the Husband, and for inadequately supervising the
work of the third Respondent (who was under her charge).
11 For the breaches detailed in the previous paragraph, the Appellant put
forward two principal heads of claim. The first was for pain and suffering
relating to the pregnancy as well as damages for mental distress. The second
was for upkeep costs and it included, among other things, the cost of enrolling
Baby P in an international school in Beijing where the Appellant and her
Husband presently reside, the cost of tertiary education in Germany, travelling
expenses, medical expenses, and the cost of feeding and caring for Baby P
until she is financially self-reliant. For ease of reference, we shall refer to the
second head of claim as the “upkeep claim”. Additionally, the Appellant also
filed a claim for provisional damages by which she sought to hold the
Respondents liable for damages (until such time as Baby P reaches 35 years of
age) arising from any genetic condition or disease that Baby P might have
inherited that might be attributable to the donor’s genes.
12 On 16 July 2012, the Respondents filed a joint defence. While

clarifying that they did not admit to all the assertions in the SOC, the
10
Respondents admitted that they were liable in damages to the Appellant.

However, they expressly clarified that their admission was not to be construed
as an admission of the Appellant’s entitlement to claim damages for upkeep
costs. They also denied liability in respect of the claim for provisional
damages.
13 On 8 October 2012, the Respondents applied to strike out the portion

of the SOC which pertained to the upkeep claim and the claim for provisional
damages. This was allowed at first instance by an assistant registrar. The
Appellant only appealed against the decision in respect of the upkeep claim
and the matter came before the Judge, who reversed the decision of the
assistant registrar and ordered that the matter proceed to trial (see ACB v
Thomson Medical Pte Ltd and others [2014] 2 SLR 990 (“the Striking Out
Decision”)). After the Judge handed down his decision, the Appellant
amended her SOC to remove her claim for provisional damages. This paved
the way for interlocutory judgment to be entered against the Respondents on
14 August 2014, with damages to be assessed. Shortly thereafter, the
Respondents applied to have determined, as a preliminary issue before the
hearing on the assessment of damages, the question whether the Appellant was
entitled to claim upkeep costs. This application was filed pursuant to O 33 r 2
of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”), and it also
came before the Judge, who answered the question in the negative.
The decision below
14 The Judge first began by considering the Appellant’s argument that the
Respondents should be liable for upkeep costs because they had failed to
detect and therefore inform her of the mix-up ahead of time, thereby denying
her of the opportunity to seek an abortion. This argument was summarily
11
rejected as being a “mere afterthought”. The Judge noted that the Appellant
had neither pleaded this in her SOC nor deposed in any of her affidavits that
she would have terminated her pregnancy if she had been told of the mix-up
earlier. The Judge also held that even if this argument had been properly
pleaded, he would still have rejected it on the ground that there was no
authority to support the proposition that damages could be claimed in respect
of a lost opportunity for an abortion (see the Judgment at [14]).
15 Turning to the substance of the Appellant’s arguments, the Judge

concluded that the upkeep claim must fail for the simple reason that the
Appellant “had wanted a second child all along” (at [15]). He noted that the
authorities which were cited to him all concerned claims for upkeep costs
arising out of the birth of children who had been conceived after the plaintiff-
mothers had been negligently advised that sterilisation procedures they
underwent were complete and that no contraception was required. These cases,
which he noted were referred to variously as “wrongful birth”, “unwanted
birth” or “unwanted pregnancy” cases, were readily distinguishable as the
plaintiffs there did not wish to conceive. By contrast, he observed, the
Appellant wanted to have a second child and was prepared to expend money
bringing up a second child (albeit one that she conceived with her Husband’s
sperm). This, he held, was “an important distinction”, as it meant that it could
“not be said that the [Appellant] and her husband were not contemplating
having to expend money to bring up a child” (at [15]). On this basis alone, he
held that the Appellant was not entitled to claim damages for upkeep costs in
either contract or tort (at [17]).
16 Nevertheless, the Judge proceeded to express the view, albeit by way

of obiter dicta, that there were “cogent policy considerations against finding
liability for upkeep” (at [16]). Chief among his reasons was the sense that
12
there was, in the words of Lord Millett in the House of Lords decision of
McFarlane and another v Tayside Health Board [1999] 3 WLR 1301
(“McFarlane”) at 1345D which the Judge cited at [16] of the Judgment,
“something distasteful, if not morally offensive, in treating the birth of a
normal, healthy child as a matter for compensation”. To this, he added two
more specific concerns. The first was the detrimental impact that an award of
damages might have on Baby P’s well-being; the second was his view any
such award would be antithetical to the essence of a parent-child relationship
(at [16]).
The structure of this judgment
17 Owing to the novelty and the complexity of the matters which were
raised, we invited Assoc Prof Goh Yihan (“Prof Goh”) to assist the court as
amicus curiae. We wish to state from the outset our deep appreciation for the
submissions he put forward, which were comprehensive, elegantly expressed,
and lucidly organised. We derived tremendous assistance from them, as well
as from the submissions put forward by counsel for the parties:
Mr N Sreenivasan SC (“Mr Sreenivasan”) for the Appellant, and Mr Lok Vi
Ming SC (“Mr Lok”) for the Respondents. We do not propose to summarise
the submissions made by the parties at this juncture and will instead address
the relevant submissions in the course of our reasoning and analysis.
18 Initially, the sole issue which was placed before us was simply whether
the upkeep claim was legally sustainable. However, as we observed during the
hearing this is, as a statement of the consequences of parenthood, strikingly
inadequate. It has the effect of selecting – out of the myriad of legally,
morally, and socially significant obligations that attend the institution of
parenthood – only the financial costs of raising a child and focusing on that as
13
the subject of the upkeep claim. This is a problem which is not confined only
to this case but generally afflicts the case-law in this area. During the oral
hearing, we expressed these misgivings and invited further submissions on the
other possible claims that might be advanced in a case such as this. After
receiving these further submissions, and hearing further oral arguments from
the parties, it became clear to us that the remit of the inquiry could and should
be broadened to include two other matters which formed the focus of the
parties’ further submissions, namely, a claim for loss of autonomy and a claim
for punitive damages. We will deal with the claims in this order: (a) upkeep
costs; (b) a potential award for the loss of autonomy; and (c) a potential award
of punitive damages.
Two preliminary objections
19 Before we turn to our detailed analysis, we will first deal with two
preliminary objections which were raised by the parties.
(a) The first is an argument raised by the Appellant.

Mr Sreenivasan initially submitted that the Respondents were
absolutely precluded from resisting the upkeep claim. The argument
was that if the viability of the upkeep claim were adjudicated as an
issue relating to liability (as was submitted to be the case) then it
would not be open to the Respondents to resist the upkeep claim since
they had already admitted to liability in damages and consented to
having judgment entered against them.
(b) The second is an argument raised by the Respondents. Mr Lok

contended that since the specific question submitted by his clients for
determination – and the only question addressed by the Judge – was
whether the upkeep claim was legally sustainable, we did not have the
14
jurisdiction to consider either the issue of a loss of autonomy or that of

punitive damages (even though the Respondents tendered submissions
on both issues). He also pointed out that neither claim (either that for
loss of autonomy or punitive damages) had been pleaded.
20 We reject both arguments. The Appellant’s preliminary objection can

be dealt with briefly. The short answer to this point is simply that the
Respondents have expressly reserved their position on their liability for
upkeep costs. For convenience, we reproduce para 2 of their Defence in full:
Without admitting to all the assertions at paragraphs 11 to 72

of the Statement of Claim, the 1st to 4th [Respondents] will
admit liability in damages to the [Appellant], with such
reasonable damages to be assessed. For the avoidance of
doubt, this admission of liability does not constitute nor is it
to be construed as an admission of the [Appellant’s] claim or
entitlement to claim for the maintenance and upkeep of
Baby P and/or the [Appellant’s] claim or entitlement to claim
for provisional damages for Baby P, whether as set out in
paragraphs 73, 74(f), 75 and 76, or otherwise.
Properly construed, therefore, the Respondents were saying that they conceded
liability in respect of all the heads of claim except for those which related to
the upkeep of Baby P. In our judgment, it is perfectly open for them to contest
the upkeep claim at this juncture.
21 As for the Respondents’ preliminary objection, we consider that it rests

on a fundamental misapprehension of the nature and purpose of O 33 r 2 of the
Rules, under which the present application was brought. O 33 r 2 provides
that:
The Court may order any question or issue arising in a cause

or matter, whether of fact or law or partly of fact and partly of
law, and whether raised by the pleadings or otherwise, to be
tried before, at or after the trial of the cause or matter, and
may give directions as to the manner in which the question or
issue shall be stated. [emphasis added]
15
22 There are three important points to note here. First, this is a power- and
not a jurisdiction-conferring provision: the section plainly assumes that the
court is already seised of jurisdiction in respect of the underlying “cause or
matter” and its purpose is to confer upon the court the power to order “any
question or issue arising in a cause or matter” to be determined preliminarily.
This disposes of Mr Lok’s jurisdictional objection. The short point is that we
have the jurisdiction to consider the further issues canvassed because we are
already seised of the underlying dispute. The only question is whether this
power should be exercised, and on this question, it is well-settled that it ought
to be exercised if it would save substantial time and expenditure (see, for
example, the decision of this court in Federal Insurance Co v Nakano
Singapore (Pte) Ltd [1991] 2 SLR(R) 982 at [25]). In our judgment, this is an
appropriate case for us to exercise our power to enlarge the remit of the
inquiry. As will be clear during the course of our analysis, this will allow
fuller treatment of the issues and allow for a more just outcome. Secondly,
O 33 r 2 of the Rules expressly provides that this power may be exercised in
respect of any matters which arise from the dispute, even matters which are
not pleaded. This deals with Mr Lok’s objection that the additional issues
relate to heads of claim which were not pleaded. Thirdly, it is the court which
is in control of this process. This is critical here because it means that it was
within the power of the High Court to decide on the ambit of the preliminary
question. This is a power which this court retains on appeal because of s 37(5)
of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), which
provides that the Court of Appeal may “give any judgment, and make any
order which ought to have been given” in the court below.
23 It does not matter that the Appellant did not appeal against the Judge’s
decision not to broaden the ambit of the question, because O 57 r 13(4)(a) of
16
the Rules specifies that the powers of the Court of Appeal may be exercised
notwithstanding that no notice of appeal had been given in respect of a
particular part of the decision of the Court below. It also does not matter that
the questions were raised by this court of its own initiative (see, for example,
the decision of this court in Townsing Henry George v Jenton Overseas
Investment Pte Ltd [2007] 2 SLR(R) 597 at [80]). What is critical is that this
court must have all the facts bearing on the new contention and the
Respondents must have been given an adequate opportunity to address us on
it. We are satisfied that this is the case in the present appeal. The additional
questions posed to the parties are pure questions of law in respect of which the
Respondents have been given ample opportunity to address us on, both orally
and in writing.
Summary of our conclusions
24 After careful consideration of the arguments which were presented, we

have come to the view that the upkeep claim should not be allowed. In our
judgment, this is a head of damages which is contrary to public policy and
should not be recognised in Singapore. However, we are prepared to recognise
that, in the circumstances of this case, the Respondents’ negligence has caused
the Appellant to suffer a loss of “genetic affinity”, and that this should be an
actionable head of damage. Finally, while we are prepared to recognise that
punitive damages can, in principle, be awarded for a claim in negligence, we
cannot conclude that such an award is available on these facts. We now
proceed to elaborate on each of our conclusions in more detail.
The upkeep claim
25 The basic question which is before this court can be framed as follows:
Are the expenses which arise in relation to the unplanned birth of a healthy
17
child who was born as a result of the negligence of a medical professional a

compensable head of damage? The difficulty, as eloquently stated by Lax J in
the decision of the General Division of the Ontario Court of Kealey v
Berezowski (1996) 136 DLR (4th) 708 at 731a–d, is that:
… A claim for child-rearing costs juxtaposes the private world

of tort law with a world that is imbued with personal and
public views of morality. It asks whether tort law is bold
enough or foolish enough to embrace as a harm that which we
so clearly regard as a good. It demands that we examine
whether tort theory is compromised or validated depending on
the approach which is chosen. The claim raises questions
about the nature of injury, the limits of the doctrine of
foreseeability and the congruence of this doctrine with the
assessment of damages. Courts have struggled with the novel
question at issue in this case because, in the absence of
legislative guidelines for assessing damages of this kind, they
are driven back on standard principles of negligence law or on
public policy. Both may be inadequate for the task.
26 Although this statement was made in the context of a claim in

negligence, we think that it applies with equal force to claims brought in
contract. Courts in different jurisdictions have arrived at differing conclusions,
based principally on their views of what public policy requires in this context.
We will come to those arguments presently, but before that we will first
examine the basis upon which the Judge denied recovery in this case.
The landscape of reproductive wrongs
27 As the Judge rightly noted, this case is unlike most cases in which
upkeep costs are sought. The premise of the Appellant’s case is not that she
did not want to conceive. Rather, it is quite the opposite – the Appellant
actively desired to have a child and was fully willing to bear the costs of
raising one, although she only planned to have a child that was conceived
using her Husband’s sperm. On this basis alone, the Judge held that the
upkeep claim had to fail. With respect to the Judge, we do not think that this is
18
correct. In order to properly analyse his decision, it is necessary for us to begin

with a broad overview of the decided cases in this area.
Three categories of reproductive wrongs: wrongful life, wrongful birth,

wrongful conception
28 The cases which were cited to us (and to the Judge) all concern claims
for what we shall, for ease of exposition, term “reproductive wrongs”. We will
clarify immediately that what we have in our contemplation are not the full
breadth of claims that may arise out of surgical or medical procedures which
relate to reproductive medicine, but only those where the damage or loss
relates to the unplanned birth of a child. In broad terms, the relevant cases in
this area all possess the following four features (see Stephen Todd, “Wrongful
Conception, Wrongful Birth and Wrongful Life (2005) 27 Sydney Law
Review 525 (“Todd”): (a) there is an allegation of wrongful conduct on the
part of a healthcare professional (whether a doctor or a nurse or otherwise) in
relation to the treatment of a patient or the patient’s partner; (b) by reason of
this, a child has been born; (c) if proper care had been taken, the child would
not have been born; and (d) by reason of the birth either the parents or the
child has suffered damage which consists of, among other things, upkeep
costs.
29 These cases are all acutely difficult because they raise the question of
whether, and if so, to what extent, “the expense associated with the unplanned
… existence of a human being ought to be recognised in law as amounting to
damage of a kind which can found an action” (see Todd at 526). In general
terms, the cases in this area can be divided into three broad categories falling
under the following headings: “wrongful life”, “wrongful birth”, and
“wrongful conception”. We note that the use of these terms is not without
controversy, as they appear to carry with them a negative evaluation of the life
19
which is brought into being (see Todd at 525). We clarify that is not our
intention to espouse any such view, and we use these terms for the sake of
exposition only.
(a) Wrongful life claims are actions brought by the children

themselves (that is to say, the children who are born as a result of the
allegedly wrongful act of a healthcare professional) in circumstances
when the children suffer from some disability or disadvantage. In
bringing such claims, the children argue, in essence, that they would
have been better off not being born at all and that the very fact of their
birth is an injury for which they should be compensated.
(b) Wrongful birth claims are brought by the parents of children

who are born in circumstances where the healthcare professional had
either failed to (i) inform them that the mother was pregnant; or (ii) to
advise them, while the child was in utero, that the foetus would be
born disabled. The essence of such a claim is that the mother would
have terminated the pregnancy had she been informed timeously that
she was pregnant or that the foetus which she was carrying would be
born disabled. In broad terms, the healthcare professional is being held
liable for the wrongful prolongation of a pregnancy – whether it be a
pregnancy that was unwanted from the start or an initially wanted
pregnancy that the mother subsequently wished to terminate.
(c) Wrongful conception claims almost always arise in the context

of sterilisation operations. They are brought by the parents for the
failure of a healthcare professional to perform a sterilisation operation
properly or to properly advise on the efficacy of the procedure (eg, by
advising the parents that the procedure was successful when it was
20
not). The essence of such a claim is that the parents never planned to
have children – hence, it is the “conception” that is unwanted – and,
concomitantly, never planned to undertake the commitments of
parenthood. Wrongful conception cases may be distinguished from
wrongful birth cases because the act which is complained of (that is to
say, the negligent sterilisation or the negligent advice) takes place pre-
conception; whereas in wrongful birth cases, the tortfeasor’s wrongful
act takes place post-conception.
30 It is immediately apparent that the present case does not fit neatly into
any of the aforementioned categories. The wrongful life cases are plainly not
relevant because the plaintiff in this case is the mother and not the child.
Wrongful life cases involve acutely difficult questions of morality (whether a
life is worth living) and philosophy (whether it is possible to compare a state
of existence with one of non-existence). In the only local reported decision on
the subject, recovery was denied on the ground of public policy (see the
Singapore High Court decision of JU and another v See Tho Kai Yin [2005]
4 SLR(R) 96). In our assessment, the wrongful birth cases are also not
material because, as the Judge noted, the Appellant neither pleaded nor did she
ever aver that she would have terminated the pregnancy if she had been
informed of the mix-up ahead of time (this is the gist of a wrongful birth
claim). The Appellant has not disputed the correctness of the Judge’s decision
on this point on appeal, and for our part, we think that the Judge was right to
reject such an argument.
31 This leaves the wrongful conception cases. The present case resembles
the wrongful conception cases in the sense that the Appellant’s core argument
is that if the Respondents had not been negligent, Baby P would not have been
born and the Appellant would not now be put to the expense of raising Baby P.
21
However, as the Judge observed, there is an important point of difference: The

Appellant, unlike the plaintiffs in the wrongful conception cases, did want a
child. The significance of this will be considered shortly.
Wrongful fertilisation
32 While cases of mix-ups in IVF procedures are, regrettably, not

uncommon (see, generally, Leslie Bender, “‘To Err is Human’ ART Mix-Ups:
A Labor-Based, Relational Proposal” (2006) 9 J Gender, Race & Just 443 for
documented cases of such mix-ups), there are few reported cases on the
subject in the law reports. Leeds Teaching Hospitals NHS Trust v Mr A and
others [2003] EWHC 259 (QB) (“Leeds”), a decision of the English High
Court, is one of the rare few. It was a case involving facts similar to the
present. Two couples (referred to in the judgment as Mr and Mrs A and Mr
and Mrs B, respectively) sought IVF treatment. Due to a mistake, Mr B’s
sperm was used to inseminate Mrs A’s egg and the resultant embryo was
implanted in her womb. Mrs A subsequently gave birth to twins and the
mistake was discovered. When the matter came before the court, the issue was
the legal parentage of the children. Thus, the judgment itself is of little
relevance to this case. However, a pair of commentators broached the
possibility that a claim for upkeep costs could have been mounted in such a
situation (see Mary Ford and Derek Morgan, “Leeds Teaching Hospitals NHS
Trust v A – Addressing a misconception” (2003) 15 Child & Fam L Q 199)
and their article contains a succinct statement of the differences, but also the
essential similarity, between that case and cases involving wrongful
conception (at 203):
… Any wrongful conception action by Mrs A would accordingly

seek damages, not on the basis that a conception took place,
but rather on the basis that this conception took place … [t]o
use deliberately provocative language, the ‘harm’ would
22
consist not in the conception and subsequent birth of a child

to the woman who did not wish to become a mother, but in
the conception and birth of these children to a woman who
wished to become a mother to different children. [emphasis in
original]
33 To the best of our knowledge, there has only been one wrongful
fertilisation case in which the subject of upkeep costs was considered by a
court of law. This is the decision of the New York State Supreme Court in
New York County in Andrews v Keltz 15 Misc 3d 940 (2007) (“Andrews”),
where the mistake likewise consisted of the insemination of the plaintiff-
mother’s egg with the sperm of third party stranger. The plaintiff delivered a
healthy child and subsequently brought a claim for upkeep costs. Her claim
was dismissed on the basis that public policy precluded recovery for the
ordinary costs of raising a healthy child. The court did not elaborate on the
policy reasons in any great level of detail and merely held itself to be bound
by the decision of the New York Court of Appeals in O’Toole v Greenberg,
477 NE 2d 445 (1985) and Weintraub v Brown, 98 AD 2d 339 (1983), both of
which were cases involving wrongful conception.
34 Leeds, Andrews, and the present case may be labelled as ones

involving “wrongful fertilisation” (see 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). Cases belonging in this category arise where
assisted reproduction technology, usually IVF, is used and a claim is brought
by the gestational mother (that is to say, the mother who bears the child to
term) and/or her partner in circumstances where a healthcare professional uses
the wrong gametes in the fertilisation procedure or where the “wrong” embryo
is implanted in the womb of the gestational mother and carried to term. In so
far as the claim is one for upkeep, the essence of the claim would be that the
23
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.
“The [Appellant] wanted a second child all along”
35 At [15] of the Judgment, the Judge stated as follows:
Second, the [Appellant] had wanted a second child all

along. The contest of legal authorities before me was the
differing views between McFarlane ([10] supra) and Cattanach
([10] supra). … But there is a crucial difference between those
cases and the present application before me: in the present
case, Baby P was not an unwanted birth in the sense that the
[Appellant] mother did not want to have a baby at all. The
[Appellant] just wanted a baby conceived with her husband’s
sperm. This is an important distinction. It cannot be said
that the [Appellant] and her husband were not
contemplating having to expend money to bring up a
child. On the contrary, the reason they engaged the
[Respondents] was so that they could have a child.
[emphasis added in italics, bold italics, and underlined bold
italics]
36 From this passage, it would appear that the Judge regarded the fact that
the Appellant wanted a child and was willing to assume the financial
consequences of childrearing as being fatal to her claim for upkeep costs. The
Judge did not elaborate on the reasons why, but regard may usefully be had to
what he said in the Striking Out Decision. The narrow question before him
then was simply whether the upkeep claim should be struck out on the basis
that it was legally unsustainable. At that time, liability had yet to be
determined and the Judge refused the application on the ground that the issues
of liability and damages were so inextricably linked that the matter ought to
proceed to trial (see the Striking Out Decision at [13]). Nevertheless, he went
on to opine why he thought the upkeep claim had to fail in the following terms
(at [15]):
24
… It is understandable that the [Appellant] and her [Husband]

would be aggrieved by the [Respondents’] error, and they
might be entitled to general damages for that distress.
However, whether the [Respondents] were negligent or not and
whether they were in breach of contract or not, the [Appellant]
and her [Husband] would have to expend money to bring up
the child conceived through IVF. Expenses for the upkeep of
the child, whether it was Baby P or another, cannot be
considered damage or loss arising from the [Respondents’]
conduct. … [emphasis added in italics and bold italics]
37 From these two extracts, it appears that the point that the Judge was
making was one about causation. What he was saying was that even if the
Respondents had not been negligent, the Appellant and her Husband would
still have spent the same amount of money raising a child anyway – thus, it
had not been shown that “but for” the Respondents’ negligence, the upkeep
expenses would not have been incurred. Mr Lok puts the argument in the
following way. He submits that there is no evidence that the Appellant had
“suffered additional upkeep costs above and beyond what would ordinarily
have been incurred for the upkeep of a healthy child” [emphasis in the
original] because the Appellant wanted a child and did in fact receive a
healthy child – Baby P – whom she would not spend any more raising than she
would spend on a child who was biologically related to herself and her
Husband. On this basis, he argues that the Appellant did not in fact suffer any
recoverable loss. With respect, we cannot agree with these arguments.
38 The fundamental error in the Judge’s analysis, in our respectful view,

is that he ignores the purpose for which the expenses were (and would have
been) incurred. The approach taken by the Judge is reminiscent of an
argument which was taken in the wrongful birth case of Salih and another v
Enfield Health Authority [1991] 3 All ER 400 (“Salih”). The plaintiffs in that
case were the parents of three children, and they planned to have a fourth
child. During the pregnancy, one of their daughters was diagnosed with
25
rubella and they became concerned that the mother, too, might have contracted
rubella with deleterious consequences for her as yet unborn child. They sought
medical advice but were negligently informed that the mother was free from
infection. The mother subsequently delivered a child, Ali, who suffered from
congenital rubella syndrome and was born severely disabled as a result. As a
consequence, the plaintiffs decided not to have any further children and in fact
terminated a subsequent pregnancy which was unplanned. The plaintiffs then
brought a wrongful birth claim for upkeep expenses on the ground that the
mother would have terminated the pregnancy if she had been correctly
diagnosed with rubella. At the time, the weight of authority was in favour of
allowing the claim, so the argument which was taken on appeal was that the
quantum of the award should be reduced to account for the costs that the
plaintiffs would otherwise have spent raising a healthy child which they would
have had. This argument was accepted by the English Court of Appeal.
39 Butler-Sloss LJ and Sir Christopher Slade both saw no issue of

causation here, since the subject matter of the claim was the basic cost of
maintaining Ali, and this cost would never have been incurred had the
defendants given proper advice since the pregnancy would have been
terminated (at 404d per Butler-Sloss LJ; at 407f–g per Sir Christopher Slade).
However, both of them thought the fact that the plaintiffs would have had
another child but chose not to because of the birth of Ali was relevant to the
quantification of their loss. Butler Sloss LJ explained the point as follows (at
405a–b):
… It is said that the costs incurred as a result of the birth

relate to this child and cannot be equated with equivalent
costs in respect of another child. I do not agree. Unless a child
is looked at in isolation without reference to the rest of the
family, which I do not believe is the right approach, the costs
of a child have to be considered within the family unit. It is not
the action of the child with which we are concerned but the
26
action of the parents. In this case the termination of a later

pregnancy points to the likelihood of further children being
born to the wife and requiring financial support from the
parents within the family. The fact is that the parents will now
not incur the costs of further children. They have to that
extent reduced their future expenditure. They are being
compensated for the additional expenditure of Ali’s special
needs. … The contemplated cost in this case, however,
would be spent on an identical purpose, in pari materia
with the costs of Ali and cannot be said to be merely
collateral. The decision of the parents not to have another
child and the consequential saving of likely future expenditure
is, in my judgment, a relevant consideration upon which the
defendants were entitled to rely and the judge was in error in
not taking it into account. On the facts of this case it would
extinguish this head of damages. [emphasis added in italics
and bold italics]
Mann LJ concurred in the ultimate result, but he thought that the issue was one
of causation (at 406h–j):
… I regard this as being one of those cases which are now rare
in the field of actions for negligence where it is necessary to
inquire whether the defendants’ negligence was causative of
the asserted loss. Upon the facts of this case the answer to
that question must be No. Had the defendants not been
negligent, Mrs Salih’s pregnancy would have been terminated
and she would have sought another pregnancy. It is probable
that she would again have become pregnant. That it is
probable is shown by the occurrence of the unplanned
pregnancy which was terminated. The loss represented by the
capitalised cost of maintenance would thus probably have been
incurred by the plaintiffs in any event. That being so the
negligence is not causative of the loss. [emphasis added]
40 Following McFarlane, the result in Salih is correct: upkeep claims

brought in wrongful birth cases will sound only in the damages attributable to
the additional cost of raising a disabled child (see below at [66]). However,
the reasoning adopted by the court in Salih is one which we, with respect, have
considerable difficulty with. As a starting point, we cannot accept that there is
any issue as to causation here. As Butler Sloss LJ and Sir Christopher Slade
pointed out, the claim in question was for the cost of maintaining Ali and not
27
some other child, and this cost would not have been incurred but for the
defendants’ negligence. There therefore cannot be an issue as to causation.
However, this reasoning applies equally to the argument on quantification of
loss. The problem with the reasoning of the majority, with respect, is that it
rests on a tenuous equivalence: that the costs that they would have incurred in
raising another child are “identical [in] purpose [and] in pari materia with the
costs of Ali” (see Salih at 405b per Butler-Sloss LJ). This can only be correct,
as Lord Morison pointed out in McLelland v Greater Glasgow Health Board
[2001] SLT 446 at 457 (a decision of the Inner House of Session and where,
although Lord Morison was in a minority, only he in fact expressed a view on
the correctness of Salih), if the claim is regarded as one “made on behalf of the
‘family unit’, rather than as one made in respect of an individual” (at 457). It
is only if one takes this perspective that it can be possible to say that the
expenses incurred are in any way equivalent. But the problem is that the claim
in Salih (like the claim here) was not framed in such an abstract way. Instead,
each of Ali’s parents had brought a claim in their individual capacities for the
costs of maintaining a child with disabilities when neither of them
contemplated having to do so (and indeed, this was the very result they sought
to avoid and in respect of which they had sought advice from the defendants).
41 With respect to the Judge, to say that the Appellant “had wanted a
second child all along” is overly simplistic. The Appellant sought IVF not in
order to beget a child irrespective of paternity (just so that she could have an
addition to “her family unit”) but to have a child with her husband. This
makes all the difference. The short point is this. There is no question that if the
IVF procedure had been correctly performed and the Appellant had given birth
to a child who was genetically related to herself and her Husband, she would
have been perfectly willing to bear the costs of raising that child. However, it
28
surely cannot be said that she or her Husband ever contemplated (let alone
intended) having to raise a child that was not completely theirs, particularly
one who had been born to them in the present circumstances (see Margaret
Fordham, “An IVF Baby and a Catastrophic Error—Actions for Wrongful
Conception and Wrongful Birth Revisited in Singapore” [2015] Sing JLS 232
(“Catastrophic Error”) at 237). In this essential detail (and at the risk of
putting the matter somewhat indelicately), the present case is like the wrongful
conception cases in the sense that the Appellant’s argument is that, but for the
Respondents’ negligence, Baby P would not have been born and the Appellant
would not now be put to the expense of raising her. We also observe that in
Andrews (which is, as far as we are aware, the only wrongful fertilisation case
in which the issue of upkeep costs was litigated), the defendants did not argue
that the upkeep costs were not causally linked to the defendants’ negligence.
42 In explaining why the quantum of damages awarded to the plaintiffs in

Salih had to be reduced, Butler-Sloss LJ compared the position of the parents
with that of the plaintiff in Cutler v Vauxhall Motors Ltd [1971] 1 QB 418
(“Cutler”). In Cutler, the plaintiff suffered a grazed ankle due to the
defendant’s negligence. The wound became ulcerated because the plaintiff had
varicose veins and an operation had to be performed to remove the veins. The
English Court of Appeal held that the cost of the operation was not
recoverable because the evidence was that the operation would have been
necessary in any event (albeit at a later date). With respect, we think the
comparison to be quite inapposite. The difference between Cutler on the one
hand and wrongful birth or wrongful fertilisation claims (such as Salih) on the
other is the fact that the former concerned a pre-existing condition. As one
commentator pointed out, the plaintiffs in Salih were not persons whose
financial condition was “already damaged by their plan to have a family of
29
four children” (see P R Glazebrook, “Unseemliness Compounded by

Injustice” [1992] CLJ 226 at 227). The fact that they elected, once they found
out that Ali was born handicapped, to limit the size of their family was a
matter entirely personal to them and should not have been of any concern to
the court in assessing the damages arising out of the defendants’ negligence.
Indeed, to hold otherwise would be to compound the injustice: it would be
tantamount to suggesting that the parents had a duty to mitigate their losses by
forgoing having children whom they would otherwise have had – this is a
conclusion which is repugnant in the extreme.
43 What this shows is that the question of whether upkeep costs are an
actionable head of damage cannot, as the Judge thought, be avoided. We will
now take that question in two parts, beginning first by setting out the general
analytical framework to be applied before turning to the arguments proper.
The concept of actionable damage
44 From the outset, it is important to distinguish between two distinct but

related concepts. The first is that of “damage”, which refers to the injury that a
claimant must prove in order to make out a case for recovery. This arises out
of “an interference with a right or interest recognised as capable of protection
by law” (see the decision of the High Court of Australia in Cattanach and
another v Melchior and another (2003) 199 ALR 131 (“Cattanach”) at [23]
per Gleeson CJ). The second is that of “damages”, which refers to the
monetary sum that is payable consequent upon the proof of that injury (at
[23]). Logically, the former is anterior to the latter: a claimant must first
establish that he has suffered injury of a sort that the law may take cognisance
of before the discussion can then turn to the compensation which might be
awarded in respect of that injury. Returning to the three issues which we
30
identified above at [18], the first two issues – upkeep costs and loss of
autonomy – relate to the concept of damage. They each raise the question of
whether a particular type of damage is actionable. The third issue – punitive
damages – relates to the concept of damages. It engages the question of the
proper basis upon which an award for those admitted heads of damage should
be assessed.
45 The concept of “damage” is nebulous and defies easy definition. In the

House of Lords decision of Rothwell v Chemical & Insulating Co Ltd and
another and other appeals [2008] 1 AC 281 (“Rothwell”) at [7],
Lord Hoffmann defined it as “an abstract concept of being worse off,
physically or economically, so that compensation is an appropriate remedy”.
This definition is a helpful start because it captures the essence of the concept
of damage, which is the notion of being “worse off”. It was for this reason that
in Rothwell the court refused to recognise asymptomatic physical changes to
one’s body that had no effect on one’s health, whether on its own or in
combination with a general anxiety over the onset of a disease, as actionable
damage. However, this definition also suffers from several problems. One is
the restriction of harms to the physical and the economic – if this was intended
to leave out psychiatric harm (which cannot have been the intention), then the
definition is incomplete. The second problem lies in its circularity. It amounts,
at the end of the day, to the statement that “damage” is detriment of a sort
which the law will grant damages for. This might be true, but it is not, with
respect, particularly helpful. What it does reveal, however, is that 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” (see Donal
Nolan, “Damage in the English Law of Negligence” [2013] 4 JETL 259 at
267).
31
46 The question whether a particular head of damage is actionable will

depend greatly on the cause of action raised (see, for example, the English
Court of Appeal decision of E (A Minor) v Dorset County Council and other
appeals [1994] 3 WLR 853 at 876D per Evans LJ). For instance, the law of
contract does not generally award recovery for reputational damage and
mental distress arising from a breach of contract (see the House of Lords
decision of Addis v Gramophone Co Ltd [1909] AC 488 (“Addis”); though cf
below at [53]), while the recovery of damage to reputation is a sine qua non of
an action in defamation. Differences also exist between torts. For example, the
causing of substantial inconvenience and discomfort resulting in the loss of the
amenity value of land constitutes damage in the tort of private nuisance, but
not in the tort of negligence; and, conversely, personal injury is actionable in
negligence but not in nuisance (see, for example, the House of Lords decision
of Hunter and others v Canary Wharf Ltd and other appeals [1997] 2 WLR
684 at 699C–D per Lord Hope of Craighead). Different causes of action will
also treat the question of actionability at different stages of the analysis, even
if the factors that are taken into account are the same. Given that the Appellant
has brought an action in both negligence and contract, we will discuss the
concept of actionability in each separately.
Actionable damage in the tort of negligence
47 The tort of negligence is only actionable upon proof of damage. As

Lord Scarman put it in the House of Lords decision of Sidaway v Board of
Governors of the Bethlem Royal Hospital and Maudsley Hospital and others
[1985] AC 871 at 883H, damage is the “gist of the action” of negligence.
What this means is that no action can lie if there is no proof of a compensable
loss. For a long time, the law of negligence dealt with the requirement of
actionable damage as a question of policy to be dealt with under the heading
32
of duty of care (see Cattanach at [21]–[22] per Gleeson CJ) – that is to say,
the issue of whether a particular type of injury is an actionable head of damage
resolves itself to the question: Did the defendant owe the plaintiff a specific
duty of care in respect of this particular head of loss? As Lord Hoffmann put
it in the House of Lords decision of South Australia Asset Management v York
Montague Ltd (sub nom Banque Bruxelles Lambert SA v Eagle Star Insurance
Co Ltd) [1997] AC 191 at 211:
… A duty of care such as the valuer owes does not, however,

exist in the abstract. A plaintiff who sues for breach of a duty
imposed by the law (whether in contract or tort or under
statute) must do more than prove that the defendant has
failed to comply. He must show that the duty was owed to him
and that it was a duty in respect of the kind of loss which he
has suffered. [emphasis added]
A similar approach is taken in Australia, where Brennan J held that “a

postulated duty of care must be stated in reference to the kind of damage that a
plaintiff has suffered and in reference to the plaintiff of a class of which the
plaintiff is a member” (see the decision of the High Court of Australia in
Sutherland Shire Council v Heyman and another (1985) 60 ALR 1 at 48).
48 Given that the question of actionable damage is to be dealt with as an

issue concerning the existence of a duty of care, the framework set out by this
court in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology
Agency [2007] 4 SLR(R) 100 (“Spandeck”) applies. In Spandeck at [71], we
clarified that a single test should be applied to determine the existence of a
duty of care in negligence, irrespective of the head of claim pleaded. In broad
terms, the approach to be adopted is this. If a particular head of damage is
factually foreseeable, the courts will apply a two-stage test to determine
whether a duty of care exists. At the first stage, it will consider whether there
is sufficient legal proximity between the plaintiff and the defendant. If there is,
33
the court then moves to the second stage, where it considers whether there are
any policy considerations which (in the main) militate against the imposition
of a duty.
49 As we explained in Ngiam Kong Seng and another v Lim Chiew Hock

[2008] 3 SLR(R) 674 (“Ngiam”) at [42], two different and distinct conceptions
of “policy” apply at each stage of the Spandeck test. At the first stage, what
the court is concerned with are matters of “legal policy”, namely, whether the
relationship between the parties possesses the requisite relational incidents
necessary for a duty of care to arise (at [43]) – although it should be noted that
the court preferred to avoid using the term “policy” and advocated using the
rubric of “proximity” instead (at [43]). The concern, at this stage, is with
interpersonal justice between the parties and the question is whether it would
be proper to recognise that this particular defendant owed this particular
plaintiff a duty of care (see also Andrew Robertson, “Justice, Community
Welfare and the Duty of Care” (2011) 127 LQR 370 (“Robertson (2011)”) at
378). If the answer is in the affirmative, a prima facie duty of care is
established. At the second stage, the court is concerned with matters of “public
policy”. The matters which fall under the broad heading of “public policy”
comprise a miscellany of disparate issues of juristic concern which include
considerations of public morality, social philosophy, and economics. The
focus at this stage is on broader societal considerations rather than matters
which bear only on the interests of the parties inter se and the question is
whether there are concerns of community welfare which would require the
denial of a duty of care that would otherwise arise (see Ngiam at [44] and
Robertson (2011) at 371).
50 The issue of whether a particular head of damage is actionable is one

which affects not just the parties to the instant suit, but all of society and, thus,
34
the analysis usually takes place at the second stage of the Spandeck analysis. A
good illustration would be the decision of this court in Man Mohan
Singh s/o Jothirambal Singh and another v Zurich Insurance (Singapore) Pte
Ltd (now known as QBE Insurance (Singapore) Pte Ltd) and another and
another appeal [2008] 3 SLR(R) 735. The appellants in that case were parents
who had lost both of their children in a car accident caused by the second
respondent. The appellants brought suit and claimed damages for a number of
things including the cost of fertility treatment that they underwent following
the accident in the hope of begetting more children. The High Court judge
disallowed the claim for fertility treatment and this decision was affirmed on
appeal. At [51], we explained why the recognition of such a head of damage
(for fertility treatment to “replace” a deceased loved one) would be contrary to
public policy:
In essence, in challenging the Judge’s decision to disallow

their claim for the cost of fertility treatment, the appellants are
asking this court to recognise that they have a right at common
law to replace their deceased sons (Gurjiv and Pardip), who
were all the children that they had. We do not believe that we
can or should recognise such a right, as a matter of both law
and policy, even though we are deeply sympathetic towards
the appellants’ plight. Human beings are unique. The law
makes provision for damages to alleviate the pain and
suffering arising from the loss of a loved one, but that is the
furthest extent of compensation that the law permits. As a
matter of policy, defendants should not be liable for the costs of
“replacing” a loved one since there is no fundamental or legal
right to “replace” a deceased person. … [emphasis added]
51 We observe that there has been a trend in recent scholarship, beginning

perhaps with an influential article published in the Law Quarterly Review
nearly 30 years ago (see Jane Stapleton, “The Gist of Negligence” (1988)
104 LQR 213), for the requirement of actionable damage to be dealt with as a
standalone requirement instead of being dealt with as a subset of the “duty of
care” analysis (see also Donal Nolan, “New Forms of Damage in Negligence”
35
(2007) 70 MLR 59 (“New Forms of Damage”) as well as Craig Purshouse,

“Judicial reasoning and the concept of damage: Rethinking medical
negligence cases” (2015) 15 Medical Law International 155 at 157). There is
much to be said about the conceptual tidiness of such an approach, and it was
also the approach adopted in Rothwell. However, we think that, ultimately, as
long as the policy factors are ventilated openly and explicitly, as this court
stressed at [85] of Spandeck ought to be done, the same conclusion should be
reached irrespective of whether the court treats the requirement of actionable
damage as a separate step in the inquiry or addresses it as a component of the
duty of care analysis.
Actionable damage in an action for breach of contract
52 Generally, when one speaks of “policy” in the context of the law of

contract what comes to mind is the doctrine of the “defence of illegality and
public policy”. In this context, “public policy” plays a wholly negative role: it
provides a basis for the court to hold a contract to be void and unenforceable
because of the wider public interest (see the decision of this court in Ting Siew
May v Boon Lay Choo and another [2014] 3 SLR 609 at [24]). The role played
by “public policy” in this narrow sense is limited in two significant ways.
First, it is employed as a vitiating factor to bar the enforceability of the
contract; it is not used to deny recovery of a particular head of loss. Second,
the established heads of public policy are all referable to the objects of the
contract and do not fix on the head(s) of claim asserted. For example, public
policy would deny the validity of contracts savouring of maintenance or
champerty, contracts to deceive public authorities, or contracts concluded with
the object of committing an illegal act (see, generally, The Law of Contract in
Singapore (Academy Publishing, 2012) (“The Law of Contract”) at ch 13).
36
53 However, policy also has, in our view, a role (albeit a limited one) to
play in contract outside the defence of illegality and public policy. In
particular, contrary to what Mr Sreenivasan submitted, policy has long had a
role to play in regulating the types of damages which are recoverable in an
action for breach of contract. In general, the law of contract concerns itself
with the remediation of pecuniary damage, and the scope for recovering
damages for non-pecuniary loss in contract is greatly limited. This is the
reason for the well-established rule that the law of contract does not generally
award recovery for reputational damage and mental distress arising from a
breach of contract (see, generally, Addis). In the English Court of Appeal
decision of Watts and another v Morrow [1991] 1 WLR 1421 at 1445F,
Bingham LJ (as he then was) explained that these restrictions were not
“founded on the assumption that such reactions are not foreseeable, which
they surely are or may be, but on considerations of policy” [emphasis added].
One of the policy reasons for this rule is that the law of contract has long
concerned itself with commercial affairs, in which contract-breaking is, as
explained by Lord Cooke of Thorndon in the House of Lords decision of
Johnson v Gore Wood & Co [2001] 2 WLR 72 at 108C–D, “an incident of
commercial life which players in the game are expected to meet with mental
fortitude” (although cf The Law of Contract, especially at para 21.112, as well
as Andrew B L Phang and Goh Yihan, Contract Law in Singapore (Wolters
Kluwer Law & Business, 2012) at paras 1539−1540).
54 However, this justification of course does not apply to tort. This leads
us to an important point, which is that while policy guides the recoverability of
damages in both contract and tort, it does not operate in precisely the same
way in both. There are considerations which might bar recovery only under
contract but not in tort, and vice versa. The reason for this is that contract and
37
tort are founded on different principles and pursue different policies. The
former deals with obligations which are voluntarily assumed and has as its
primary object the enforcement of parties’ bargains; the latter deals with
obligations imposed by the general law and is primarily concerned with the
prevention of harm. This is a point which we shall return to at [102]–[105]
below. With that, we now turn to the authorities on the recovery of upkeep
costs proper.
The foreign authorities
55 In their submissions, the parties canvassed a wide arc of practice

spanning a multitude of decisions from both common law as well as civil law
jurisdictions decided during the last fifty years. We are very grateful for the
assistance rendered. As noted above, almost all of the decisions relate to cases
of wrongful conception, but we consider that the principles articulated therein
will be of use to us. Of necessity, we cannot set out everything, although we
have considered all the relevant material in reaching our decision. What we
propose to do is to limit ourselves only to consideration of the material from
common law jurisdictions, focusing in particular on the decisions emanating
from the United Kingdom (“UK”) and Australia, for that is where this subject
has received detailed treatment in the apex courts of those jurisdictions.
56 Before we commence our review of these decisions, we consider it

important to clarify the nature and purpose of this exercise. In McFarlane,
Lord Steyn issued the following reminder prior to undertaking his own survey
of the state of the authorities at the time (at 1317F–G):
… the discipline of comparative law does not aim at a poll of

the solutions adopted in different countries. It has the
different and inestimable value of sharpening our focus on the
weight of competing considerations. And it reminds us that
38
the law is part of the world of competing ideas markedly

influenced by cultural differences. …
57 We bear this in mind as well. The question of recoverability is one for

the courts of each jurisdiction to answer for themselves, having regard to the
social mores and values of the legal culture and the times in which they
inhabit. What we hope to achieve through this small conspectus is to distil the
principles and competing policies of the law which other courts have
identified and struggled to reconcile. With that in mind, we turn, first, to
consider the cases from the UK.
The UK
58 Several leading commentators, writing in 2013, observed that the law

on the recovery of upkeep costs “has followed a course of sinewave
appearance in the last 35 years or so” (see Mason and McCall Smith’s Law
and Medical Ethics (Kenyon Mason, Graeme Laurie, Alexander McCall
Smith eds) (Oxford University Press, 2013) at para 10.13). A useful starting
point is the decision of the English High Court in Udale v Bloomsbury Area
Health Authority [1983] 1 WLR 1098 (“Udale”), which involved – as many of
these cases do – an unsuccessful sterilisation operation. The plaintiff
conceived a child and delivered a healthy boy who, as the judgment records,
was loved and accepted into the family. After her pregnancy, the plaintiff
brought suit against the Area Health Authority and claimed, among other
things, damages for pain and suffering arising from the pregnancy and
childbirth as well as upkeep costs. Jupp J allowed the claim for pain and
suffering but denied the claim for upkeep costs. His decision was grounded
firmly in public policy (at 1109D–G):
The considerations that particularly impress me are these:

(1) It is highly undesirable that any child should learn that a
court has publicly declared his life or birth to be a mistake – a
39
disaster even – and that he or she is unwanted or rejected.

Such pronouncements would disrupt families and weaken the
structure of society. (2) A plaintiff such as Mrs. Udale would
get little or no damages because her love and care for her child
and her joy, ultimately, at his birth, would be set off against
and might cancel out the inconvenience and financial
disadvantages which naturally accompany parenthood. By
contrast, a plaintiff who nurtures bitterness in her heart and
refuses to let her maternal instincts take over would be
entitled to large damages. In short virtue would go
unrewarded; unnatural rejection of womanhood and
motherhood would be generously compensated. This, in my
judgment, cannot be just. (3) Medical men would be under
subconscious pressure to encourage abortions in order to
avoid claims for medical negligence which would arise if the
child were allowed to be born. (4) It has been the assumption
of our culture from time immemorial that a child coming into
the world, even if, as some say, “the world is a vale of tears,” is
a blessing and an occasion for rejoicing.
As will be seen, these four reasons have formed the standard bases for the
rejection of upkeep claims worldwide (see J K Mason, The Troubled
Pregnancy: Legal Wrongs and Rights in Reproduction (Cambridge University
Press, 2007) (“The Troubled Pregnancy”) at p 108).
59 However, a reversal in trend, so to speak, began almost immediately.

In the English High Court decision of Thake and another v Maurice [1986]
2 WLR 215 (“Thake (HC)”), the first plaintiff underwent a vasectomy. The
procedure was initially successful, but following a natural process known as
“recanalisation”, the procedure reversed itself. This was not detected by the
defendant doctor, who negligently advised the plaintiffs that they could have
sexual intercourse without the use of contraceptives without fear of
conception. Soon after, the second plaintiff conceived and delivered a child.
She brought suit in both contract and tort, seeking to recover the cost of
raising the child. Peter Pain J found the four reasons given by Jupp J in Udale
to be unconvincing and allowed the claim for upkeep costs. “[S]entiment”, he
said, had to be placed firmly to one side; and in a now-memorable passage, he
40
remarked that “every baby has a belly to be filled and a body to be clothed” (at
230F). However, he held that a set-off had to be made in order to account for
the joy that the birth of the child had brought. He achieved this by disallowing
the claim for ante-natal pain and suffering arising out of the pregnancy itself,
holding that this should be set off against the joy of new life, and did not
reduce the quantum of upkeep costs sought.
60 By the time Thake (HC) was heard on appeal, the English Court of
Appeal had already handed down its decision in Emeh v Kensington and
Chelsea and Westminster Area Health Authority and others [1985] 2 WLR
233 (“Emeh”), where it unanimously rejected the public policy reasons
articulated in Udale. For this reason, the defendant in Thake (HC) did not take
up the point about public policy on appeal (probably considering, quite rightly,
that the argument would have been a non-starter), and confined himself only
to disputing the findings made by Pain J on liability. On this basis, the appeal
was dismissed and the decision of Pain J was unanimously affirmed (see
Thake and another v Maurice [1986] 2 WLR 337 (“Thake (CA)”)), save only
that the appellate court reversed Pain J on the issue of the set-off and allowed
the claim for ante-natal pain and suffering. Following Emeh and Thake (CA),
the position in both England and Wales and Scotland appeared to be well-
settled. For 15 years thereafter, the courts regularly awarded damages for
upkeep costs (see The Troubled Pregnancy at pp 110–111). However, this
changed in 1999, when the House of Lords handed down its seminal decision
in McFarlane.
(1) McFarlane: healthy parents and healthy child
61 The facts of McFarlane were, in a sense, entirely unremarkable. A

vasectomy was performed on Mr McFarlane, but it turned out to be
41
unsuccessful. After the operation, he was informed that his sperm count was
negative and that he could resume sexual intercourse without the use of
contraceptives and he did so. Soon after, Mrs McFarlane became pregnant and
delivered a healthy daughter, which the judgment also records as having been
accepted into the family with “love and joy” (at 1341C). An action in
negligence was brought against the defendant-hospital and, in the usual way,
two heads of claim were asserted: the first was what was referred to as the
“mother’s claim” for pain and suffering arising out of the pregnancy and the
childbirth; the second was the “parents’ claim” for upkeep costs. The former
was allowed by a majority of 4-1; the latter was unanimously disallowed. One
difficulty with McFarlane is that even though the law lords were agreed on the
result, they spoke in vastly different terms.
62 It will be helpful to begin with the speech of Lord Millett, for he was
the only one of the five law lords to reject the mother’s claim entirely. He
admitted that, as a factual proposition, the birth of a child is “a mixed
blessing” – in his words, it “brings joy and sorrow, blessing and
responsibility” (at 1347G–H). For this reason, individuals might elect to
eschew parenthood, and it would be perfectly open for them to do so.
However, as a matter of legal policy, he held that “society itself must regard
the balance as beneficial. It would be repugnant to its own sense of values to
do otherwise. It is morally offensive to regard a normal healthy baby as more
trouble and expense than it is worth” (at 1347H). In an oft-quoted line, he
stressed, drawing on the language of the law of restitution, that the plaintiffs
could not be allowed “by a process of subjective devaluation, to make a
detriment out of a benefit” (at 1346F). Unlike the other law lords, however, he
saw this chain of logic as leading inexorably to the conclusion that the
mother’s claim should also be disallowed in its totality. As he explained, the
42
“only difference between the two heads of damage claimed is temporal” (at
1348B). Ultimately, he explained, both the mother’s claim for damages for
pain and suffering and the parents’ claim for upkeep costs flowed from the
fact of the child’s birth, the consequences of which the law was bound to
regard as not sounding in damages.
63 The remaining law lords adopted a narrower approach. They eschewed

the broad policy-based analysis adopted by Lord Millett and preferred, instead,
to rest their decision on what they considered to be the ordinary principles of
the law of negligence. Lord Clyde considered that the award of upkeep costs
would “[go] beyond what should constitute a reasonable restitution for the
wrong done” (at 1340B). His reasoning, in essence, proceeded in three parts:
(a) the object of compensation was to place the plaintiffs in a position as if no
wrong had been committed; (b) it was impossible for such an exercise to be
carried out here because the benefits received by the plaintiffs from the birth
of the child were unquantifiable and no set-off could be effected (at 1337H);
and (c) in conclusion, it would not be reasonable or proportionate for the
plaintiffs to enjoy the blessings of parenthood but be relieved of the
obligations which it necessarily entails (at 1340B).
64 Lord Slynn of Hadley, Lord Steyn, and Lord Hope were each troubled
by the fact that the claim for upkeep appeared to be one for pure economic
loss. On this basis, they approached the issue on the footing that the question
to be considered was whether the defendant owed the plaintiffs a duty of care
to avoid the costs associated with the raising of a child. In their own way, each
answered this question in the negative. Lord Slynn adopted the approach set
out in the leading House of Lords decision of Caparo Industries plc v
Dickman and others [1990] 2 AC 605 (“Caparo”) which sets out a “three part
test” for determining the existence of a duty of care. In broad terms, a duty of
43
care will be found under the Caparo approach where (a) the harm to the victim
was foreseeable; (b) there is a relationship of proximity between the parties;
and (c) the court considers that it is “fair, just and reasonable” for a duty of
care to arise. In this regard, the learned law lord concluded that the mother’s
claim failed at the last hurdle: he held that it would not be “fair, just or
reasonable to impose on the doctor or his employer liability for the
consequential responsibilities, imposed on or accepted by the parents to bring
up a child” (at 1312H). Lord Hope likewise concluded that it would not be
“fair, just or reasonable” for the upkeep claim to succeed. His reasons, in
essence, were the same as those of Lord Clyde, namely, that the compensatory
principle would demand that a deduction be made for the benefits of
parenthood, but that no such deduction could be made: in his words, “the
value which is to be attached to these benefits is incalculable” and he thus
concluded that upkeep costs would not be recoverable (at 1332D–E).
Lord Steyn, on the other hand, sought recourse to the concept of distributive
justice which, he said, concerned the “just distribution of burdens and losses
among members of a society” (at 1318D). He held simply that members of
society would “instinctively” say that “the law of tort has no business to
provide legal remedies consequent upon the birth of a healthy child, which all
of us regard as a valuable and good thing” (at 1318F–H).
65 What is clear from their speeches is that the majority of the law lords
(Lord Millett dissenting on this particular point) proceeded on the basis that
the reasons which militated against the allowance of the parents’ claim for
upkeep costs were distinct, and therefore did not wholly bar recovery of the
mother’s claim as such. Thus, they held that both general damages arising out
of the pain and suffering associated with pregnancy and childbirth as well as
special damages arising out of the consequential medical expenses were
44
properly recoverable by the mother. However, they did not explain why this
was so in any great detail. For instance, Lord Steyn merely stated that “[t]he
considerations of distributive justice which militated against the claim for the
[upkeep costs] did not apply for the claim for a solatium” (at 1320E), while
Lord Clyde stated simply, without further elaboration, that the mother’s claim
was “reasonably a subject for compensation” (at 1339F).
66 After McFarlane, the issue as to whether upkeep costs could be

awarded for the birth of a healthy child was well-settled, and it was
consistently applied in the wrongful conception cases which were decided
afterwards. It did not completely preclude upkeep awards in wrongful birth
cases (see, for example, the decisions of the English High Court in Rand v
East Dorset Health Authority [2000] Lloyd’s Rep Med 181 and Hardman v
Amin [2000] Lloyd’s Rep Med 498), but it restricted such awards to only the
additional costs of raising a disabled child. The courts hearing these wrongful
birth cases felt themselves bound to hold that the ordinary costs of raising a
healthy child would, following McFarlane, be irrecoverable. However, they
considered that wrongful birth cases were sufficiently different that the policy
considerations that the child-rearing costs which were related directly to the
disability would still be recoverable (see The Troubled Pregnancy at p 126).
67 However, McFarlane left two points unresolved:
(a) First, it expressly left undecided the question of whether

recovery should be allowed if the unplanned child was born disabled
(at 1320C per Lord Steyn and at 1334D per Lord Clyde).
(b) Second, it also did not address the question of whether recovery
would be allowed if one or both of the parents, rather than the child,
was disabled.
45
(2) Parkinson: healthy parents and disabled child
68 The issue as to whether upkeep costs could be awarded where the child
was born disabled arose for decision in Parkinson v St James and Seacroft
University Hospital NHS Trust [2002] QB 266 (“Parkinson”). The claimant,
Mrs Parkinson, underwent a sterilisation operation which was negligently
performed, and as a consequence she gave birth to her fifth child, who was
born significantly disabled. This placed Mrs Parkinson, who was already
living in very humble circumstances, under great financial pressure. She
subsequently brought suit against the defendant-hospital and sought to recover
the full costs of bringing up the child. While the English Court of Appeal held,
mirroring the practice in wrongful birth cases decided post-McFarlane (see
above at [66]), that while she was precluded from recovering the costs of
caring for a normal healthy child, she was nevertheless entitled to an award for
the extra expenses associated with bringing up a child with a significant
disability.
69 Brooke LJ, delivering the first of the two fully reasoned judgments in
this case, noted that parents in Mrs Parkinson’s situation (that is to say, parents
of children with congenital defects) had been able to recover upkeep costs for
the better part of 15 years (since Emeh). This, he held, was not affected by the
decision in McFarlane, which stood for the proposition that a medical
professional did not, for reasons of policy, owe a duty of care in respect of the
costs of raising a healthy baby. He accepted that this would preclude recovery
for the ordinary costs of raising a child. However, the calculus was quite
different where the extra expenses associated with the raising of a disabled
child were concerned. In such a case, he ruled that it would both be “fair, just
and reasonable” (to use the language of Caparo preferred by Lord Slynn and
Lord Hope in McFarlane) and consistent with the principles of “distributive
46
justice” (to use the language of Lord Steyn in McFarlane) to permit recovery
of those extra costs: see Parkinson at [50].
70 The speech of Hale LJ (as she then was) began from the premise that
all the consequences arising out of the unplanned pregnancy (which, as she
noted, were many and varied and which she described in powerful detail) were
directly caused by the defendant’s negligence, and they would, according to
what she termed the “normal legal principles” of the law of tort, normally be
recoverable (see Parkinson at [75] and [76]). The only impediment was the
decision in McFarlane. While she noted that the law lords had given different
reasons for their conclusion in McFarlane, she ultimately located the ratio of
the case in what she termed the “solution of deemed equilibrium” – that is to
say, the benefits and burdens of parenthood were assumed to cancel each other
out where one was concerned with a healthy baby (at [87] and [90]) (this
reasoning did not, however, subsequently find favour). For this reason,
Hale LJ confined the holding in McFarlane only to upkeep claims involving
healthy children. There was, she said, “no reason or need to take that
limitation any further than it was taken in McFarlane’s case” (at [90]). She
was careful to add, however, that her approach did not have the effect of
treating a disabled child as being of any less worth than a healthy child.
Instead, she concluded that her approach “treats a disabled child as having
exactly the same worth as a non-disabled child. It affords him the same dignity
and status. It simply acknowledges that he costs more” (at [90]). She also
added that she thought that such an award could not be impugned as being
either unfair, unjust, or disproportionate (at [95]).
(3) Rees: disabled mother and healthy child
71 The issue of whether upkeep costs could be awarded where a healthy
47
child was born to disabled parents came up for decision in Rees v Darlington
Memorial Hospital NHS Trust [2003] 3 WLR 1091 (“Rees”). The plaintiff,
Ms Rees, was severely visually handicapped. Fearing that she would not be
able to care for a child, she underwent a sterilisation operation which was,
unfortunately, negligently performed. Subsequently, Ms Rees conceived and
gave birth to a healthy child. She sued the defendant-hospital and brought an
upkeep claim. This was disallowed at first instance but allowed in part by the
English Court of Appeal, which restricted the quantum of the award to the
additional upkeep costs which were attributable to the special difficulties she
would face in taking care of the child as a result of her disability. When the
matter came before the House of Lords, there were two issues. The first was
whether McFarlane should be overruled entirely. On this, the law lords were
unanimous: all of them declined to do so on the basis of the doctrine of
precedent. The second issue was whether the decision of the Court of Appeal
to grant Ms Rees a partial award should stand. By a slim majority of 4-3, the
Court of Appeal was reversed and the upkeep claim was denied. However, the
majority also awarded Ms Rees a “conventional award” in the sum of £15,000
to afford a measure of recognition of the wrong which she had suffered.
72 On the issue of upkeep costs, the majority was clear that the present
case fell within the scope of the rule in McFarlane. Lord Millett was perhaps
the clearest on this, as he pointed out that the focus in McFarlane was on the
costs associated with the raising of a healthy child and, on this point, the
holding of the House was that such costs were irrecoverable. On this basis, the
decision of the Court of Appeal, which resulted in an award for the costs of
raising a healthy child, was “not a legitimate extension of Parkinson, but an
illegitimate gloss on McFarlane” (see Rees at [113]). The majority were also
persuaded by the powerful dissenting opinion of Waller LJ in the court below,
48
who pointed out that there would be serious anomalies if an award were to be
made. He compared the situation of a claimant-mother with four children who
lived in straitened circumstances, and for whom the addition of a fifth child
would cause a breakdown in her health, with that of a claimant-mother who
was disabled but wealthy. It appeared unfair and unprincipled (viewing
matters through the prism of need) to award damages to the latter but not to
the former (see the decision of the English Court of Appeal in Rees v
Darlington Memorial Hospital NHS Trust [2003] QB 20 at [53]–[55] per
Waller LJ). The minority accepted the force of this critique, but did not think it
insuperable. At the end of the day, they simply rested their dissent on the
ground that “special consideration” (at [39] per Lord Steyn) could and ought
to be given to Ms Rees on the ground of her disability and that it was “fair,
just and reasonable” (at [97] per Lord Hutton) for this to be done.
73 In many ways, the decision of the majority was not surprising – it was
simply an affirmation of the holding which had been laid down scarcely four
years earlier in McFarlane. The most controversial aspect of Rees has been the
fashioning of the “conventional award”, which was assailed by the minority
for being “contrary to principle (at [46] per Lord Steyn), as well as “hugely
controversial” and a subject better left to Parliament (at [77] per Lord Hope).
We will defer detailed discussion of this aspect of the judgment until we come
to the section on an award for a “loss of autonomy”.
Australia
74 From the UK, we turn to Australia. Prior to 2003, there were relatively
few cases which were directly on point and there was no consistent practice as
such. In the wrongful conception case of Dahl v Purnell (1993) 15 QLR 33,
the District Court of Queensland awarded upkeep costs following a failed
49
vasectomy, but reduced the award by one quarter to account for the intangible
benefits received from the child. In the wrongful birth case of Veivers v
Connolly (1995) 2 Qd R 326, the Queensland Supreme Court awarded upkeep
costs of approximately A$800,000 for the doctor’s negligence in failing to
diagnose that the mother suffered from rubella and warn her of the risks
thereof. Finally, in the wrongful birth case of CES v Superclinics (Australia)
Pty Ltd (1995) 38 NSWLR 47, the New South Wales Court of Appeal refused
to award upkeep costs but allowed the claim for damages for pain and
suffering. This was an unusual case because only one of the judges,
Priestley JA, gave reasons in support of this result (he held that the decision of
the mother to accept the child constituted a novus actus interveniens). Kirby P
(as he then was) rejected this argument and would have been inclined to award
both upkeep costs as well as damages for pain and suffering but concurred in
the decision in order to produce a plurality in favour of the final result. The
last judge, Meagher JA, would have not have made any award at all on the
ground that the cause of action itself was barred by public policy.
75 All of these disparate lines of authority were swept away by the

decision of the High Court of Australia in Cattanach. The plaintiffs in that
case were husband and wife. Desiring to limit the size of their family, the wife
sought medical advice and was advised to undergo a tubal ligation. During the
consultation, the wife informed the doctor that her right fallopian tube had
been removed. It turned out that this was incorrect; but the doctor did not
inquire further and performed the procedure only on the wife’s left fallopian
tube. She eventually conceived and delivered a healthy baby boy. The
plaintiffs then brought an action in both tort and contract claiming, among
other things, upkeep costs. The trial judge made a finding of negligence on the
basis that the doctor had too uncritically accepted the wife’s assertion that her
50
right fallopian tube had been removed and ought to have advised her to have it
specifically investigated. The judge allowed the claim for upkeep but his
decision was reversed on appeal to the Queensland Court of Appeal. By the
time the matter came before the High Court of Australia, the claim in contract
had been abandoned. By a slim majority of 4-3, the High Court reversed the
decision of the Queensland Court of Appeal and allowed the upkeep claim.
76 The majority, comprising McHugh, Gummow, Callinan, and Kirby JJ,

proceeded from the premise (as did the law lords in the later case of Rees) that
the claim – being one that was causatively linked to the defendant’s
negligence and reasonably foreseeable – was recoverable under the ordinary
principles of tort liability and that the onus, though they did not quite put it in
those terms, was on those who opposed recovery to put forward cogent
reasons for the denial of liability (at [51], [179] and [298]). This is perhaps
clearest in the opinion of Kirby J, who wrote that “the relevant question is why
the wife was not entitled to recover damages for all these consequences; it is
not why she should be held to be entitled to recover for them” [emphasis in
original] (at [192]). They warned against the creation of a “zone of legal
immunity” (at [149] per Kirby J) for healthcare professionals, which they said
would not only be unprincipled, but also contrary to the public interest (at [57]
per McHugh and Gummow JJ and at [295] per Callinan J).
77 For this reason, large portions of their opinions were given over to
detailed rebuttals of the principal arguments against the award of upkeep costs.
In particular, the following common themes ran through their judgments:
(a) First, it was stressed that the “damage” which the law sought to
compensate was not the birth of the child per se, but the financial
burdens arising therefrom. At [68], McHugh and Gummow JJ stated
51
that the “unplanned child is not the harm for which recompense is
sought in this action; it is the burden of the legal and moral
responsibilities which arise by reason of the birth of the child that is in
contention.” Thus, it was held that the award of damages did not
necessarily entail a negative value judgment of the worth of the child
(at [148] per Kirby J).
(b) Secondly, it was argued that many of the negative policy

considerations rested on dubious factual foundations. At [148], Kirby J
observed that the claim that the birth of a child was always a blessing
was a received notion that was not always true and should not apply to
a particular case unless substantiated by objective empirical evidence
(see also at [79] per McHugh and Gummow JJ and at [292] per
Callinan J). At [301], Callinan J gave short shrift to the argument that
the award of damages should be refused because it would detrimentally
affect the child’s psychological well-being, holding that “there are
many harsher truths which children have to confront in growing up
than the knowledge that they were not, at the moment of their
conception, wanted” (see also at [79], where McHugh and Gummow JJ
dismissed the same argument – that recovery should be precluded
because it would cause psychological harm to the children – on the
ground that it was too speculative).
(c) Thirdly, they held that there should not be any offset for the
intangible benefits brought by the child, as had been the practice in
some American jurisdictions (see, for example, the decision of the
Californian Court of Appeal in Custodio v Bauer, 59 Cal Rptr 463
(1967) (“Custodio”)). The reason for this, as McHugh and Gummow JJ
explained at [90], was that it was impermissible in principle to place on
52
the same scales the benefits accrued from one legal interest against the
losses occasioned by the infringement of a separate legal interest (see
also at [175] per Kirby J and at [298] per Callinan J).
78 The minority comprised Gleeson CJ and Hayne and Heydon JJ. They
each argued that the expenses incurred in the upkeep of a child was not a
proper subject for recovery. In arriving at this conclusion, they eschewed
many of the traditional justifications and/or re-cast them in a different light.
Central to their view was the insight that the creation of the parent-child
relationship was an integral aspect of the damage for which recovery was
sought and this made it untenable for recovery for upkeep to be claimed (at
[26] per Gleeson CJ). Hayne J warned against the “commodification” of the
child and said, “[i]f attention is to be paid to all of the consequences of the
defendant’s negligence, one of those consequences is that there is a new life in
being … life is not an article of commerce and to it no market value can be
given” [emphasis in original] (at [248]).
79 To permit such an exercise of valuation, the minority held, would be

fundamentally inconsistent with the obligations, both legal and moral, which
attend parenthood (at [35] per Gleeson CJ and at [261] per Hayne J). It would
also be detrimental to the parent-child relationship, as it might open the door
for parents to “embark upon proving that the economic costs of the child will,
in the long run, outweigh whatever advantages or benefits the parent may
derive from the child’s existence” (at [259] per Hayne J). This was a problem,
Heydon J said, that would exist even if there were no offset solution. He
explained that if the award were to be truly compensatory, then there would
always be a financial incentive (a “temptation”) for parents either to
exaggerate the educational goals which they had for their children or to over-
emphasise their weaknesses (both of which would entail a higher pay-out): at
53
[338]–[346].
80 In an interesting postscript to the judgment, three Australian States

swiftly moved to pass legislation to reverse the decision of the High Court of
Australia. In New South Wales (see s 71 of the Civil Liability Act 2002
(NSW)) and South Australia (see s 67 of the Civil Liability Act 1936 (SA)),
the position now mirrors that in the UK post-Parkinson, that is to say, no
damages may be awarded for the ordinary costs of raising a healthy child
although damages may be claimed for the additional costs of raising a child
born with disabilities. In Queensland, no damages may be awarded for the
“costs ordinarily associated with rearing or maintaining a child” (see ss 49A
and 49B(2) of the Civil Liability Act 2003 (Qld)). No carve out was included
for the additional costs of raising a child with disabilities, but it appears that
the intent of the legislature in that particular State was that the court would be
able to make such an award (see Nicolee Dixon, “The Costs of Raising a
Child: Cattanach v Melchior and the Justice and Other Legislation
Amendment Bill 2003 (Qld)”, (QPL, September 2003) at p 17). In the
remaining States and Territories, Cattanach still remains good law (see
Catastrophic Error at 235).
Some interim conclusions on the foreign authorities
81 If nothing else, this brief survey of the foreign authorities demonstrates

that there is no path which is free from difficulties. This is not surprising in the
least, given the deep complexity as well as sensitivity of the issues involved.
However, we think that it is possible to commence making some headway by
identifying three reasons upon which we would not decide this matter (all of
which were raised, in some form or other, in the foreign authorities). It might
seem odd for us to begin with these negative arguments, but we consider it
54
helpful to clear out some of the conceptual detritus before turning to the
substantive analysis proper. These three reasons are:
(a) that the success of the claim is to be determined (or even

affected) by its classification either as one for pure economic
loss or consequential economic loss;
(b) the contention that the arguments against recovery rest on

dubious factual propositions and should be rejected out of
hand; and
(c) the suggestion that the Appellant’s decision to accept Baby P

constitutes a novus actus interveniens.
82 First, we consider that it does not matter whether the upkeep claim is
classified as an action for the recovery of pure economic loss (see, for
example, the speeches of Lords Slynn, Steyn, and Hope in McFarlane and the
opinion of Gleeson CJ in Cattanach) or as one for the recovery of
consequential economic loss (see, for example, Kirby J in Cattanach and
Hale LJ in Parkinson) because there is no general exclusionary rule against
recovery for pure economic loss in Singapore (see Spandeck at [69]). Thus,
the characterisation of the claim cannot determine its success. The distinction
is only useful as a proxy (and only then as a very rough one) for whether a
duty of care in tort ought ordinarily to arise in a given context. At the end of
the day, the existence of a duty of care falls to be adjudicated based on the
facts of each case and cannot merely be an arid matter of labels.
83 Second, we think that it is important to emphasise that the dispute is

fought not at the factual, but at the normative level. The claim that all children
are a “blessing” or that the well-being of the unplanned children will suffer as
a consequence of the making of an award for upkeep are, of course,
55
contestable factual propositions. This point was well made by the majority in
Cattanach (see above at [77(b)]). However, those who seek to deny upkeep
costs have never seen themselves as making a factual claim that the benefits of
having a child always outweigh the burdens, or that the children of the
claimants will necessarily carry the psychological scars of the litigation.
Rather, their claim is that the award of upkeep costs would be antithetical to
settled legal policy concerning the value human life or the character of a
parent-child relationship. As Gleeson CJ put it, the “value of human life,
which is universal and beyond measurement, is not to be confused with the
joys of parenthood, which are distributed unevenly” (see Cattanach at [6]; see
also McFarlane at 1347G–H per Lord Millett, cited above at [62]).
84 Finally, we clarify that the Appellant’s decision to accept Baby P

cannot be considered a novus actus interveniens. Despite the difficulty of the
subject of upkeep claims in general, this is one point on which there is near
universal agreement: almost without exception, all jurisdictions hold that that
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 (see The
Troubled Pregnancy at p 116). It is settled law that in order for the act of the
victim to break the chain of causation, it must be so “wholly unreasonable”
that it eclipses the original wrongdoing and may be deemed to be a wholly
independent cause of the damage (see the decision of this court in TV Media
Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] 3 SLR(R) 543 at
[76]). In this case, Baby P is biologically related to the Appellant, who had
spent nine months carrying her to term. The Appellant’s decision to keep
Baby P therefore cannot, by any stretch of the imagination, be considered to
be one which is considered to be “wholly unreasonable”. We would go so far
as to say that it would be repugnant to suggest otherwise for it seems to us that
56
the Appellant did not, in fact, have any choice in the matter.
85 As a general proposition, we agree with Lord Steyn that it is “difficult

to envisage any circumstances in which it would be right” to challenge the
parents’ decision not to resort either to abortion or adoption (see McFarlane at
1317H). The reason for this is plain. 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 (see, generally, McFarlane at 1347D
per Lord Millett). To the Respondents’ credit, they never argued that the
Appellant ought to have given Baby P up for adoption and even if such an
argument would have been made, we would not have been disposed to accept
it. Section 3(1) of the Termination of Pregnancy Act (Cap 324, 1985 Rev Ed)
(“TPA”) makes it clear that the choice to terminate a pregnancy is one for the
pregnant woman alone to make. This is buttressed by s 5 of the TPA, which
makes it an offence for a person to compel or induce a pregnant woman to
undergo treatment to terminate a pregnancy. In like manner, s 4(4) of the
Adoption of Children Act (Cap 4, 2012 Rev Ed) generally enjoins the court
from making any adoption order unless the consent of the persons with
custody of the child (in this case, the Appellant) has been procured. In our
judgment, it would be wholly contrary to the policy of the law, as embodied in
these provisions, 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.
Analysis
86 After careful consideration of the competing arguments, we are
57
ultimately persuaded by the arguments against the award of upkeep costs. Our
essential reasons are twofold (and which, as we shall see, are, by their very
nature, closely related):
(a) The obligation to maintain one’s child is an obligation at the

heart of parenthood and cannot be a legally cognisable head of loss.
(b) To recognise the upkeep claim would be fundamentally

inconsistent with the nature of the parent-child relationship and would
place the Appellant in a position where her personal interests as a
litigant would conflict with her duties as a parent.
We turn now to consider, seriatim, these reasons why we consider that the
claim for upkeep should not be allowed.
The obligations of parenthood
87 Turning to the first reason, a common theme among those who would
permit recovery is the argument that the upkeep claim is maintainable simply
on the application of the conventional principles of civil liability. This is a
view that is shared even among those who would deny upkeep claims (see, for
example, Cattanach at [192] per Hayne J and Rees at [12] per Lord Nicholls).
On this view, a claim for upkeep is no different in principle from a claim for
damages for pain and suffering, or a claim for the cost of the medical expenses
associated with the IVF procedure. In one sense, this is right – the claim for
upkeep costs is simply the last link in the concatenation of obligation, breach,
causation, foreseeability, and damage that forms the chain of civil liability in
the law of negligence. With respect, however, we do not think that this
presents the whole picture. This is too general an approach and requires more
nuance (especially given the very sensitive issues that we are dealing with).
58
The critical difference is this. In the present case (and in upkeep claims more
generally), the complaint is not about the direct consequences to the Appellant
qua patient of the physical and other aspects of pregnancy and birth; rather, it
is about the consequences to the Appellant qua mother of the existence of the
child and the concomitant creation of a relationship pursuant to which there
are legal, moral, and social obligations to care for, support, and nurture Baby P
(see Todd at 532). In short, 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.
88 In contemporary discourse, it has become common to speak of

parenthood in the distinct senses in which it exists: biological, social, legal,
and moral. For present purposes, we can put aside the differences amongst
these different conceptions (and the extent to which they give rise to different
claims) because the Appellant is both the biological as well as legal parent of
Baby P. We can focus more broadly on the notion of parenthood as an
institution arising out of the relationship between a custodial parent (that is to
say, a parent who cares for a child and with whom the child stays) and a
dependent child. At its core, this relationship is a moral one: to be a parent is
to bear both rights and responsibilities towards one’s child which are unique.
In TDT v TDS and another appeal and another matter [2016] 4 SLR 145 at
[111], we approved of the following passage written by Assoc Prof Debbie
Ong (as she then was) in “Family Law” (2011) 12 SAL Ann Rev 298 at
para 15.6:
… Parents stand in an exalted position with respect to having

authority over the upbringing of their children. They are also
expected to bear the greatest responsibility for the protection,
59
nurture and maintenance of their children. No other adult has

the same primary duty to maintain. …
89 Parental rights are, in essence, those of substituted judgment and

surrogate decision-making and include, amongst other things, the liberty to
make decisions ranging from immediate matters such as the child’s diet,
medical treatment, and travelling arrangements to longer-term decisions which
have a far-reaching impact on the well-being of the child, such as educational
choices and (for a time at least) religious observance. These rights are also
exclusive, in the sense that a parent is entitled to exclude others (save in
limited situations provided by law, when other persons may act in loco
parentis) from making these decisions. Parental responsibilities encompass a
set of different duties which relate to the advancement of the child’s welfare.
Minimally, these duties encompass the obligation to provide the child with the
necessaries of life – that is to say, the basic material goods necessary for life
and health. As we explained in AUA v ATZ [2016] 4 SLR 674 (“AUA”) at [40],
each parent has an “independent and non-derogable duty to maintain his/her
children, whether directly, through the provision of such necessities as the
child may need, or indirectly, by contributing to the cost of providing such
necessities”. This duty, which we described as a “central principle” of the
Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”) is
enshrined in s 68 of the Women’s Charter as follows:
Except where an agreement or order of court otherwise

provides, it shall be the duty of a parent to maintain or
contribute to the maintenance of his or her children, whether
they are in his or her custody or the custody of any other
person, and whether they are legitimate or illegitimate, either
by providing them with such accommodation, clothing, food
and education as may be reasonable having regard to his or
her means and station in life or by paying the cost thereof.
90 The point, for present purposes, is this. The duty to maintain one’s
child is a duty which lies at the very heart of parenthood, and thus the
60
expenses which are incurred towards the discharge of this estate are not
capable of characterisation as a loss. This is not a factual claim and it has
nothing to do with the subjective perceptions of individual parents; nor has it
anything to do with the felt reality of parenthood, which, on occasion, can
even feel like a chore. Rather, it is a normative claim about the paradigm of
family relationships which exists in the law, which views the responsibilities
of parenthood as obligations of a legal and moral character that arise in
relation to the birth of new life (see, generally, Cattanach at [258] per
Hayne J). These are obligations which arise out of the dual character of
parenthood, which “inhabits the intersection of two distinct relationships”: a
custodial relationship between parent and child and a relationship of
trusteeship between the parents and wider society (see Elizabeth Brake and
Joseph Millum, “Parenthood and Procreation” in The Stanford Encyclopedia
of Philosophy (Winter 2016 Edition), (Edward Zalta, gen ed),
<https://plato.stanford.edu/entries/parenthood/> (accessed 5 December 2016)).
Neither of these relationships gives rise to obligations which are capable of
valuation as “loss” in any meaningful sense and therefore cannot, in our
judgment, be the subject of a claim for damages.
91 It is important to emphasise that this is not a statement about the

difficulty of any putative valuation exercise (the fact that there are difficulties
with quantification is not an insuperable barrier to the making of an award: see
the English Court of Appeal decision of Chaplin v Hicks [1911] 2 KB 786 at
791 per Vaughan Williams LJ), but, rather, about its impossibility, when
viewed from a holistic perspective. The fact that the upkeep claim is
denominated in dollars and cents does not change the analysis. 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 –
61
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 (“Benham”) at 168 – “incapable of being
measured in coin of the realm” [emphasis added]. As Heydon J put it at [356]
of Cattanach:
Human life is invaluable in the sense that it is incapable of

valuation. It has no financial worth which is capable of
estimation. It cannot be sold for money, at least not lawfully.
The duty cast on parents which flows from the arrival of new
human life is also incapable of valuation or estimation or
discharge by payment. The financial costs of child-rearing can
be calculated, but they represent only part − and in some
ways an insignificant part − of the onerous aspects of the
duty. To calculate them in money terms and then permit their
recovery in relation to the performance of the duty is to engage
in an activity lacking any meaningful correspondence with
the duty, just as much as seeking to calculate the economic
and other advantages of the new life is to engage in an activity
lacking any meaningful correspondence with the phenomenon
under consideration. [emphasis added in italics and bold
italics]
92 A moment’s reflection will reveal that parents provide for their

children in a myriad of ways besides ensuring their material well-being. As
Hale LJ put it in Parkinson at [72], “[t]he law has found it much easier to
focus on the associated financial costs … [but these] costs are not independent
of the caring responsibility but part and parcel of it”. If this is so, one might
justifiably ask if there is any principled reason why the financial costs incurred
in raising a child should be distinguished from the emotional investment in
providing for a child’s self-esteem, happiness, and sense of worth, and so
identified as being capable of being the subject of a claim (see Cattanach at
62
[9] per Gleeson CJ). The challenge, for those who would allow claims for the
costs of upkeep, is to find a principled justification as to why the pecuniary
consequences of the birth of an unplanned child should sound in damages but
the non-pecuniary costs should not. One solution to this incongruity would be
to say that these non-pecuniary aspects of parenthood, too, should also sound
in damages, but this suggestion need only be stated for it to be rejected. This
intuition, we think, stems from the fact that to do so would be to seek
recompense for a matter which is intrinsically incapable of valuation – the
nurturing of a human relationship which has long been held up as the “natural
and fundamental group unit of society” (see Art 23 of the International
Covenant on Civil and Political Rights (19 December 1966), 999 UNTS 171).
This principle has also been enshrined in the texts of many other international
human rights instruments (see, generally, Cattanach at [35] per Gleeson CJ)
and it also finds expression in Singapore in the Shared Values White Paper,
where it is stated that the family is “the basic unit of society” (see Shared
Values White Paper (Cmd 1 of 1991, 15 January 1991) at para 52).
93 In the premises, we do not think that it is open to the Appellant 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. Baby P is a holistic person who
must be accepted as she is. If she is accepted, as we are gratified to observe
she has been, then the Appellant must be taken to have simultaneously
assumed the responsibility of maintaining her (financially and in all other
respects). Parenthood comprises an indivisible bundle of rights and obligations
which cannot be peeled away and hived off à la carte. In the words of the
Judge, “[w]hen a parent has accepted his role in respect of that child, the
63
obligation is his (and his spouse’s). He cannot be a parent and have someone
else pay to bring up the child” (see the Judgment at [16]). Once again, this not
a factual claim, but a normative one about the meaning of legal parenthood.
The reality is that there are many parents who do not in fact shoulder the bulk
of the financial burden of raising their children. This may be so for many
reasons, but it does not detract from the force of the normative argument,
which is that the obligations of parenthood are fundamental, indivisible, and
incapable of sounding in damages.
94 The majority in Cattanach (and those courts which have permitted

claims for upkeep to proceed) was at pains to stress that what was being
counted as loss was not the unplanned child per se, but the unplanned and
unwanted financial expenses which attend the fact of the child’s birth (see
above at [77(a)]). This is correct, as far as it goes, and it might be a possible
answer to the objection that the upkeep claim results in the denigration of the
worth of the child. However, it is not an adequate answer to the present
objection, which is this: no parent can claim a legal entitlement to be free
from the responsibilities of parenthood (whether financial or otherwise). To
clarify, we are not saying that the Appellant’s decision to accept Baby P
constituted a novus actus interveniens. For the reasons which we have already
set out above at [84]–[85], we reject any such suggestion, which carries with it
the imputation that the Appellant’s decision to keep Baby P was “wholly
unreasonable”. However, what we can and must consider is the fact that the
upkeep claim arises out of the parental relationship between the Appellant
and Baby P. This is the sine qua non of the upkeep claim and an appreciation
of it is key to an accurate understanding of the nature of the damage which the
Appellant claims to have suffered.
64
Inconsistency with the nature of the parent-child relationship
95 This brings us to our second reason, which is 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. In the decision of the Supreme Court of Massachusetts in
Burke v Rivo, 551 NE.2d 1 (Mass, 1990), O’Connor J (dissenting, with Nolan
and Lynch JJ) put the point in the following way (at 7):
“It is … the policy of this commonwealth to direct its efforts …

to the strengthening and encouragement of family life for the
protection and care of children.” … That policy is surely not
served, indeed it is disserved, by a rule of damages that would
require parents, if their litigation is to succeed, to persuade a
judge or jury that their child is not worth to them the cost of
rearing that child. The Supreme Court of Illinois put it this
way: “It can be seen that permitting recovery then requires
that the parents demonstrate not only that they did not want
the child but that the child has been of minimal value or
benefit to them. They will have to show that the child remains
an uncherished, unwanted burden so as to minimize the offset
to which the defendant is entitled. …”
96 It has been suggested, in response to this objection, that the solution

lies in doing away with the so-called American “benefit” rule, which requires
a reduction to be made from any award of upkeep costs to account for the non-
pecuniary benefits that the child brings. Among the proponents of this view
are the minority in Cattanach who cited the commentary to §920 of the
65
American Law Institute’s Restatement (Second) of Torts (“the Restatement”)

in support of this position (see Cattanach at [85]). §920 of the Restatement
states that where a defendant’s tortious conduct has caused harm and has also
conferred a benefit on the plaintiff, the “value of the benefit conferred is
considered in mitigation of damages”. This, which in American jurisprudence
is known as the “benefit rule”, is qualified by Comment b to §920 of the
Restatement, which provides that “[d]amages resulting from an invasion of
one interest are not diminished by showing that another interest has been
benefitted”. At [90] of Cattanach, McHugh and Gummow JJ remarked:
… the head of damages that is relevant in the present case is

the financial damage that the parents will suffer as the result
of their legal responsibility to raise the child. The benefits to
be enjoyed as a result of having the child are not related to
that head of damage. The coal miner, forced to retire because
of injury, does not get less damages for loss of earning
capacity because he is now free to sit in the sun each day
reading his favourite newspaper. Likewise, the award of
damages to the parents for their future financial expenditure
is not to be reduced by the enjoyment that they will or may
obtain from the birth of the child.
97 However, the rub lies in determining when the same interest has been
infringed such that a set-off is permissible. There are cases (see, for example,
the decision of the Court of Appeals of Michigan in Troppi v Scarf,
187 N W 2d 511 (1971) and the decision of the Supreme Court of Minnesota
in Sherlock v Stillwater Clinic, 260 N W 2d 169 (1977)) where a broad
interpretation has been adopted and the non-pecuniary benefits of parenthood
were offset against its pecuniary costs. However, there are also cases where
such a set-off has been rejected (see, for example, Custodio, above at [77(c)]).
It appears that the practice in civil law jurisdictions is mixed: most disallow
set-offs on the basis that the benefits and burdens are incommensurable (for
example, Germany and France), but there are some (for example, Austria),
which permit such a set-off: see Barbara Steininger, “Wrongful Birth and
66
Wrongful Life: Basic Questions” (2010) 1 JETL 125.
98 It is clear that this debate is a difficult one, but it seems to us that if

recovery were to be permitted, it is difficult to resist the conclusion that some
form of set-off must be made for the benefits brought by the child (this was
also the view expressed by Lord Scott of Foscote in Rees at [134]). There are
three reasons for this. First, all the arguments against the application of the
benefit rule rest on the premise that the benefits which the child brings are
incommensurable with the pecuniary costs of the child’s upkeep. As a general
statement, this is true. However, the truth is that children eventually do bring
pecuniary benefits in the form of financial support in old age. In Singapore,
the obligation is not just a moral but also a legal one, because of the operation
of the Maintenance of Parents Act (Cap 167B, 1996 Rev Ed). In light of this,
the (eventual) benefits brought by the child are not collateral (as in the case of
the miner who gets to enjoy time in the sun), but directly correlative, to the
birth of the child (see J A Devereux, “Actions for Wrongful Birth”
(2004) XXXIII INSAF 63 at 83). It is not clear that there is a principled reason
why these benefits should not be taken into account. Second, proponents of the
award of upkeep constantly reiterate that difficulties in quantification are not a
barrier to an award of damages. If this is accepted, as we think it ought to be,
then there does not seem to be any reason why this exercise (of set-off) should
not be attempted in order that a proper account might be achieved here. Third,
and even accepting that the benefits cannot be quantified, it does not seem
satisfactory to say that because the benefits cannot be measured, they should
be discounted entirely. It is equally possible to suggest, as Lord Hope did in
McFarlane, that as the benefits of having the child cannot be quantified, then
it means that no value can be determined for the purpose of balancing the
benefits and burdens and recovery should therefore be denied (see above at
67
[64]); or, as was argued by Lord Clyde, that recovery should be denied
because the award of full upkeep costs would be disproportionate if no set off
can be achieved (see above at [63]).
99 If some form of off-setting must be done, then one would run up

immediately against the objection that this gives rise to the “unseemly
spectacle of parents disparaging the ‘value’ of their children or the degree of
their affection for them in open court” (see the decision of the District Court of
Appeal of Florida in Public Health Trust v Brown 388 So 2d 1084 (1980) at
1086 per Schwartz J). It would open the door for all manner of perverse
incentives to enter into the parent-child relationship and taint its essential
character. It would also lead to the undesirable outcome that “little or no
damages would be awarded for loving mothers and fathers while generous
compensation would be obtained by those who disparage and reject their
child” (see the decision of the Court of Appeal of Queensland in Cattanach v
Melchior (2001) 217 ALR 640 at [169] per Thomas JA). This was also a point
which was raised by Jupp J in Udale (see above at [58]). In our judgment, the
public interest lies in the adoption of a bright-line rule, as is adopted in cases
involving conflicts of interest (see, for example, the House of Lords decision
of Bray v Ford [1896] AC 44), that absolutely precludes parents from being
placed in a position where their personal interests might conflict with their
parental duties.
100 In any event, we are of the view that even if no off-setting were to be
allowed, this would only deal with half the problem. At most, it would remove
the incentive for parents to downplay the benefits which their children bring;
however, there would still be an incentive for them to emphasise the
detriments brought about by the child in an effort to secure a larger award. It
might also, as suggested by Heydon J, lead to a situation in which parents set
68
unrealistic goals or expectations for their children and exaggerate changes to

their lifestyle in order to receive a larger award (see Cattanach at [369]). We
feel bound to say that we do not think these are merely fanciful concerns.
Conclusion on upkeep costs
101 For the foregoing reasons, we would uphold the decision of the Judge
on the issue of upkeep costs. The recognition of a claim for upkeep would
require the court to regard, as actionable damage, the incidents of a
relationship which is regarded as socially foundational and incapable of
estimation as loss. Such recognition would also be inconsistent with, and
deleterious to, the health of the institution of parenthood and would be against
the public interest.
102 We also consider, returning to a point which we developed only in part

above at [54], that it does not matter whether this issue is considered from the
perspective of contract or of tort. The reason for this, as pointed out by
Lord Scott in Rees at [132], is that the gist of the claim, whether it is brought
in contract or in tort, is the same: the Appellant is asking to be indemnified for
the costs of raising Baby P. 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 (see Charlesworth & Percy on Negligence
(CT Walson gen ed) (Sweet & Maxwell, 13th Ed, 2014) at p 121 and
Cattanach at [255] per Hayne J). We disagree with Prof Goh that the
contractual analysis sidesteps the policy objections because it is a claim for the
“failure of a promised outcome”. With respect, in so far as the upkeep claim is
concerned, this is, in substance, unpersuasive. One could conceivably
characterise the claim in tort without reference to Baby P by framing it as an
69
action for “loss arising from the combination of incorrect sets of genetic
material”. However, one can immediately see how strained and artificial this
would be. At the end of the day, what is objectionable about the claim in tort is
the same as what is objectionable about the claim in contract, namely, that it
amounts to a claim for an indemnity for the costs of raising a child and places
parents in a position where their personal interests as litigants will conflict
with their duties as parents.
103 The case of Greenfield v Irwin and others [2001] 1 WLR 1279
(“Greenfield”), although factually quite dissimilar, is nevertheless illustrative
of an important point of principle. In Greenfield, the plaintiff was prescribed a
course of contraception by injection by her general practitioner. The nurse
who administered the contraception neglected to test whether the claimant was
already pregnant. It was admitted that this was a negligent act. As it transpired,
the claimant was pregnant and she gave birth to a healthy daughter. She quit
her job to take care of the child and then brought suit in tort against the general
practice, arguing that had the test been performed, she would have aborted the
child then (by the time she found out, it was too late). She claimed
compensation not for upkeep costs per se but for loss of earnings because she
had left her job to take care of her child. The English Court of Appeal denied
her claim on the basis that it was precluded by McFarlane. May LJ wrote (at
[44]):
… there seems to me to be no material distinction between

the costs of caring for and bringing up a child held to be
irrecoverable in McFarlane and the mother’s claim for
loss of earnings in this appeal. It is, I think, correct that
the House of Lords in McFarlane did not have to decide in
terms whether loss of earnings in claims of this kind was
recoverable. But the House did in substance decide that it
was not fair, just and reasonable to impose on the doctor
or his employer liability for the responsibilities
consequential on the birth of the child imposed on, or
70
accepted by, the parents to bring up the child: see, for example,
Lord Slynn, at p 96c, and Lord Hope, at p 97c-f. The present
claim for the loss of earnings is in my view plainly such a claim.
[emphasis added in italics and bold italics]
104 It seems to us that Greenfield stands for the proposition that one cannot
so easily side-step McFarlane by re-framing the head of loss (as loss of the
mother’s earnings instead of upkeep costs of the child) if the substratum of the
claim still consists in the burdens flowing from the birth and existence of the
child. As explained in The Troubled Pregnancy at p 144, “since the financial
consequences of both maintenance and loss of earnings stem from the same
root, Greenfield and McFarlane fall into perfect alignment”. By parity of
reasoning, a plaintiff should likewise not be allowed to avoid the
(objectionable) policy considerations merely by pleading a different cause of
action. If the policy considerations hold sway in tort, they should also hold
sway in contract.
105 Two possible exceptions, neither of which arises on these facts, may be
when there is: (a) a contractual warranty guaranteeing a particular outcome –
that is, that a child containing the genetic material of both parents would be
born – or (b) a clause providing for damages in the event of a situation such as
the present. Both of these possibilities were broached in McFarlane: the first
by Lord Clyde (at 1334D–F); the second by Lord Slynn (at 1312H–1313A).
The latter – a clause expressly providing for damages in the event of a mix-up
– would require the court to resolve the tension between two sets of competing
principles: the general enforceability of bargains on the one hand and the
policy considerations against the award of upkeep on the other. On the
question of how such a balance is to be struck, we express no concluded view
and will leave it to be decided on another occasion should the issue arise.
71
Loss of autonomy
106 We now turn to the second issue, which concerns a potential award for
loss of autonomy. Like the judges in the courts which have been confronted
with issues similar to those before us, we have some discomfort with the result
which we have reached thus far. It may justifiably be asked if our finding
leads to an incongruous − and even unjust as well as unfair – result. In
particular, given the Respondents’ own admission of liability, how can it be
just and fair that they be liable for only a relatively small amount of damages
(comprising, in the main, damages for pain and suffering arising from the
pregnancy and/or the costs of the failed IVF procedure)?
107 In this regard, one aspect of this case that troubled us from the start, as
we noted at [18] above, is the inadequacy of an approach that focuses only on
upkeep costs. This involves, as Gleeson CJ said in Cattanach, a “partial and
selective approach to the results of the child’s birth and existence” (at [9]). It
ignores not only the non-pecuniary aspects of parenting, such as the moral,
psychological, and social obligations which are involved, but also many of the
financial obligations which – although not necessary for subsistence – are
nevertheless socially obligatory (eg, birthday presents and gifts). Underlying
this is a deeper and more serious concern, which is that the focus on the
financial consequences of the birth is not only inadequate, but (ultimately)
misleading. In the words of Lord Bingham of Cornhill in Rees at [8], such an
approach risks “mask[ing] the real loss suffered in a situation of this kind”.
This search for an award to compensate for the “real loss” culminated in the
recognition, in Rees, of a novel head of damage: that for a loss of autonomy.
108 The attraction of a focus on loss of autonomy is that it would seem to

avoid the policy objections that beset the upkeep claim. A claim of this sort
72
would fix not on the liabilities arising out of the care of the unplanned child
(which is the gravamen of the objection against the award of upkeep) but on
the independent interests of the parents which have been transgressed as a
result of the negligent act (see Catastrophic Error at 239–240). What we
propose to do in this part of the judgment is to explore this particular
development in the law to determine if it is a step which we should also adopt.
The development of an award for loss of autonomy
109 The idea of reconceptualising the harm suffered by a plaintiff in a case

involving wrongful conception in terms of a “loss of autonomy” was first
mooted by Lord Millett in McFarlane. As noted above at [62], Lord Millett
would have disposed of the appeal by rejecting both the mother’s claim as
well as the parents’ claim. However, this did not mean that he thought that no
loss had been suffered, or that no award could be made. In his words (at
1348D):
… The rejection of their claim to measure their loss by the

consequences of [the child’s] conception and birth does not
lead to the conclusion that they have suffered none. They have
suffered both injury and loss. They have lost the freedom to
limit the size of their family. They have been denied an
important aspect of their personal autonomy. Their decision
to have no more children is one the law should respect and
protect. They are entitled to general damages to reflect the
true nature of the wrong done to them. This should be a
conventional sum which should be left to the trial judge to
assess, but which I would not expect to exceed £5,000 in a
straightforward case like the present. [emphasis added in
italics and bold italics]
110 This development was given a powerful impetus by Hale LJ in

Parkinson. In several powerful passages, which one commentator described as
a “tour de force” (see Laura Hoyano, “Misconceptions about Wrongful
Conception” (2002) 65 MLR 883 at 897), the learned judge explained that an
73
unwanted pregnancy brought about serious and enduring physiological,

psychological, social, and legal consequences to a woman (see Parkinson at
[64]–[73]). All of these consequences, she explained, “flow inexorably …
from … the invasion of the bodily integrity and personal autonomy involved
in every pregnancy” (at [73]). She amplified these points extra-judicially in a
speech delivered that same year, where she explained that pregnancy brings
about “profound and lasting changes in a woman’s life” and reiterated that the
harms suffered by a plaintiff in a wrongful conception all flowed from the
“invasion of bodily integrity and personal autonomy involved in every
pregnancy” (see Brenda Hale DBE, “The Value of Life and the Cost of Living
– Damages for Wrongful Birth” (2001) 7 British Actuarial Journal 747).
111 Lord Millett’s suggestion that a conventional sum be awarded was

eventually adopted by the majority in Rees, which considered that an award of
£15,000 was an appropriate award to, in Lord Bingham’s words, “mark the
injury and loss” which had been suffered (see Rees at [8]). However, the
award made in Rees differs from that proposed by Lord Millett in McFarlane
in one significant respect: where Lord Millett would have awarded a
conventional sum in lieu of both the mother’s claim and the parents’ claim
(both of which he rejected), the award fashioned by the majority in Rees was
in addition to the mother’s claim for damages for pain and suffering, which
was not in issue in Rees. One difficulty with the conventional award in Rees is
that there was no clear consensus among the law lords on either (a) the nature
of the injury which had been suffered; or (b) whether the award was intended
to be vindicatory or compensatory. The positions taken by the various law
lords may be summarised as follows:
(a) Lord Bingham stated that the “real loss” in this situation was
the fact that the mother had been denied “the opportunity to live her
74
life in the way that she wished and planned”. The conventional award,
he said, “would not be, and would not be intended to be,
compensatory” and therefore “would not be the product of
calculation”. Instead, its object was to “afford some measure of
recognition of the wrong done” (at [8]).
(b) Lord Nicholls explained that the award was intended to

“recognise that in respect of [the] birth of the child the parent has
suffered a legal wrong … [which had] a far-reaching effect on the lives
of the parent and any family she may already have” (at [17]).
(c) Lord Millett elaborated on the points which he had made in

McFarlane. He held that the parents had been denied “an important
aspect of their personal autonomy, viz, the right to limit the size of
their family” and that this was “an important human right which should
be protected by law” and “a proper subject for compensation by way of
damages” (at [123]). He then explained that while he initially
conceived of it as a variable award, he was persuaded that it ought to
be “a purely conventional one which should not be susceptible of
increase or decrease by reference to the circumstances of the particular
case” (at [125]).
(d) Lord Scott viewed the matter not in terms of injury or harm, but
in terms of the deprivation of a benefit. He explained that the plaintiff
was “entitled to the benefit of the doctor’s contractual obligation to his
NHS employers to carry out the operation with due care” and that it
was open to the court to “put a monetary value on the expected benefit
which she was, by the doctor’s negligence, deprived” (at [148]).
112 The concept of a loss of autonomy was subsequently considered in the
75
House of Lords decision of Chester v Afshar [2004] 3 WLR 927 (“Chester”).

That case involved the provision of negligent advice. The defendant-doctor
failed to inform the plaintiff-patient of the risk of developing a particular
syndrome after the performance of a surgical procedure. The plaintiff agreed
to undergo the procedure and the risk eventuated. The plaintiff was unable to
show that she would not have opted for the treatment if she had been properly
advised (although it was shown that she would have delayed it pending receipt
of a second opinion). On an orthodox application of the traditional rules of
causation, this should have been fatal to her claim since it could not be shown
that the defendant’s failure to warn her had, in any sense, “caused” the damage
– the risk of a complication was latent and would have been the same
irrespective of when the procedure was performed and whether a warning had
been issued or not. However, the majority of the law lords nonetheless allowed
the plaintiff’s claim for damages. They held that the issue of causation could
not be considered in the abstract but instead had to be considered with
reference to the particular scope of the doctor’s duty, which was to advise his
patient of the dangers of the proposed treatment. This context, they held,
justified a narrow modification of the conventional approach towards proof of
causation such that the plaintiff’s injury was to be regarded as having been
caused by the doctor’s negligent advice.
113 Thus summarised, it is clear that Chester was a case about the creation
of a narrow exception to the traditional principles of causation in the context
of a doctor-patient relationship (in the words of Lord Hope, the issue was
“essentially one of causation”: at [40]). It was not, strictly speaking, about the
recognition of a head of claim for loss of autonomy (ultimately, the majority
only awarded damages for the factual disability sustained by the patient, and
did not award any damages for loss of autonomy per se). Nevertheless, the
76
case is useful in at least two ways. The first, which we shall return to later, is
that it illustrates how the concept of autonomy can be held up as a value or
principle which underlies the existence or development of a legal rule without
itself being the subject of the rule – in Chester, for instance, it moved the court
to modify the traditional principles of causation in order to provide the
plaintiff with a remedy. The second is because of what the law lords had to say
on the subject of personal autonomy. Three of the law lords identified the
plaintiff’s autonomy as an important consideration that the law should
recognise:
(a) Lord Steyn observed that a patient’s right to be warned “ought

normatively to be regarded as an important right” (at [17]) and that it
was grounded in, amongst other things, the need to ensure that “due
respect is given to the autonomy and dignity of each patient” (at [18]).
As a consequence of the failure to warn, the plaintiff was unable to
give full informed consent to the procedure. In the circumstances, her
“right of autonomy and dignity can and ought to be vindicated” by a
departure from traditional principles of causation (at [24]).
(b) Lord Hope openly admitted that his decision was motivated by
policy. He stated that the “function of the law is to enable rights to be
vindicated and to provide remedies when duties have been breached”;
and that, unless liability could be found, the doctor’s duty to warn
would be “a hollow one, stripped of all practical force and devoid of all
content” (at [87]). On this basis, he found that the requirement of
causation had been satisfied and held the defendant liable.
(c) Lord Hoffmann recognised that the failure to warn represented

“an affront to [the plaintiff’s] personality” and thought that there was
77
room for a “modest solatium” (at [33]–[34]). Ultimately, however, he

decided against such an award because of the difficulty in arriving at a
figure.
114 After the decision, at least one academic suggested that the case ought
to have been disposed of not on the basis of causation, but as one in which a
distinct interest – the plaintiff’s right to autonomy – had been infringed (see
Kumaralingam Amirthalingam, “Causation and the Gist of Negligence”
[2005] CLJ 32 (“Gist of Negligence”) at 34). On that view, the only difficulty
with Chester would be the quantification of the loss. Since Chester, references
to autonomy have cropped up occasionally in the English cases. In her
separate concurring opinion in the UK Supreme Court decision of
Montgomery v Lanarkshire Health Board (General Medical Council
intervening) [2015] AC 1430, which was also a case concerning a surgeon’s
failure to properly advise a patient of the risks of a procedure, Baroness Hale
of Richmond stated confidently that “the interest which the law of negligence
protects is a person’s interest in his own physical and psychiatric integrity, an
important feature of which is their autonomy, their freedom to decide what
shall and shall not be done with their body” (at [108]).
Arguments against the recognition of loss of autonomy as an actionable

injury in its own right
115 There has been a veritable mountain of material written on the subject
and, due to the industry of counsel, our attention was drawn to much of it.
After careful consideration of the competing arguments, we are of the view
that we should not – despite having been invited to do so by Mr Sreenivasan –
take the step of recognising a loss of autonomy (without more) as an
actionable injury in its own right. In our judgment, such a development would
pose significant problems of legal coherence and would be contrary to well-
78
established principles on the recovery of damages. Before we proceed to

explain why, it is important to note at this juncture that our refusal to
recognise a loss of autonomy as a general head of damage without more does
not imply that a loss of autonomy has no role to play in a case such as the
present. As alluded to earlier (at [113]) and as we shall explain later, 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. The three
reasons we have for refusing to recognise a loss of autonomy as actionable
damage per se are:
(a) First, the concept of “autonomy” is too nebulous and too

contested a concept to ground a claim. We shall refer to this as the
“conceptual objection”.
(b) Second, the notion of a loss of autonomy does not comport with
the concept of damage in the tort of negligence. We shall refer to this
as the “coherence objection”.
(c) Third, the recognition of such a head of damage would

undermine existing control mechanisms which keep recovery in the
tort of negligence within sensible bounds. We shall refer to this as the
“over-inclusiveness objection”.
The conceptual objection
116 Autonomy is a slippery concept. In the English Court of Appeal

decision of Airedale NHS Trust v Bland [1993] 2 WLR 316 (affirmed by the
House of Lords in the same law report (also reported at [1993] 1 AC 789)),
Hoffmann LJ (as he then was) equated it with the right of self-determination
and explained it consisted simply of the “right to choose how [one] should live
79
[one’s] own life” (at 351F). Under this liberal, individualistic conception,
autonomy is chiefly understood in negative terms as the liberty to live one’s
life free from external interferences or control. Its value, as Prof Ronald
Dworkin explained in Life’s Dominion: An Argument about Abortion,
Euthanasia, and Individual Freedom (Knopf, 1993) at p 224, is that it makes
“self-creation possible”: it allows all of us to “be responsible for shaping our
lives according to our own coherent or incoherent – but, in any case,
distinctive – personality. It allows us to lead our lives rather than be led along
them, so that each of us can be … what we have made of ourselves”. This
“thin” view of autonomy is often said to be “content-neutral”, in the sense that
it is not concerned with the desirability of the choices which are made, so long
as they are freely chosen. As Lord Donaldson of Lymington MR observed in
the English Court of Appeal decision of Re T (Adult: Refusal of Treatment)
[1992] 3 WLR 782 at 796H–797A:
… the patient’s right of choice exists whether the reasons for

making the choice are rational, irrational, unknown or even
non-existent. That his choice is contrary to what is to be
expected of the vast majority of adults is only relevant if there
are other reasons for doubting his capacity to decide. …
117 However, this is by no means the only conception of autonomy which

exists. Even within the liberal tradition, there are those who would espouse a
“thicker” vision of autonomy that seeks to give effect not only to the current
desires of the decision-maker, but also to his long-term desires and values as
well. Proponents of this view would argue that a conception of autonomy
which gives effect to a person’s long-term goals is ultimately more productive
of liberty and human dignity than one which focuses on his immediate
volitions, which can be motivated by the exigencies of the moment. Take, for
example, a struggling drug addict who voluntarily admits himself to a
rehabilitation centre. Proponents of this view would argue that the doctors at
80
the facility would be justified, on the ground of autonomy, in preventing him

from consuming drugs even if – in the throes of withdrawal – that was in fact
his immediate desire, because, in doing so, the doctors would be respecting his
best desires and goals for his life (see, generally, Harry Frankfurt, “Freedom
of the Will and the Concept of a Person” (1971) 68 The Journal of Philosophy
5 on the difference between “first order” and “second order” desires).
118 Yet others would argue that both of these accounts, being
individualistic in nature, do not adequately take into account the socially
embedded nature of human beings and the importance of social relations to
one’s sense of self and to self-determination. They would argue for a more
substantive account of autonomy that reflects this relational dimension of
personhood (see, for example, Antony Blackburn-Starza, “Compensating
reproductive harms in the regulation of twenty-first century assisted
conception” in Revisiting the Regulation of Human Fertilisation and
Embryology (Routledge, 2015) (Kirsty Horsey ed) (“Compensating
reproductive harms”) at p 164). Among those who would support such a view
are theorists who belong to the communitarian (as opposed to the
individualistic) tradition. Feminist theorists would also support a more
substantive account of autonomy, and they would in addition stress the role of
traditional social structures in shaping beliefs and choices (see, for example,
Craig Purshouse, “How should autonomy be defined in medical negligence
cases?” (2015) 10 Clinical Ethics 107 (“Purshouse”) at 109).
119 What this brief account reveals is that the very concept of “autonomy”
itself is the subject of rigorous theoretical and conceptual disagreement as well
as controversy. The differences amongst these competing conceptions
(particularly if one subscribes to a “thicker” and more substantive account) of
the concept of “autonomy” turn on more fundamental questions of political
81
(the proper relationship between the State and its citizens) as well as moral
(different conceptions of “the Good”) philosophy. At the end of the day, it is
neither possible nor is it the place of this court to decide such questions. But
without a workable concept of autonomy, it is impossible to say that autonomy
can, in and of itself, be the subject matter of legal protection. This is not just
an academic issue, because it has important practical implications on the scope
of liability, as we shall explain in the section on the “over-inclusiveness”
objection.
The coherence objection
120 Even if a workable concept of autonomy could be found (such as the

“thin” account of autonomy described in the previous section), it would be
difficult to square it with the requirement of damage in the law of negligence.
As explained at [45] above, the common law has traditionally understood
“damage” in terms of objective detriment: in order to make out a cause of
action, claimants have to demonstrate that they are more than minimally worse
off than they would otherwise be. However, the difficulty is that most
interferences with autonomy would fall far short of this standard (see, for
example, Purshouse at 108). One need not look far. Any paternalistic act, such
as that of forcing someone to belt up while in a motor vehicle, would
technically constitute an interference with autonomy, even if it made the
person better off. It would be difficult, in those circumstances, to identify
precisely what it is that the claimant should be compensated for. This is quite
different from damage in the form of physical injury, for instance, which is
almost universally considered to be detrimental and therefore always sounds in
damages.
121 At the end of the day, the notion of an action for “loss of autonomy” is
82
more compatible with a rights-based vindicatory model of tort law. This

brings us back to the debate, which began in Rees, between the vindicatory
and compensatory approaches towards loss of autonomy claims. Under the
vindicatory approach, damages are awarded not as compensation for
consequential losses, but to mark the infringement of a person’s rights (see, for
example, Yip Man, “The Use Value of Money in the Law of Unjust
Enrichment” (2010) 30 Legal Studies 586 at 598). However, this poses a
“fundamental challenge to negligence principles” (see New Forms of Damage
at 79). It does not sit well with the structure of the common law in general and
the tort of negligence in particular. Unlike the civil law, the common law is
“less interested in rights” and more interested in the remedies for harms (see
Patrick S Atiyah, Pragmatism and Theory in English Law (Stevens & Sons,
1987) at p 21). In the English High Court decision of Kingdom of Spain v
Christie, Manson & Woods Ltd and another [1986] 1 WLR 1120, Sir Nicholas
Browne-Wilkinson VC (as he then was) put the point in the following terms
(at 1129D):
… In the pragmatic way in which English law has developed, a

man’s legal rights are in fact those which are protected by a
cause of action. It is not in accordance, as I understand it,
with the principles of English law to analyse rights as being
something separate from the remedy given to the individual.
…
122 While a rights-based analysis may be useful in understanding some

areas of the law (see, for example, Lord Diplock’s speech in the House of
Lords decision of Photo Production Ltd v Securicor Transport Ltd [1980] AC
827 at 848–849, where he famously explained the distinction between primary
and secondary obligations in a contract), it is quite another thing to say that the
infringement of a “right” can be a ground – in and of itself – for the award of
damages. In Regina (Lumba) v Secretary of State for the Home Department
(JUSTICE and another intervening) and other appeals [2011] 2 WLR 671, the
83
UK Supreme Court rejected the introduction of the concept of “vindicatory

damages” into the law of tort in no uncertain terms. Even in Chester, the
House of Lords did not award damages for the violation of patient autonomy
per se. Instead, it was the desire to vindicate the right of autonomy that
motivated the court to develop an exception to the traditional rules of
causation to allow recovery for a well-established head of harm (physical
injury in the form of post-surgical complications) based on regular
compensatory principles.
The over-inclusiveness objection
123 Finally, the recognition of “loss of autonomy” as a head of damage

would allow for the circumvention of existing control mechanisms in the tort
of negligence. The problem is that any form of damage can, with some
ingenuity, be reconceptualised in terms of a damage to autonomy. To take one
example, the persons who suffered from asymptomatic pleural plaques
following exposure to asbestos in Rothwell might be able to bring a claim for
loss of autonomy on the basis that their “right” to be free of physiological
changes to their body had been infringed. Further, they would also be able to
argue that their “right” to be free from the fear of developing a life-threatening
disease had been infringed, even though their anxiety had not risen to the level
of being a recognisable psychiatric illness and would therefore not have been
actionable under existing principles (for a statement of the principles
governing recovery for psychiatric harm, see Ngiam at [97], [109], and [131]).
124 An analogy can also be drawn with Gregg v Scott [2005] 2 WLR 268.
In that case, the defendant-doctor had negligently misdiagnosed a lump in the
claimant’s arm as a benign collection of fatty tissue when it was in fact a
tumour. If the mistake had been discovered earlier, the claimant would have
84
enjoyed a 42% chance of disease-free survival for 10 years. Unfortunately, by

the time the mistake was discovered, the claimant’s chances had fallen to only
25%. The claimant brought suit on the basis that the defendant’s negligence
had reduced his chances of survival. His claim was rejected by the House of
Lords, which refused to recognise a percentage reduction in the prospect of a
favourable medical outcome (a “loss of chance”) as a recoverable head of
damage. At [224]–[226], Baroness Hale explained that recognising such a
head of claim would have “substantial” implications since almost any claim
for a loss of an outcome could conceivably be reformulated as a claim for a
loss of a chance of that outcome, thus allowing the traditional rules on
causation to be circumvented at will. The recognition of “loss of autonomy” as
a head of claim would have similarly far-reaching implications. It would allow
the requirement of actionable damage to be side-stepped almost at will.
The “real loss”: genetic affinity
125 For the foregoing reasons, we are not disposed to recognise the loss of
autonomy as a recoverable head of damage in its own right. However (and this
is where we return to the point first discussed above at [113]), this is not to say
that we do not recognise the relevance of autonomy as an important
background consideration. We find the following statement made by
Lord Hoffmann in the House of Lords decision of Wainwright v Home Office
[2004] 2 AC 406 to be illuminating (at [31]):
There seems to me a great difference between identifying

privacy as a value which underlies the existence of a rule of
law (and may point the direction in which the law should
develop) and privacy as a principle of law in itself. The English
common law is familiar with the notion of underlying values—
principles only in the broadest sense—which direct its
development. A famous example is Derbyshire County
Council v Times Newspapers Ltd [1993] AC 534, in which
freedom of speech was the underlying value which supported
the decision to lay down the specific rule that a local authority
85
could not sue for libel. But no one has suggested that freedom
of speech is in itself a legal principle which is capable of
sufficient definition to enable one to deduce specific rules to
be applied in concrete cases. That is not the way the common
law works.
126 Although Lord Hoffmann made that remark in the course of rejecting
an argument that there should be a standalone common law tort of invasion of
privacy, we find the (general) principle–rule distinction to be a useful one. By
reason of the Respondents’ negligence, the Appellant has suffered a severe
dislocation of her reproductive plans that is constituted principally by the
fracture of biological parenthood. This is a complex concept; and to say
simply that she has suffered a “loss of autonomy” is only correct at the highest
level of generality. Her loss cannot be understood without a more developed
and substantive (as well as nuanced) notion of “autonomy” that takes into
account existing family building practices, kinship arrangements, and the
socially-constituted value of genetic relatedness (see, generally, Compensating
reproductive harms at p 155). What we propose to do is to unpack some of
these ideas in order to identify the “true loss” which she has suffered in this
case and explain why we consider that it can and should be considered a
distinct and recognisable head of damage.
127 We begin with this. The Appellant’s desire to have a child of her own,
with her Husband, is 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. Her desire (and
therefore her loss), as explained by Fred Norton in an excellent article, was for
“genetic affinity” (see Fred Norton, “Assisted Reproduction and the
Frustration of Genetic Affinity: Interest, Injury, and Damages” (1999)
74 NYU L Rev 793 (“Genetic Affinity”)). One prominent bioethicist put it the
following way (see Leon R Kass, Life, Liberty and the Defense of Dignity: The
Challenge for Bioethics (Encounter Books, 2002) at pp 96–97):
86
… the desire to have a child of one’s own is a couple’s desire to

embody, out of the conjugal union of their separate bodies, a
child who is flesh of their separate flesh made one. This
archaic language may sound quaint, but … this is precisely
what is being celebrated by most people who rejoice at the
birth of Louise Brown [the first baby born via IVF], whether
they would articulate it this way or not. Mr. and Mrs. Brown,
by the birth of their daughter, embody themselves in another,
and thus fulfil this aspect of their separate sexual natures and
of their married life together. … [emphasis in original]
128 To say, as Mr Lok does, that the issue here is merely one about
“‘incorrect’ / ‘undesired’ genetic mix or skin tone” (which we categorically
state to be language that we abjure), is to completely miss the point. As Norton
goes on to explain, the desire for genetic affinity is complex and multi-faceted.
It is, at its core, a desire for identity bounded in consanguinity. The ordinary
human experience is that parents and children are bound by ties of blood and
share physical traits. This fact of biological experience – heredity – carries
deep socio-cultural significance. For many, the emotional bond between
parent and child is forged in part through a sense of common ancestry and a
recognition of commonalities in appearance, temperament, and physical
appearance. For yet others, genetic continuity and biological lineage is deeply
important to religious and cultural belonging (see Dov Fox, “Reproductive
Negligence” (2017) 117 Colum L Rev 149 (“Reproductive Negligence”) at
179). This interest in affinity does not exist only at the bilateral level (between
parent and child), but also multilaterally – it affects the parents’ relationship
with their extended relations; the child’s relationship with his/her siblings; as
well as the family’s relationship with the wider community of which they are a
part.
129 It is “affinity” – which Norton uses as a convenient shorthand for all

those ties which are partly a result of genetic relatedness and partly a result of
the social significance which it carries – which distinguishes familial ties from
87
ties of friendship. Put simply, families cannot be thought of as just another

social group such as a football club or a running club. This difference lies at
the root of why the obligations of parenthood and the relationship between
parents and children are so special and socially fundamental: obligations of
kinship are inherited and not voluntarily assumed. Now, all this is not to lay
out a prescriptive definition of what family should be or, worse, to denigrate
adoption, which is a precious and valuable thing, but to explain that persons
who consciously choose to undergo IVF do so because of a deep desire to
experience, as far as it is possible, the ordinary experience and incidents of
parenthood. And when, as in the present case, a person has been denied this
experience due to the negligence of others then she has lost something of
profound significance and has suffered a serious wrong.
130 It is for this reason that we consider, returning to a point we made

above at [92], that one significant problem with the upkeep claim is that it
severely misconstrues the nature of the harm. It suggests that the Appellant’s
loss consists solely or only of the obligations of childbirth and rearing, when
that is far from being the case. The focus on the economic ramifications of
what has taken place ignores the serious consequences that the disruption of
the Appellant’s reproductive plans have had on her life. These consequences
consist not only in the frustration of the Appellant’s decisional autonomy – her
ability to make free choices about her reproductive life – but also in the
substantive impact that it has had on the Appellant’s well-being; in this case,
the Appellant has suffered, among other things, a loss of “affinity”, and the
chance to have a family structure which comports with her aspirations (see
Reproductive Negligence at 174). As a consequence of what has taken place,
the Appellant’s welfare has been detrimentally affected in myriad of
significant ways.
88
131 There is also another important aspect to genetic relatedness which

bears on the present discussion. In her affidavit, the Appellant deposed as
follows:
18 The aftermath has been extremely difficult for my

family and me to cope with. The pain and suffering which my
family and I had undergone physically, mentally and
emotionally post these unpleasant events are beyond words.
The past years had been agonizing.
19 Whenever we are out as a family, Baby P’s different
skin tone which is different from my eldest son’s, my
husband’s and/or mine never fails to draw curious looks from
the public. This always puts my family and me in an extremely
awkward situation turning joyous family time into depressing
moments.
20 Further, it is very disheartening to both my husband
and me when my eldest son queries us on the difference in the
way his sister looks. I simply cannot bring myself to explain to
my young son the tragedy that had occurred. I could tell that
he too is confused whenever Baby P’s presence draws curious
looks and comments from others.
21 In addition, my husband’s relatives, my relatives and
our friends who were aware that I was undergoing a second
IVF procedure to conceive our second child have been curious
about Baby P’s skin tone. Very often, we are faced with
questions as to why Baby P is born with a different skin tone.
132 In the Northern Ireland Court of Appeal decision of A and B by C

(their mother and next friend) v A – Health and Social Services Trust [2011]
NICA 28 (“A and B”), the appellants were twins born as a result of successful
IVF treatment. The mother’s eggs were used in the IVF process but the sperm
was donated by the respondent-Health and Social Services Trust. The usual
practice of the respondent would be to request only for sperm from
“Caucasian” or “white” donors for white couples, as the appellants’ parents
were in that case. However, due to a mistake, sperm from a donor who
identified himself as “Caucasian (Cape coloured)” was used instead (as
explained in the judgment, persons from the Cape coloured community in
89
South Africa have mixed ancestry and they have different racial markers,
including different skin tones). The appellants brought suit on the ground that
because of the respondent’s negligence, they had been born a different skin
colour from their parents. This, they argued, had led to their being the subject
of abusive and derogative comments and hurtful name calling which had
caused them emotional distress and affected their quality of life. The trial
judge dismissed the suit on the ground that a difference in skin colour could
not constitute a form of damage and his decision was upheld on appeal by the
Court of Appeal.
133 We respectfully agree with the decision in A and B – the appellants’

suit, pleaded as it was, was bound to fail. However, there are matters there
which give us pause for thought. In a perceptive and sensitive case-note
written on the decision, Sally Sheldon gently explains that the approach taken
by the court, which had the effect of “reducing the alleged harm to irrelevant
physical variation”, failed to give voice to the true harm that was suffered (see
Sally Sheldon, “Only Skin Deep? The Harm of Being Born a Different Colour
to One’s Parents” (2011) 19 Med L Rev 657 at 663). She elaborated that one
could not assess the case without a proper appreciation of the social context:
she observed that Northern Ireland, where the appellants lived, was
overwhelmingly white and there was a history of racially-motivated bullying
of children. To recognise this, she said, would not be to approve of such
attitudes, or to accept outmoded attitudes on race, but to recognise that race as
“a social concept can lie at the root of real and significant harms” (at 664). She
also drew attention to the role of physical resemblance in familial and social
relationships. As it turns out, the respondent had also mistakenly used the
same donor sperm for other white couples. In her article, Sheldon reproduced
segments of interviews that she had conducted with one other affected couple
90
in which the husband reported not only the racist bullying which his child had
been subjected to, but also the fact that their family had received unkind
questions as to his wife’s fidelity and the paternity of his children.
134 We draw attention to these points not because we approve of these

attitudes – and, indeed, we hasten to declare our categorical and unequivocal
objection to any suggestion that racism has any place in our society (especially
in the context of Singapore) – but because they represent the social reality that
we must confront, even if we do not support it. This was a point made recently
by the Constitutional Commission chaired by Sundaresh Menon CJ in respect
of race, which said that “Singapore cannot yet be considered a post-racial
society: this is a reality that must be faced, even if it is one that is not to be
endorsed” (see Report of the Constitutional Commission 2016 (17 August
2016) at para 5.15). We should also clarify that this should not be taken as
judicial sanction for any partiality for single-race families (the Appellant and
her Husband are themselves the product of a cross-cultural union, so this
should dispel any such notion), but as a recognition of 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 Appellant’s.
135 In summary, the loss suffered by the Appellant as a result of the

Respondents’ negligence is the result of a complex amalgam of biological,
social, ethical, and historical factors. Many of these have to do with certain
aspects of human relationships and personhood that are fundamental parts of
the human condition, such as the role of genetic relatedness, physical
resemblance, race, culture, and the importance of familial relations. Some are
matters which are rightly cherished; others are perhaps regrettable features of
the society which we inhabit. However, what is clear is that the Appellant
91
would be ill-served by a judicial refusal to fully engage with these issues in

order to recognise the true loss which has been suffered. In our judgment, the
Appellant’s interest in maintaining the integrity of her reproductive plans in
this very specific sense – where she has made a conscious decision to have a
child with her Husband to maintain an intergenerational genetic link and to
preserve “affinity” – is one which the law should recognise and protect. And
given that interests are the “positive aspects of damage” (see J A Weir,
“Liability for Syntax” [1963] CLJ 216 at 218), we hold that the damage to the
Appellant’s interest in “affinity” is a cognisable injury that should sound in
damages.
136 Before we leave this point, we observe an important difference

between the Appellant’s case and cases of wrongful conception. As
Prof Fordham explains, in cases of wrongful conception, a child born
following a failed sterilisation will be related to both parents and the parents
will have a normal addition to their family. There is no loss of “affinity” in the
sense that we have described above. However, in the present case, and in cases
of wrongful fertilisation more generally, the child who is born is physically
unlike the rest of the family (see Catastrophic Error at 237). This will not
only be a constant reminder of the mistake which had been made, but it also
carries profound social and emotional consequences which will persist for
years to come. Of course, this is not to say that plaintiffs in wrongful
conception and wrongful birth cases have not suffered a disruption to their
reproductive plans – they clearly have. However, the types of harm which
result from that disruption are qualitatively different from those raised in this
case. We therefore reserve for another day the question of whether plaintiffs in
those types of cases may bring a claim such as that which we are allowing
here.
92
Quantification of damages
137 The quantification of damages for intangible injuries is, by its very
nature, an exercise that is invariably fraught with difficulty, because it seeks to
ascribe a monetary value to matters which do not lend themselves easily to
pecuniary expression. In such cases, the law does not pretend that there is any
perfectly objective standard with which to conduct the assessment but it
strives to achieve two goals. The first is to “award sums which must be
regarded as giving reasonable compensation”; the second is to “endeavour to
secure some uniformity in the general method of approach [of quantification]”
(see the House of Lords decision of H West & Son Ltd and another v
Shephard [1963] 2 WLR 1359 (“West v Shephard”) at 1368 per Lord Morris
of Borth-y-Gest).
138 Three possible approaches present themselves for consideration:
(a) the “conventional award” in Rees;
(b) an award for “necessary expenses in avoiding or coping with

restrictions on autonomy”; and
(c) a conventional sum for general damages for non-pecuniary loss

tailored to the particular motivations which the Appellant had for
seeking IVF.
The “conventional award” in Rees
139 The loss of genetic affinity can be seen as an element of non-pecuniary

loss, akin in some ways to an award for pain and suffering, but with distinct
incidents. The quantification of damages for non-pecuniary loss is, as we have
mentioned earlier, inherently challenging, because there is “no pecuniary
93
guideline which can point the way to a correct assessment” (see the House of
Lords decision of Lim Poh Choo v Camden and Islington Area Health
Authority [1979] 3 WLR 44 at 54F per Lord Scarman). Any award that is
made cannot be the product of precise calculation but must necessarily be
“conventional” in the sense that it does not reflect the actual loss which has
been suffered but is instead a sum which is thought appropriate in the
circumstances. The figure arrived at is one which, in the words of Lord
Denning MR in the English Court of Appeal decision of Ward v James [1965]
2 WLR 455, is “derived from experience and from awards in comparable
cases” (at 470D).
140 However, the House of Lords in Rees took this one step further. Not
only was the sum of £15,000 that it awarded “conventional” in the sense that it
was not the product of precise calculation, but it was also said to be a fixed
sum that would be awarded to all future claimants. In the words of
Lord Millett, the conventional award of £15,000 “should not be susceptible of
increase or decrease by reference to the circumstances of the particular case”
(see Rees at [125]). The award of a fixed sum irrespective of the circumstances
of each case is not without precedent in the law of damages. Such an approach
is used in situations where a case-by-case analysis of the sum to be awarded
would be unseemly. For instance, in West v Shephard, the House of Lords was
faced with a claim for “loss of expectation of life” (in essence, a claim for the
tortious shortening of life) which, until 1982, was a head of loss in negligence
in the UK. In that case, the House of Lords affirmed its previous decision in
Benham and awarded a fixed sum of £500 (increased from £200 to account for
inflation) for this head of claim. In explaining why this approach was adopted,
Lord Pearce stated that it “would be lamentable if the trial of a personal injury
claim put a premium on protestations of misery and if a long face was the only
94
safe passport to a large award” (at 1388).
141 This was also the approach which Mr Lok urged us to adopt, should we
be disposed to make an award for loss of autonomy. He argued, amongst other
things, that such an approach would have the virtues of consistency,
uniformity, expedience, and fairness to commend it. We do not disagree that
this approach brings with it the advantages that Mr Lok pointed to. However,
after considered reflection, we do not consider it to be appropriate here for two
reasons. First, we consider that it would be contrary to the value of individual
autonomy, which lies at the heart of the current award. As one commentator
has argued, the award of 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 (see Nicolette M Priaulx, “Damages for the
‘Unwanted’ Child: Time for a Rethink?” (2005) Medico-Legal Journal 152 at
160). This would not only fly in the face of reality, but also fail to respect the
unique life plans of the individual who is before the court. If the objective is to
compensate the particular plaintiff for the particular types of harm which
have been inflicted, then the award must be tailored to the facts and
circumstances of each case.
142 Second, 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. This was done, for example,
95
when the Singapore Parliament passed the Civil Law (Amendment) Act 1987
(Act 11 of 1987) to create a statutory cause of action for “bereavement”, the
quantum of which was fixed by statute at $10,000 (it has since been increased
and presently stands at $15,000: see s 21 of the Civil Law Act (Cap 43, 1999
Rev Ed).
Award for necessary expenses to avoid or cope with restrictions on autonomy
143 The second approach was that suggested by Prof Goh. Under his
approach, “autonomy” consists of the “right to make life decisions so as to be
free of unsolicited legal or moral obligations”. Thus, autonomy is “lost” in this
sense when obligations are imposed upon a person (such as those arising out
of an unplanned pregnancy), and the damages for a loss of autonomy claim
should therefore be assessed in terms of the expenses necessary to overcome
or cope with the restrictions on autonomy which arise therefrom. This is
analogous to the so-called “functional approach” towards the assessment of
damages for non-pecuniary loss which is favoured in Canada, in respect of
which damages for non-pecuniary loss are awarded as a means for the plaintiff
to obtain substitute pleasures to replace the loss (see Law Commission, Report
on Damages for Personal Injury: Non-Pecuniary Loss, Law Com No 257,
15 December 1998) at para 2.4). Prof Goh explained that such an approach
would be compatible with the general compensatory nature of damages and
may include such expenses as childcare or live-in help that would enable the
parents to live their lives without the strictures imposed by having to care for
the child. In this way, the damages that may be awarded, he said, would
“overlap with aspects of upkeep expenses but are not the same conceptually”.
144 Owing to the different way in which we have conceptualised the

“harm” in this case, the methodology proposed by Prof Goh is, with respect,
96
plainly not appropriate. His approach seems at once to lead us to go too far
and yet also not far enough. It goes too far inasmuch as it attempts to pull
within its orbit all the obligations of parenthood which we have already
explained to be matters which are not capable of being the subject of
compensation – for instance, the cost of providing the child with the
“necessaries” of life would invariably have the effect of curtailing the parents’
ability to spend their money as they wish, but it is not possible to make this a
matter for compensation as it involves making, as a subject of compensation,
that which is incapable of being counted as loss (see above at [90]–[94]). Yet,
at the same time it does not go far enough because it rests on a particular view
of autonomy (as the negative freedom from constraints on action), and
therefore fails to recognise that a loss of autonomy may also be constituted in
the positive freedom of persons to pursue certain goods (in this case, an
interest in genetic affinity) and that the denial of such goods can result in
appreciable harms. Furthermore, given the fact that the restrictions on
autonomy would most tangibly manifest themselves in the financial
obligations incurred as a result of parenthood, Prof Goh’s approach would
have the effect of encouraging plaintiffs to come to court to prove the burden
that the child has been. As explained above at [95]–[100], this encourages
behaviour which is inimical to parenthood, and it provides another reason for
rejecting this approach.
Conventional sum for non-pecuniary loss
145 This leaves us with the final approach, which is to award a

conventional sum (which is not to be confused with a “conventional award”,
since it is not fixed across all cases, but is instead tailored to the unique facts
of each case: see above at [139]–[141]) for the non-pecuniary loss suffered in
this case. This approach is analogous to that employed by the Supreme Court
97
of British Columbia in Bevilacqua v Altenkirk [2004] BCSC 945

(“Bevilacqua”). Bevilacqua was a wrongful conception case involving a
negligent sterilisation. After an extensive analysis of the various authorities on
the subject, Groberman J concluded that while there was “no completely
adequate method of assessing damages for wrongful [conception] … the
appropriate method of assessment is one that treats the damages as essentially
non-pecuniary in nature” (at [182]). Elaborating, he continued as follows (at
[182] and [194]):
182 … While the redistribution of economic resources

within the family may be a factor in assessing those damages,
that redistribution should not itself be treated as if it were
simply a pecuniary loss. The lifestyle re-adjustments
necessary to effect the redistribution of resources are simply
an aspects [sic] of non-pecuniary damages.
…
194 In assessing the non-pecuniary loss, the court should
not attempt to assess the relationship of the child with the
parent. Such inquiries are invidious, and fail to respect the
child as an individual. Rather, the court should assess the
damages suffered by the parents by considering their reasons
for having wanted to limit the size of their family, and their
actual circumstances both at the time of the sterilization, and at
the time of the pregnancy and childbirth. From these
circumstances, the court may assess the magnitude of the
burdens that the parents face in raising a child they planned
not to have, and can arrive at an assessment of general
damages adequate to compensate the plaintiffs for the harm
suffered.
[emphasis added]
146 Groberman J observed that the motivations of the parents for wanting
to limit their family were different. Mrs Bevilacqua was motivated primarily
by the desire to limit the size of the family in order that they could broaden the
range of activities which each of them could participate in so her harm
consisted principally of the limitations imposed on her lifestyle choices and
autonomy arising out of, among other things, pregnancy and childbirth.
98
Mr Bevilacqua, on the other hand, was motivated principally by financial

reasons and thus the injury he suffered related to his need to work more than
he would otherwise have wanted to. After a careful consideration of the
evidence (in which he rejected certain assertions, such as the claim that
Mr Bevilacqua had been unable to complete his Master’s degree because of
the birth of the child), Groberman J awarded Mrs Bevilacqua Can$30,000 and
Mr Bevilacqua Can$20,000. In arriving at these specific figures, he was
guided by awards which had been made in other cases decided in British
Columbia in respect of the pain and suffering arising from an unplanned
pregnancy.
147 Given that the court in Bevilacqua was concerned with a different form
of harm, the approach adopted there cannot be transposed to the context of the
present case without modification. However, the aspect of the decision which
commends itself most to us is the focus on the precise motivations of each
plaintiff. In our view, this properly reflects the compensatory objective of an
award of damages. It is vital, in our judgment, 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 (see, generally, Reproductive
Negligence at 219–220). These types of harm will, as we explained above,
vary depending on the particular reasons fertility treatment was sought, the
precise manner in which the negligence took place, and the personal
circumstances of the plaintiff (such as the presence of other children or the
familial and/or cultural histories particular to him or her).
148 Of course, there is still the matter of fixing a precise quantum. Unlike
the court in Bevilacqua, we have no comparable precedents (whether local or
foreign) against which to draw appropriate comparisons. In the circumstances,
we consider that we should benchmark the eventual award as a percentage of
99
the financial costs of raising Baby P. Although we have determined that 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, in our view, 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. This
approach would have several advantages. First, to the extent that one of the
purposes behind the grant of damages for non-pecuniary loss is to provide
solace to the claimant, we consider that an award which is benchmarked
against upkeep costs would achieve this purpose. Second, any such award
would not be derisory but would instead produce a substantial award that
offers “reasonable compensation”. Indeed, we note that such an approach is
not wholly without precedent. Prof Amirthalingam has suggested that the
majority in Chester implicitly recognised the deprivation of patient autonomy
as the “harm” in that case, and the physical injury (the surgical complication)
was a matter which went to the quantification of loss (see Gist of Negligence
at 34).
149 Lest there be any confusion, we clarify that an award for loss of
genetic affinity and an award of upkeep costs rest on very different theoretical
bases. The former is an award of damages for non-pecuniary loss as
compensation for the plaintiff-mother’s loss of genetic affinity; the latter is an
award for pecuniary loss arising from the expenses incurred in relation to the
raising of the child. Our approach of using the latter as a benchmark for
assessing the magnitude of the former does not derogate from what we have
said about how the obligations of parenthood are incapable of being regarded
by the law as loss (see [90]–[94] above). Whilst it is perhaps not theoretically
elegant, the approach of benchmarking the present award against upkeep costs
is practical (provided one always bears in mind that the quantum of full
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upkeep costs is but a benchmark) and it prevents the court from having to
pluck a figure out of thin air, so to speak. In any event, a theoretically elegant
result would, in any event, be elusive in the extreme, given the nature and
complexities of the issue and the attendant difficulties that arise from such a
controversial area of the law.
150 As we have explained above at [102], the award of full upkeep costs
would amount to giving the Appellant an indemnity for the costs of raising
Baby P. This would not, in our judgment, be appropriate compensation for the
loss which has been suffered. However, it is also neither logical nor desirable
to award the Appellant a merely nominal sum because to do so would be to
make a mockery of the value of the interest at stake. It is clear that the
damages to be awarded should therefore lie somewhere between these two
extremes. On the issue of precisely where along the spectrum it should fall, the
facts and circumstances are of the first importance. In our judgment, it is clear
that substantial damages ought to be awarded to the Appellant. Whilst (as we
have already noted), the Appellant and her Husband have accepted Baby P as
their own, the reality of the situation cannot be denied (see, especially, the
anguish, stigma, disconcertment, and embarrassment suffered by the Appellant
and her family as expressed in the Appellant’s affidavit (reproduced above at
[131] and discussed at [132]–[135])). In the circumstances, we are of the view
that the Appellant ought to be awarded 30% of the financial costs of raising
Baby P as compensation, which is an amount that, we consider, properly
reflects sufficiently the seriousness of the Appellant’s loss and is just,
equitable, and proportionate in the circumstances of the case.
151 We therefore remit the issue of the quantum of damages to be awarded

to the High Court for assessment in accordance with what has been stated in
the preceding paragraphs. We observe, as a final matter, that this exercise of
101
assessment may not be without difficulty. During the course of the hearing,
our attention was drawn to some of the potential pitfalls. These include the
fact that the financial costs of raising a child would depend, in large part, on
the subjective preferences of the claimants (for instance, whether they insist on
private education or extra-curricular enrichment classes). As pointed out by
Gleeson CJ in Cattanach at [26], in a great many cases, the line between legal
obligation, moral obligation, and parental discretion will be difficult to draw.
Furthermore, it is difficult to identify a suitable cut-off date for liability since
it is common in modern affluent societies for children to be dependent on their
parents for a longer time than was previously the case. However, given that we
have not heard the parties on these points, we do not think it proper for us to
express any concluded views on the proper methodology of assessment.
Undoubtedly, the potential difficulties and issues raised here and/or at those
proceedings will be dealt with by the judge concerned after receiving detailed
submissions on the matter.
152 Before we leave this point, however, we would like to observe that
given the protracted nature of the legal proceedings up to this particular point
in time, it would be preferable for the parties to arrive at an amicable
settlement in relation to the issue of quantification. Whilst we understand that
the Appellant and her Husband have confronted – and will continue to
confront – difficult emotional and relational challenges, we think that an
amicable settlement will assist them in achieving some closure. We do not
consider that an extension of this litigation would be of any help to them in
putting these unfortunate experiences behind them and moving forward in life
(together with Baby P). It would also be appropriate, in our view, for the
Respondents to assist the Appellant and her Husband in achieving such
closure.
102
The issue of punitive damages
153 The final issue which was canvassed in this appeal concerns the issue
of punitive damages in the law of tort. There are weighty legal issues that arise
for consideration. The first, and perhaps most crucial, is whether it is now time
to depart from the relatively straitjacketed approach embodied in the House of
Lords decision of Rookes v Barnard [1964] AC 1129 (“Rookes”), which, as
we will elaborate below, lays down three extremely limited situations in which
the English courts would be prepared to award punitive damages in the
tortious context. It is only if this hurdle can be overcome that the next issue
arises for decision, which is whether punitive damages can ever be awarded
when the defendant has been punished under the criminal law. If the answer to
that is in the affirmative, the final issue which arises for consideration is
whether a punitive award can ever be made in respect of a negligent (as
opposed to a deliberate or intentional) act. As will be clear in the course of our
analysis, these are difficult questions not only of legal principle but also of
policy, and are subjects in respect of which courts in different jurisdictions
have arrived at different conclusions. It is only if these legal hurdles can be
surmounted that we can turn to the facts of the present appeal to consider if
this is an appropriate case for an award of punitive damages to be made.
154 Before we turn to consider these issues, we will deal with a

preliminary point. As noted earlier in this judgment, the second Respondent is
liable not only in tort but also in contract as well. This raises the issue as to
whether punitive damages can be awarded for a breach of contract. Given the
present controversy surrounding this particular issue and the fact that the focus
in the present appeal has been on the scope for the award of punitive damages
in the law of tort, we do not propose to consider the issue of punitive damages
in a contractual context. That is an extremely difficult subject in its own right
103
and we consider that it can and should be left for another day, when the issue
is squarely raised on the facts of the case and a decision is necessary.
The decision in Rookes
155 Punitive damages were first awarded in a series of 18th century cases
involving the arbitrary interference by public officers with the private rights of
citizens (see Harry Street, Principles of the Law of Damages
(Sweet & Maxwell, 1962) at p 29). In these cases, the juries awarded damages
far in excess of the material harm constituted by such trespasses. In Huckle v
Money (1763) 95 ER 768, the Court of the King’s Bench held that the jury had
“done right in giving exemplary damages”, stating that “to enter a man’s
house by virtue of nameless warrant, in order to procure evidence, is worse
than the Spanish Inquisition” (at 769). In a later decision by the same court in
Wilkes v Wood (1763) 98 ER 489, Pratt LCJ explained that juries had it in
their power to “give damages for more than the injury received” and that
damages were “designed not solely as a satisfaction to the injured person, but
likewise as a punishment for the guilty, to deter any such proceeding for the
future, and as proof of the detestation of the jury to the action itself” (at 498–
499). In this short passage, the three-fold purpose of punitive damages – to
punish, deter, and condemn – was succinctly articulated for the first time.
156 Before we proceed further, we will say a few words about terminology.
First, the expression “punitive damages” has historically been used
interchangeably with the expression “exemplary damages” and no distinction
is to be drawn between them (see the Singapore High Court decision of Li Siu
Lun v Looi Kok Poh and another [2015] 4 SLR 667 (“Li Siu Lun”) at [195]).
The former was favoured until the decision of the House of Lords in
Cassell & Co Ltd v Broome and another [1972] 2 WLR 645 (“Broome (HL)”)
104
where Lord Hailsham of St Marylebone LC said that he preferred the

expression “exemplary damages” because he thought it “better expresses the
policy of the law” (at 671D). The Law Commission of England and Wales,
however, thought otherwise (see Law Commission, Report on Aggravated,
Exemplary and Restitutionary Damages (Law Com No 247, 11 September
1997) (“the Law Commission Report”) at para 5.39. Ultimately, we do not
think anything turns on this, but for the sake of consistency, we shall use the
expression punitive damages, which appears to be the more commonly used
term in Singapore. Second, punitive damages are to be distinguished from
“aggravated damages”. Whilst there was initially some confusion as to
whether they were to be equated, this issue was put to rest by Lord Devlin in
Rookes (at 1221). 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, either or both of which
might have caused further injury to the plaintiff’s dignity and pride (see the
decision of this court in Koh Sin Chong Freddie v Chan Cheng Wah Bernard
[2013] 4 SLR 629 at [75]–[77]).
The position in the UK
157 It was once thought that exemplary damages could be awarded in any
case of tort where the defendant’s conduct had been particularly outrageous
(see, for example, Clerk and Lindsell on Torts (Michael Jones gen ed)
(Sweet & Maxwell, 21st Ed, 2014) (“Clerk and Lindsell”) at para 28-139).
This thinking changed with the decision of the House of Lords in Rookes. In
that case, an agreement was reached between the plaintiff’s trade union and
105
his employer that no strike would be organised and that any disputes would be
referred to arbitration. Subsequently, the plaintiff resigned from his
membership of the trade union and the union, acting through the defendants,
informed the plaintiff’s employer that unless the plaintiff was dismissed
immediately, the other members of the union would go on strike. The
employer gave in to the threat and dismissed the plaintiff. The plaintiff then
sued the defendants for the tort of intimidation. The jury found the defendants
liable and awarded the plaintiff a sum of £7,500, a large part of which
comprised punitive damages. The Court of Appeal reversed the decision on
liability. The plaintiff appealed against the Court of Appeal’s decision on
liability while the defendant cross-appealed on the question of damages. The
House of Lords restored the decision of the trial court on liability but it set
aside the jury’s award on the ground that punitive damages were not available
on the facts of that case.
158 Lord Devlin, who delivered the only fully reasoned speech on the issue
of damages, made it clear where his sentiments on the matter lay. From the
outset, he observed that the object of damages in the “usual sense” was to
compensate; however, the object of punitive damages was to “punish and
deter”. He then framed the issue as follows: “your Lordships therefore have to
consider whether it is open to the House to remove an anomaly from the law
of England” (at 1221). After an extensive review of the authorities, he
concluded that two reasons compelled a negative answer to that question: the
first was the weight of precedent; the second was the fact that punitive
damages could sometimes serve a “useful purpose in vindicating the strength
of the law” (at 1225–1226). However, he held that the award of punitive
damages was henceforth to be restricted to cases falling within one of the
following three categories:
106
(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.
159 Further, Lord Devlin also set out three considerations which he said
ought always to be borne in mind when a punitive award was being
considered. First, the claimant must be the victim of the punishable behaviour
(at 1227). Second, the power must be exercised with restraints because the
award of punitive damages could “be used against liberty” (at 1227). 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 1228).
160 The so-called “categories test” set out in Rookes was subjected to
stinging criticism by the English Court of Appeal in Broome v Cassell & Co
Ltd and another [1971] 2 WLR 853, where Lord Denning MR described it as
“hopelessly illogical and inconsistent” (at 870G) and considered that it had
been given per incuriam (at 871D). The House of Lords, Viscount Dilhorne
dissenting, disagreed (see Broome (HL)). Lord Reid, who had been a member
of the coram which decided Rookes, candidly admitted that the categories
approach was not altogether satisfactory, but defended it on the basis that it
was the best that could have been done in the circumstances. He observed as
follows (at 683G):
107
I must now deal with those parts of Lord Devlin's speech

which have given rise to difficulties. He set out two categories
of cases which in our opinion comprised all or virtually all the
reported cases in which it was clear that the court had
approved of an award of a larger sum of damages than could
be justified as compensatory. Critics appear to have thought
that he was inventing something new. That was not my
understanding. We were confronted with an undesirable
anomaly. We could not abolish it. We had to choose between
confining it strictly to classes of cases where it was firmly
established, although that produced an illogical result, or
permitting it to be extended so as to produce a logical result. In
my view it is better in such cases to be content with an illogical
result than to allow any extension. [emphasis added]
161 In AB and others v South West Water Services Ltd [1993] 2 WLR 507,
the English Court of Appeal went even further in attempting to restrict the
ambit of punitive damages. Relying on certain dicta made by Lord Hailsham
and Lord Diplock in Broome (HL), the court added a further “cause of action”
requirement: in order for punitive damages to be available, the cause of action
had to be one in respect of which punitive damages had been awarded before
Rookes was decided. This “cause of action test” was accepted in several
subsequent authorities (see the Law Commission Report at para 4.88) before it
was conclusively overruled by the House of Lords in Kuddus v Chief
Constable of Leicestershire Constabulary [2002] 2 AC 122 (“Kuddus”) as
being contrary to authority. Therefore, the position in England at present is
that punitive damages may be awarded for any tort as long as it falls within
one of the categories enunciated in Rookes (see Clerk & Lindsell at para 28-
146).
The position in the Commonwealth
162 The categories test has, however, been rejected by almost all the other
major Commonwealth jurisdictions. In Uren v John Fairfax & Sons Pty Ltd
(1966) 117 CLR 118, which was decided soon after Rookes, the High Court of
108
Australia declined to adopt the categories test. Its objections were rooted both
in precedent (since punitive damages in tort had always been available in
Australia on grounds wider than would be available under Rookes, which was
not binding on the High Court of Australia) and in principle. Taylor J was of
the view that the categories were too restrictive and also thought their
boundaries to be nebulous. For instance, he said, of the second category, that
there was no reason for the law to look with particular disfavour on wrongs
committed with a profit motive and to consider them worse than, say, wrongs
which were committed maliciously or vindictively (at 138). Windeyer J
focused on the general principle underlying punitive damages which, in his
view, was to make it clear that tort did not pay. That being the case, he said
that he could see no reason to restrict the award of punitive damages only to
the instances identified by Lord Devlin (at 149). Owen J opposed the
restrictions on the ground that they were not in accord with precedent and
would remove what he considered to be a “useful protection” against persons
who exercised their power in disregard of the rights of others (at 160–161).
163 Today, punitive damages may generally be awarded in Australia for

cases involving intentional torts, in addition to being generally available in
actions in nuisance which cause property damage. In general, their availability
is contingent on the subjective state of mind of the defendant when he
committed the tort, with such damages are awarded chiefly in cases involving
“conscious wrongdoing in contumelious disregard of the plaintiff’s rights”
(see the decision of the High Court of Australia in Whitfeld v De Lauret and
Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ, reaffirmed in Gray v Motor
Accident Commission (formerly State Government Insurance Commission)
(1998) 158 ALR 485 (“Gray”) at [20]). Punitive damages have also been held
to be available where the defendant’s post-tort conduct evinces a callousness
109
and indifference towards the interests of the plaintiff. There is, however, no
need to demonstrate that the wrongdoing was motivated by any malice
towards the plaintiff (see, generally, R P Balkin and J L Davis, Law of Torts
(LexisNexis Butterworths Australia, 4th Ed, 2009) at para 27.10).
164 New Zealand has likewise rejected the categories test. In Taylor v
Beere [1982] 1 NZLR 81, a decision of the New Zealand Court of Appeal,
Richardson J held that the logic behind the categories was “not immediately
apparent” and that the “arbitrary limitations of the kinds formulated by
Lord Devlin would be wrong in principle and unsatisfactory in practice” (at
92). In so far as the first category in Rookes was concerned, he asked
rhetorically: “Why should servants of the government be singled out?”
“[T]echnicalities of employment status”, he held, were not a good basis for
determining whether there had been heinous conduct on the part of the
defendant which justified a punitive award of damages. In so far as the second
category in Rookes was concerned, he stated that he did not see any basis for
singling out acts performed with a profit motive. Again rhetorically, he asked:
“Is oppressive, calculated, conduct any more opprobrious or otherwise
inherently worse if motivated by financial greed than, say, by spite, malice or
a lust for power over others?” (at 92). Summing up, he expressed the view that
it was the “quality of the conduct which should count” and that the “the
availability of the remedy of exemplary damages should not hinge on the
occupation of the defendant or on any fine analysis of his motivation” (at 92).
165 Today, the courts in New Zealand exercise the power to award punitive
damages with considerable restraint, and save it only for cases where there has
been “truly outrageous conduct” that cannot be punished in any other way (see
the decision of the New Zealand Court of Appeal in Dunlea v Attorney-
General [2000] 3 NZLR 136 at [34] per Keith J, with whom Richardson P,
110
Gault, and Blanchard JJ agreed).
166 Canada has also rejected the categories test. In Paragon Properties
Ltd v Magna Envestments Ltd (1972) 24 DLR (3d) 156 (“Paragon
Properties”), the Appellate Division of the Alberta Supreme Court declined to
follow Rookes. Clement JA, dissenting with regard to the result but not on the
point of principle involved, explained that the project of categorisation was
inconsistent with the general purpose of the punitive damages jurisdiction,
which was to censure, deter, punish, and to serve as a recognition of the
unnecessary humiliation and harm which the victim had been subject to (at
167). He opined that:
It is the reprehensible conduct of the wrongdoer which

attracts the principle, not the legal category of the wrong out
of which compensatory damages arise and in relation to which
the conduct occurred. To place arbitrary limitations upon its
application is to evade the underlying principle and replace it
with an uncertain and debatable jurisdiction.
167 This view was subsequently endorsed by the Supreme Court of Canada
in Vorvis v Insurance Corporation of British Columbia [1989] 1 RCS 1085,
where McIntyre J held definitively that Rookes should not apply in Canada (at
1105a–g). At present, punitive damages may be awarded in all tort claims in
Canada, though they are more frequently awarded in cases involving
intentional torts (see, generally, Lewis N Klar, Tort Law (Carswell, 5th Ed,
2012) at p 121). One caveat to this is that it has been held that it should not be
awarded in cases of negligence unless the circumstances are “extreme” (see
the decision of the New Brunswick Court of Appeal in Canadian National
Railway Co v di Domenicantonio (1988) 49 DLR (4th) 342).
168 The position in Malaysia is somewhat less clear. In a recent case, the
Malaysian Court of Appeal held that Rookes was the “most important
111
authority for the award of exemplary damages” and disallowed a claim for
punitive damages on the ground that it did not fall within one of Lord Devlin’s
three categories (see Sistem Televisyen Malaysia Bhd & Ors v Nurullah bt
Zawawi & Anor [2015] 6 MLJ 703 at [31]–[32]). In the same year, Rookes
was also applied by a differently constituted bench of that same court in
Zulkiply bin Taib & Anor v Prabakar a/l Bala Krishna & Ors and other
appeals [2015] 2 MLJ 607, which described the decision as the “best reference
for a consideration of an award of exemplary damages” (at [74]). However, it
has also been observed that the practice is less than uniform, and that the
Malaysian courts have awarded punitive damages in cases falling outside the
scope of Rookes (see the decision of the Malaysian High Court in Cheong Fatt
Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd (Hong Hing Thai
Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354 at [53]). To the best of our
knowledge, the issue has never been considered by the Federal Court of
Malaysia.
169 The only clear exception, perhaps, is Hong Kong, where it has been
stated that Rookes has consistently been followed “without question” (see the
decision of the Hong Kong Court of First Instance in A & Ors v Director of
Immigration [2009] 2 HKC 452 at [53(10)]. Rookes has also been applied by
the Hong Kong Court of Appeal on a number of occasions, though each time
without substantial argument as to its correctness (see, for example, China
Light & Power Co Ltd & Anor v Ford [1996] 2 HKC 23 and Allan v
Ng & Co & Anor [2012] 2 HKC 266). To the best of our knowledge, the issue
has never been considered by the Hong Kong Court of Final Appeal.
The position in Singapore
170 It has been hitherto at least tacitly assumed that Singapore courts
112
would follow Rookes. In the Singapore High Court decision of Afro-Asia

Shipping Company (Pte) Ltd v Da Zhong Investment Pte Ltd [2004] 2 SLR(R)
117 at [134], Judith Prakash J (as she then was) held that Rookes was good law
in Singapore even though the majority of Commonwealth jurisdictions had
declined to follow it (at [134]). In Li Siu Lun, which was also a decision of the
Singapore High Court, Belinda Ang Saw Ean J likewise held that Rookes
would apply in Singapore until such time as this court ruled otherwise (at
[204]). In MFM Restaurants Pte Ltd v Fish & Co Restaurants Pte Ltd [2011]
1 SLR 150, we suggested that the position in Singapore might be broader than
that in the UK, but we left the point open for further argument on another day
(at [53], citing the observations made by the Singapore High Court in CHS
CPO GmbH (in bankruptcy) and another v Vikas Goel and others [2005]
3 SLR(R) 202). Today, we squarely confront the issue of whether Rookes
should be followed.
171 As a starting point, we begin with the notion that the award of punitive
damages is “anomalous”. This has always been the principal (if not sole)
justification for the categories test (see above at [158] and [160]). The
argument is that the award of punitive damages confuses the function of the
civil law, which is to compensate, with that of the criminal law, which is to
deter and punish, and therefore should be kept within narrow confines (see
Broome (HL) at 683B per Lord Reid). However, we do not think this to be
correct as a matter of principle. As Lord Wilberforce forcefully argued in the
same case, this assertion rests on two contestable notions: first, that the civil
law is focused exclusively with compensation; and second, that punishment
and deterrence are the exclusive preserves of the criminal law. The former
may be questioned because there are civil wrongs, of which the tort of
defamation is but one example, where there is a “delictual element which
113
contemplates some penalty for the defendant”; and the latter is a normative
claim which is often made without any clear support in authority (at 708H–
709C).
172 We respectfully agree with Lord Wilberforce. 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. In
the New Zealand Court of Appeal decision of Daniels v Thomson [1998]
3 NZLR 22 (“Daniels”), Thomas J (dissenting, but not on this particular point)
stressed the wider functions of the law of tort in, among other things,
vindicating and appeasing the victim of wrongs, condemning socially
disreputable conduct, giving a voice to the victims of civil wrongs (its
“therapeutic function”), and in signalling society’s commitment to retributive
justice (at 68–70). In the words of the Law Commission of England and
Wales, without punitive damages there would exist “gaps” in the law in which
existing “remedies or sanctions are inadequate, in practice, to punish and deter
seriously wrongful behaviour” (see the Law Commission Report at para 1.15).
We will discuss this in greater detail at [185] below but the point, for present
purposes, is (as the Law Commission opined) that the existence of these
“gaps” in the law gives rise to a “practical need” for punitive damages to act
as a “supplementary device” to remedy these perceived deficiencies (see the
Law Commission Report at paras 1.15 and 5.12).
173 In other words, the award of punitive damages has a distinct and
important role to play in the context of private law by filling that important
interstitial space that exists between those cases where the demands of justice
are served purely by the award of a compensatory sum, and those cases which
properly attract criminal sanction. Among other things, it permits the private
114
enforcement of important interests (particularly personality interests) without

the need for individuals to bring a private prosecution (which is rarely done in
practice, outside of cases involving intellectual property violations) and it
allows for punishment to be effected without the corresponding stigma of a
criminal sanction, which is not always appropriate in all cases of wrongdoing
(see the Law Commission Report at para 5.23). While the terrain covered by
punitive damages has been eroded somewhat by the development of other
forms of redress such as judicial review and the emergence of restitutionary
damages (see Kuddus at [107]–[109]) and also by the judicial recognition of
other heads of damage (as has been done in this case), it has not disappeared
completely. The option of awarding punitive damages still remains an
important tool in the judicial toolbox.
174 If this is accepted, as we think it ought to be, then the principal

criticisms made against the categories test are irresistible. Chiefly, these are
twofold. First, 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 by public servants (the first category) or those committed in service
of a profit motive (the second category) for special condemnation when there
are so many other types of cases which are equally, if not even more,
opprobrious. The categories are the product of history and not principle. They
represent the types of cases in which punitive damages were awarded before
Rookes which the House of Lords was not prepared to overrule (indeed, the
Law Commission of England and Wales mused that Lord Devlin might have
taken the bold step of proposing the complete abolition of punitive damages
115
had the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 been in
force then: see the Law Commission Report at para 5.1).
175 For the foregoing reasons, which are largely the same as those given
by the courts in Australia, New Zealand, and Canada, we conclude that the
categories test set out in Rookes should no longer be a part of Singapore law.
Although the common law of England is part of Singapore law pursuant to
s 3(1) of the Application of English Law Act (Cap 7A, 1994 Rev Ed), it is
subject to the requirements of suitability (or applicability) as well as
modification under s 3(2) (which also reflects the (prior) requirements under
the general reception of common law). In our view, this is an occasion when
the hitherto received common law as embodied in Rookes ought to be
departed from. That law is no longer applicable to the circumstances of
Singapore and, in any event, ought to be modified by being replaced with a
more logical as well as appropriate rule. This is the issue to which we shall
now turn.
Developing a coherent framework
176 We begin with the basic question: When should punitive damages be
awarded? In Broome (HL), Lord Diplock commented that the case law was
replete with “a whole gamut of dyslogistic judicial epithets such as wilful,
wanton, high-handed, oppressive, malicious, outrageous” (at 723B). For
instance, in Australia, the preferred test is that punitive damages should be
awarded where there has been “conscious wrongdoing in contumelious
disregard for another’s rights” (see above at [163]). It may be that it is quixotic
to expect any single test to cover the entire field, but we consider that it is
useful to settle on something as a touchstone. With this in mind, we indicate
our preference for the expression “outrageous” because it – of all the
116
adjectives used – relates not to the manner of the commission of the act, but to
its gravity. This is an important point. As has been stressed in the various
decisions cited above, if the award of punitive damages is a response to
conduct which is beyond the pale and therefore deserving of special
condemnation, then any restrictions imposed must be related to the character
of the offending conduct. In our judgment, therefore, 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.
177 Two specific considerations that merit more detailed discussion, both
of which arise on the facts of this case, are:
(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.
The relevance of criminal punishment
178 In Rookes, Lord Devlin stressed that exemplary damages should only
be awarded as a last resort, where the existing remedies are inadequate. He
said that when assessing damages in a case where punitive damages are
available, the jury should be directed that (at 1228):
… if but only if, the sum which they have in mind to award as
compensation (which may, of course, be a sum aggravated by
the way in which the defendant has behaved to the plaintiff) is
inadequate to punish him for his outrageous conduct, to mark
their disapproval of such conduct and to deter him from
repeating it, then it can award some larger sum. [emphasis
added in italics and bold italics]
179 This restriction was unanimously affirmed by all seven judges in
117
Broome (HL) and has since come to be known as the “if but only if” test (see
the Law Commission Report at paras 4.115). It has been widely accepted
throughout the Commonwealth, even though the categories test has been
widely rejected (see the Law Commission Report at para 5.99). The principle
behind it was lucidly set out by Lord Reid in Broome (HL) at 685G–686B,
where he explained that one always had to bear in mind that the task of the
court was not to devise two sums (one for compensation and one for
punishment), but to decide on an appropriate sum which served two purposes:
compensation and punishment. If the sum the court had in mind as
compensation was already sufficient to serve the aim of punishment, then no
more need be added. In our judgment, this is a sound principle and it should be
followed.
180 To put the matter in more general terms, in considering whether

punitive damages ought to be awarded, the court should consider whether
there is any need for such an award. In doing so, it will have to consider not
only the adequacy of any compensatory award, but also the existence and
adequacy of any criminal and/or disciplinary sanctions that might already have
been imposed on the defendant which could (in turn) obviate the need for a
punitive award. This is already an established practice and two examples will
suffice.
(a) In Archer v Brown [1984] 3 WLR 350, the defendant

fraudulently induced the plaintiff to conclude two agreements for the
purchase of shares in a company when, in actual fact, the defendant
owned no shares in the said company. As a result of this, the plaintiff
ended up heavily in debt and he sued in the tort of deceit, claiming
punitive damages. This was refused by the English High Court on the
ground that the defendant had already been convicted and imprisoned
118
for his fraud and, since the purpose of punitive damages was to punish
the defendant, such damages ought not to be awarded where the
defendant had already been punished for his tortious act by the
criminal courts (at 368C–D).
(b) In KD v Chief Constable of Hampshire [2005] EWHC 2550

(QB), the plaintiff claimed to be the victim of sexual harassment by a
police constable. The plaintiff sought an award of punitive damages
but this was refused by the English High Court on the ground that it
was unnecessary since the primary tortfeasor (the constable accused of
harassment) had already faced disciplinary proceedings, in which he
had been found guilty and fined.
181 In Gray, the majority of the High Court of Australia held that where
the criminal law had been brought to bear on the wrongdoer and “substantial
punishment” had been inflicted for “substantially the same conduct which is
the subject of the civil proceeding”, this was an absolute bar to the imposition
of punitive damages (at [40]). Two reasons were given for this bright-line rule:
first, the purposes for the award of punitive damages would already have been
wholly met if substantial punishment had been inflicted by the criminal law (at
[42]); and second, the award of punitive damages in this context might result
in the imposition of double punishment (at [43]). The majority was at pains to
stress that this was not merely a matter of “discretion”, but a “rule” which
governed the court’s punitive damages jurisdiction (at [55]). Kirby J, who was
in the minority on this issue, did not dispute the validity of these two
considerations. However, he would have held that the court should still retain
a discretion to award punitive damages even where the defendant had been
punished either under the criminal law or through disciplinary sanctions. That
being said, he swiftly clarified that it was a “discretion to be exercised in
119
accordance with principle”, and explained that a court in exercising its

discretion should have regard to the particular purposes for which a punitive
award was contemplated in that case and the extent to which those purposes
had already been achieved by criminal punishment in exercising its discretion
(at [97]).
182 The choice between these two approaches is, as was pointed out in
Daniels, one of policy (at 49 per Richardson P, Gault, Henry, and Keith JJ).
This was also the view of the Privy Council. In W v W [1999] 2 NZLR 1
(“W v W”), which was the decision of the Board upon hearing the appeal from
Daniels, the Privy Council held that the question whether punitive damages
would be available where the defendant had already been punished under the
criminal was one which “depends on a perception of the balance of public
advantage and disadvantage” and was therefore a question of policy par
excellence in respect of which the Board would not substitute its views for that
of the national court (at 4 per Lord Hoffmann). We agree with the
characterisation of this question as being a question of policy. However, it is a
choice that is informed, in part, by deeper questions of principle concerning
the comparability of civil and criminal punishments, as well as the purpose of
an award of punitive damages. After careful consideration, we prefer 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. We give two reasons
for this conclusion.
183 First, we consider that civil punishment performs a distinct and unique
function and its purposes are not exhausted just because the criminal law has
been brought to bear on the defendant. A condign criminal sentence is one
which accurately reflects society’s interest in the “four pillars of sentencing” –
120
that is to say, punishment, deterrence, prevention, and rehabilitation (see the

decision of the English Court of Appeal in R v James Henry Sargeant (1974)
60 Cr App R 74 at 77, cited with approval by this court in Public Prosecutor v
Kwong Kok Hing [2008] 2 SLR(R) 684 at [17]). While there is no doubt that a
punitive award has important social functions as well (such as to mark
society’s disapproval of outrageous conduct), its chief purpose is to vindicate
the plaintiff’s private interests in punishing the defendant, vindicating his
interests, and seeking appeasement. In short, therefore, “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” (see
Daniels at 76 per Thomson J). For this reason, we disagree with the majority’s
opinion in Gray that the purpose behind a punitive award would always have
been wholly met if substantial punishment had been already inflicted by the
criminal law (see above at [181]).
184 Take, for instance, an offence involving a youthful offender. In such a

case, it is well-established that “rehabilitation must be the dominant
consideration” in the sentencing calculus (see the Singapore High Court
decision of Public Prosecutor v Mohammad Al-Ansari bin Basri [2008]
1 SLR(R) 449 at [34]). However, the principle of rehabilitation – while
undoubtedly an important societal object – has little role to play in the design
of a punitive award. This being the case, any criminal sentence meted out may
not adequately reflect the victim’s legitimate private interests in punishing a
tortfeasor for his outrageous conduct, vindicating his interests, or in seeking
appeasement. Indeed, it might not even serve society’s interest in marking
disapproval of the offending conduct nor may it always adequately serve to
deter other would-be offenders. We hasten to clarify that this does not entail
the conclusion that the civil court is revisiting a matter already decided by the
121
criminal court nor does it suggest that the civil court is sitting in judgment
over the adequacy of the sanction meted out by the criminal court (which is
sometimes cited as a reason for an absolute bar: see the decision of the
majority in Gray at [46]). This is merely a recognition that civil punishment
has purposes which are distinct from those of criminal punishment. An
analogy can be drawn with disciplinary proceedings under the Legal
Profession Act (Cap 161, 2009 Rev Ed), where professional sanctions are
often meted out on top of any criminal sanctions which the defendant might
face (see, generally, the Singapore High Court decision of Law Society of
Singapore v Tham Yu Xian Rick [1999] 3 SLR(R) 68 at [18]).
185 Second, and closely related to the first reason, is what we shall term
the “supplementary function” of punitive damages. As we explained above at
[172], without punitive damages there would exist many unfilled “gaps” in the
law. These gaps may exist for a variety of reasons but at a basic level, they
exist because a criminal prosecution is, by design, a matter between the State
and an accused person; it is not a mechanism for victims to seek vindication of
their private interests As the Ontario Law Reform Commission pointed out,
one of the disadvantages of the criminal process is that the victims of crime
are “disenfranchised” – their role is merely that of complainant and they have
little control over the process (see Report on Exemplary Damages (1 June
1991) (Chairperson: Rosalie S Abella) at p 45). 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. Because of the “formal equality of tort law, and the relatively greater
degree of victim control that it affords”, the opportunity to bring suit against
the offenders has the potential to bring about significant symbolic and
therapeutic benefits (see Bruce Feldthusen, “The Civil Action for Sexual
122
Battery: Therapeutic Jurisprudence?” (1993) 25 Ottawa Law Review 203 at

203). In W v W, Lord Hoffmann put the point thus (at 2):
There are plainly important differences, recognised in both

judgments, between a criminal prosecution and an action for
exemplary damages. The procedure is of course radically
different and so is the standard of proof. A prosecution is
generally speaking initiated and controlled by the state. A civil
action is initiated and controlled by the victim. Thus the
prosecution of an action for exemplary damages enables the
victim publicly to vindicate his or her version of events and
inflict punishment, even revenge, in ways which a criminal
prosecution may not satisfy. Punishment takes the form of
damages which go to the victim rather than imprisonment or a
fine which can afford her only a more indirect satisfaction.
Allowing the victim to pursue such a claim may have a
therapeutic value which mitigates the effects of the offence.
186 Conversely, therefore, imposing an absolute bar in law that proscribes

the award of punitive damages where the criminal law has intervened would
be tantamount to a removal of the victim’s right to seek civil redress through a
punitive award. This has been referred to as the “disenfranchisement
argument” and we accept the force of it (see Daniels at 74). In response, those
who would support an absolute bar point out that victims would still be able to
seek compensatory damages (and might even be able to obtain aggravated
damages), but this seems to us to be an inadequate answer to the
disenfranchisement argument. First, it does not answer the objection that the
victim has been deprived of a legal entitlement through no fault of his/her own
– after all, if the victim has suffered harm of a sort which would ordinarily
entitle him/her to a punitive award, then it is not at all clear why this
entitlement should be lost merely because the criminal law has entered the
picture (see Gray at 509 per Kirby J). Second, it ignores the unique functions
played by a punitive award which are not shared by a compensatory award
(see above at [172]).
123
187 In conclusion, therefore, we would put the matter as follows: 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, it
seems to us, 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.
188 Indeed, we observe that the difference between the approaches adopted
by the majority and Kirby J did not make any practical difference to the result
in Gray. The appellant in that case sustained serious personal injuries after he
was struck by a car that had been deliberately driven at him by the respondent,
who was subsequently convicted of causing grievous bodily harm and
sentenced to seven years’ imprisonment. The appellant sued the respondent
and sought punitive damages but this was unanimously refused. The majority
held that this was a case in which substantial punishment had already been
imposed on the respondent through the criminal law, so punitive damages
were, as a rule, unavailable (at [56]). Kirby J held that the lower court had not
erred in the exercise of its discretion when it concluded that punitive damages
should not be awarded because the sentence of imprisonment which had been
imposed adequately fulfilled all of the purposes for which an award of
punitive damages would otherwise have been appropriate (at [98]).
124
Punitive damages for inadvertent conduct
189 The next matter concerns the question of whether, as a matter of law, a
precondition for the award of punitive damages is that the defendant must
consciously have run the risk of harm to the plaintiff. This resolves itself into a
disagreement over whether inadvertent conduct (that is, conduct that is
performed without consciousness of the risk to the plaintiff) can ever be the
subject of an award of punitive damages. Although this concerns, for reasons
which are obvious, an issue that chiefly, if not exclusively, relates to cases in
the tort of negligence, it does not involve the reintroduction of a “cause of
action” requirement as such. Rather, it is an issue that relates to the
defendant’s state of mind (for this reason, we shall term this the “state of mind
requirement”). Proponents who support the introduction of a “state of mind
requirement” hold that inadvertent conduct cannot be the subject of an award
of punitive damages. They argue that, unlike the categories test or the cause of
action test, their position is perfectly consistent with the principle underlying
the punitive damages jurisdiction of the court. On the other hand, detractors
who argue that there should not be any such requirement would say that
inadvertent conduct can be the subject of a punitive award. They argue that the
introduction of a “state of mind requirement” would have the effect of
fettering the jurisdiction of the court in a manner that is neither necessary nor
beneficial.
(1) Bottrill and Couch
190 This issue was argued before us as a contest between two cases of the
very highest authority. The first is A v Bottrill [2003] 1 AC 449 (“Bottrill”), a
decision of the Privy Council where the Board held, overruling the decision of
the New Zealand Court of Appeal by a 3-2 majority, that no “state of mind
requirement” should be introduced. The second is Couch v Attorney-General
125
(No 2) [2010] 3 NZLR 149 (“Couch”), a decision of the New Zealand

Supreme Court where the court decided, by a majority of 4-1, to depart from
Bottrill and to reinstate the “state of mind requirement”. The arguments are
finely balanced, and we will examine both cases in some detail.
191 In Bottrill, the defendant was a pathologist who misread and

misreported the results of cervical smears taken from the plaintiff and failed to
detect that she had high grade intraepithelial lesions, which are a precursor to
aggressive cervical cancer. The plaintiff subsequently developed invasive
cervical cancer which required aggressive treatment and she received a poor
prognosis. If the smears had been correctly reported, the treatment would have
been less severe and her prognosis much better. The plaintiff brought suit and
claimed punitive damages but this was dismissed on the ground that the facts
did not support the conclusion that, on the facts, the defendant, though plainly
negligent, acted in a manner which evinced an outrageous and flagrant
disregard for her safety. Subsequently, an investigation was carried out and it
was revealed that the defendant had also been alarmingly negligent in respect
of the treatment of other persons and that his false reporting rate exceeded
50%. On this basis, the plaintiff applied for a re-trial. Her application was
allowed at first instance, but this was reversed by the New Zealand Court of
Appeal. By a majority, the New Zealand Court of Appeal held that punitive
damages were only available in cases where a defendant had been subjectively
aware of the risk which his conduct posed. Their decision was, in turn,
reversed by the Privy Council, which held that no such requirement was
necessary.
192 The judgment of the majority (comprising Lord Nicholls, Lord Hope,
and Lord Rodger of Earlsferry) was delivered by Lord Nicholls. As a starting
point, he located the source of the court’s jurisdiction to award punitive
126
damages in the need to punish, deter, and mark society’s approval of

outrageous conduct (at [21]). That being the case, the scope of the court’s
jurisdiction should – as Lord Nicholls reasoned – extend to all cases which
satisfied this criterion. He accepted that in the usual course of things, only
cases involving intentional wrongdoing or, at the very least, a “reckless
indifference” approaching intentional wrongdoing would be required (at [23]),
but he held that there was no reason in principle to make this a precondition
for the award of punitive damages since there could be “exceptional” cases of
inadvertent conduct (at [64]) that might satisfy the criterion of outrageousness.
In a paragraph which has since famously come to be referred to as the “never
say never” passage, he made the case for leaving the door ajar (at [26]):
However, if experience in the law teaches anything, it is that

sooner or later the unexpected and exceptional event is bound
to occur. It would be imprudent to assume that, in the absence
of intentional wrongdoing or conscious recklessness, a
defendant's negligent conduct will never give rise to a
justifiable feeling of outrage calling for an award of exemplary
damages. “Never say never” is a sound judicial
admonition. There may be the rare case where the defendant
departed so far and so flagrantly from the dictates of ordinary
or professional precepts of prudence, or standards of care,
that his conduct satisfies this test even though he was not
consciously reckless. [emphasis in original omitted; emphasis
added in italics and bold italics]
193 Lord Nicholls accepted that, in cases involving egregiously negligent

conduct, the courts would often make an evidential finding that the defendant
had been subjectively reckless. The example which he gave was the decision
of the High Court of New Zealand in McLaren Transport v Somerville [1996]
3 NZLR 424, where the defendant negligently inflated a tyre to twice its
recommended pressure, upon which it exploded and caused serious injuries to
the plaintiff. However, he held that the availability of punitive damages should
not depend on whether the judge was “able conscientiously to find that the
defendant was subjectively reckless” (at [37]). Drawing a distinction between
127
advertent and inadvertent conduct, he said, would only have the effect of
“distract[ing] courts from making a decision in accordance with the
fundamental rationale of exemplary damages”, which was whether the
defendant’s conduct was outrageous (at [37]).
194 The minority, comprising Lord Hutton and Lord Millett, differed from
the majority on the purpose of punitive damages. They held that the rationale
behind the award of punitive damages was “not to mark the court’s
disapproval of outrageous conduct by the defendant … [but to] punish the
defendant for his outrageous behaviour” (at [77]). On this basis alone, they
considered that it would be inappropriate to visit punishment upon a defendant
who did not possess the requisite “guilty mind” and they supported the
introduction of the state of mind requirement (at [77]). Notwithstanding this,
they joined the majority in ordering a re-trial because they held that the facts
were such that there was a triable issue as to whether the defendant might have
been subjectively reckless, and not just scandalously incompetent.
195 Couch was decided after the Supreme Court Act 2003 (No 53 of 2003)
(NZ) had been passed to abolish appeals to the Privy Council and to establish
a new Supreme Court for New Zealand which would take the place of the
Privy Council as the apex court in the New Zealand judicial hierarchy. The
plaintiff in that case was the victim of a serious attack committed by a parolee
who had been inadequately supervised. She brought suit against the Attorney-
General as the representative of the Government and sought an award of
punitive damages. The appeal concerned a number of issues, but the only one
which concerns us at this moment is the fact that the Supreme Court of New
Zealand decided to depart from Bottrill and held that punitive damages were
not to be awarded unless the defendant had a conscious appreciation for the
risk of causing harm and had run that known risk.
128
196 Of the judges in the majority, Tipping J delivered the most fully
reasoned speech. He began, as the law lords did in Botrill, by examining the
purpose of an award of punitive damages, which he identified as the
punishment of the defendant (at [92]–[95]). While he acknowledged that such
an award might serve several other subsidiary purposes (eg, deterrence,
condemnation, and the appeasement of the victim), he held that all of these
were ultimately ancillary (at [115]). They were, in his words, “best regarded as
the consequences of a punitive award rather than as purposes of the award in
their own right” (at [95]). On this footing he held, following the minority in
Bottrill, that punishment should not be meted out to those who did not
consciously appreciate the risk that was being run and therefore could take
steps to avert punishment (at [111]–[112]). On this analysis, the introduction
of the state of mind requirement was consistent with, rather than contrary to,
the rationale for the award of punitive damages (at [124]). Tipping J also took
issue with the use of “outrageousness” as the sole criterion for the award of
punitive damages, holding that it was a concept which was inherently
subjective and ought to be coupled with a requirement of consciousness of risk
(at [151]).
197 In their own way, the rest of the judges in the majority pursued similar
lines of reasoning. Blanchard J emphasised the point that because the purpose
of punitive damages was to punish the defendant, the focus should be “on the
character of the defendant’s conduct, not on the loss or suffering of the
plaintiff”; and emphasised that the subject of punishment was “the private
wrong committed against the plaintiff, not a public wrong against the State”
(at [58]). In a similar vein, Wilson J held that because the purpose of punitive
damages was the punishment of the defendant, the focus should be “on the
mind of the defendant, in order to decide whether punishment is deserved” (at
129
[254]). McGrath J stressed that because of the focus on punishment, it was the
“culpability of the defendant’s conduct that justifies an award of [punitive]
damages”; and given that culpability was closely related to the state of mind of
the defendant, the court was justified in setting the threshold at the level of
conscious recklessness (at [239]).
198 In dissent, Elias CJ held that punitive damages had long been generally
available “irrespective of the grounds of liability in tort … wherever
compensation to the plaintiff is inadequate to respond to the outrageousness of
the defendant’s conduct” (at [19]), and that the jurisdiction to award punitive
damages was properly exercised “in vindication of a public interest otherwise
not readily able to be addressed” (at [39]). On this basis, she concluded –
echoing the words of Clement JA in Paragon Properties (see above at [166])
– that the introduction of the state of mind requirement would have the effect
of “evad[ing] the underlying principle” behind the jurisdiction of the court.
Additionally, she criticised such an approach as creating a new “species of
negligence” in which conscious recklessness was an element for the sole
purpose of either permitting or excluding an award of punitive damages, when
no such distinction or requirement had previously been recognised in the case
law (at [1] and [31]).
(2) The principle of the matter
199 The positions of both sides are powerfully argued indeed but, in our
judgment, the issue comes down to a single point of principle, which is the
true purpose of punitive damages. Both sides agree that as a matter of general
principle “the availability of exemplary damages should be co-extensive with
its rationale” (see Kuddus at [65] per Lord Nicholls), but they disagree on
what that rationale is. As is clear from the foregoing, those who support the
130
introduction of the state of mind requirement focus – almost to the exclusion

of everything else – on the punitive purpose of such an award, whereas those
who reject such a requirement consider the broader societal functions that an
award of punitive damages performs – condemnation, general deterrence, the
appeasement of the victim’s rights etc. Undergirding this difference in views is
a deeper philosophical divide between a more “liberal” approach which views
the function of the law of tort as a tool for the protection of private rights and
interests and a more “communitarian” approach which accords it a wider role
in also promoting societal welfare (see Andrew Phang and Pey-Woan Lee,
“Exemplary Damages – Two Commonwealth Cases” [2003] CLJ 32).
200 It should be sufficiently clear, from our endorsement of the

“supplementary function” of punitive damages (see above at [172]–[173]), that
we favour the broader view that punitive damages do not exist only to punish
the defendant, but can also legitimately serve wider social functions. One way
of looking at this is to distinguish between the “backwards looking” and
“forward looking” functions of punitive damages (see Bruce Feldthusen,
“Punitive Damages: Hard Choices and High Stakes” [1998] NZLJ 741 at 750).
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. The introduction of the “state of
mind requirement” would only, to use an expression favoured in the
authorities, cut back on the “vitality” of the court’s punitive damages
jurisdiction.
201 In the light of this, it is difficult not to take Lord Nicholls’s warning
131
about the limits of judicial prospicience to heart. Whilst it is true that the
outrageous nature of the conduct often takes its colour from an intentional act
on the part of the tortfeasor, and that, overwhelmingly, an award of punitive
damages will only be appropriate where the defendant’s wrongdoing was
intentional or consciously reckless, one can never foresee every factual
permutation that might arise. There may be situations where the defendant’s
conduct, though technically only negligent, was – “because of its quality or
extent, or its duration or repetitiveness, or casualness or indifference, or any
other reprehensible feature” (see Bottrill v A [2001] 3 NZLR 622 per
Thomas J, dissenting) – so beyond the pale that it is properly characterised as
outrageous. We would venture to suggest that Bottrill was such a case. Even if
it could be shown that the defendant-doctor was not conscious of the risk that
his misdiagnoses would pose to his patients, there is a good case for saying
that his betrayal of the trust reposed in him by his patients (which was
misplaced), the magnitude of the potential harm his conduct posed, and his
sustained pattern of laxity and incompetence, were collectively sufficient to
satisfy the criterion of outrageousness. In Bottrill, Lord Nicholls gave the
example of a person who deliberately points a loaded gun at another person
and, believing it to be unloaded, squeezes the trigger, causing serious injury.
In such a case of “stupidly dangerous behaviour”, there is an arguable case
that the defendant’s conduct should attract an award of punitive damages, even
if he genuinely believed his act to be harmless (at [38]).
202 As a practical matter, most cases where a punitive award is justified

would involve at least subjective recklessness, if not intentional conduct.
However, this is, in our view, quite beside the point. Courts should not have to
disguise their true reasons for imposing a punitive award by recharacterising
cases of inadvertent conduct as cases involving subjective recklessness to
132
justify a punitive award. As argued in J Manning, “‘Never say never’:

exemplary damages in negligence” (2003) 119 LQR 24, the introduction of a
requirement of subjective recklessness would lead “inevitably in very strong
cases of negligence to a temptation in the tribunal to find conscious
wrongdoing, when perhaps a lesser finding would be safer” (at 27). This
would be undesirable. If the award of punitive damages is thought to be the fit
and proper response to heinous conduct, then courts ought to ventilate their
reasons openly and transparently in order that proper consideration may be
given to the value judgment which is being made.
203 Whilst it might be attractive to have recourse to the concept of

subjective recklessness as a kind of via media, it might be extremely difficult
to draw the line between subjective recklessness on the one hand and
negligence (or even gross negligence) on the other. This might also lead to
much artificiality as courts might be tempted to reason in an ex post facto
fashion after having first decided (without the application of logic and/or
principle) whether or not the award of punitive damages is appropriate in the
first place. We also note that the concept of subjective recklessness may be
perceived as being a proxy of sorts for the concept of intention. This would
not, in our view, be a principled way forward simply because both the
aforementioned concepts are quite different and that it would, in fact, be
unprincipled to impute intention in a situation where there was none to begin
with.
204 Finally, we do not agree with criticism that the criterion of

“outrageousness” introduces an unsatisfactory element of subjectivity into the
process or that it risks confusing the functions of the civil and criminal law. In
Couch, Tipping J framed his objections in the following terms (at [111]–
[112]):
133
111 … punishment is generally meted out only to those

who have deliberately caused harm or who have deliberately
run the risk of doing so, rather than to those who have been
inadvertent, even grossly advertent. … I recognise that
Parliament has, over the years, created a number of offences
which do not require a guilty mind in the conventional sense.
But the anomalous nature of exemplary damages at common
law is such that they should be restricted to circumstances
which are analogous to the conventional offences which
require conscious appreciation of wrongdoing. At least in the
present context a conscious appreciation of the risk of causing
harm should be a necessary precondition to the infliction of
punishment. Otherwise the distinction between crime and tort
becomes even further blurred.
112 An allied point is that punishment should not be
inflicted unless the person concerned is able to determine in
advance with some certainty when their conduct is liable to
punishment. The need for conscious appreciation of risk
brings into the inquiry the state of the defendant’s mind. The
presence of the necessary state of mind, as a pre-existing
matter of fact, must be shown before punishment by way of
exemplary damages should be inflicted. A test for exemplary
damages which did not have this ingredient would depend
entirely on an after the event assessment by a judge or jury of
whether the relevant conduct should be viewed as outrageous.
That is a subjective and inherently uncertain criterion on
which minds may well differ. Assessing whether the defendant
consciously appreciated the risk inherent in the relevant
conduct involves an objective and conceptually certain inquiry
into the defendant’s state of mind which is preferable to a test
based on the adjudicator’s subjective reaction to what has
occurred.
205 Several points can be made in response to this. First, for reasons which
we have already set out above, we reject the criticism that punitive damages
should somehow be treated with suspicion because they are “anomalous” (see
above at [171]–[173]). This critique overlooks the “supplementary function”
of punitive damages. Second, there are many criminal offences in respect of
which proof of negligence is a sufficient basis for liability (see, for example,
ss 269, 284–289, 304A, 336–338(b) of the Penal Code (Cap 224, 2008 Rev
Ed)). If negligence can be a basis for the imposition of liability in the criminal
law (where foreseeability of liability is a matter of cardinal importance), we
134
think that, a fortiori, it can be the basis for the imposition of punitive damages.
Third, the use of the expression “outrageous” does not entail that the
imposition of a punitive award is contingent on public distaste or any sort of
emotional response. Rather, it sets out a reasoned normative standard that
requires the court to consider whether the defendant’s conduct is so
reprehensible that a normal compensatory award is insufficient and something
more is required. This involves an exercise of reasoned judgment of the sort
that courts perform on a regular basis. Further, there is no reason to think that
the process of determining whether the defendant was subjectively reckless
would be any less certain. As we observed above at [202], drawing a
distinction between advertent and inadvertent conduct in this context only
risks obscuring the value judgment which lies at the heart of the inquiry.
206 The direction the law has taken in New Zealand can perhaps be
explained by the presence of accident compensation legislation. Under the
provisions of the Injury Prevention, Rehabilitation, and Compensation Act
2001 (NZ) (“the NZ Compensation Act”) and its legislative precursors, the
victim of an accident can make a claim for statutory compensation without
proof of fault. However, s 317(1) of the NZ Compensation Act provides that
all proceedings for damages “arising directly or indirectly out of” personal
injury are barred. In Donselaar v Donselaar [1982] 1 NZLR 97, the New
Zealand Court of Appeal held that this did not bar a claim brought purely for
punitive damages, subject only to the caveat that punitive damages could not
be used to make up for any perceived shortfall in the statutory sum (at 107).
Against this background, it is understandable that the New Zealand courts
would be careful not to expand the ambit of punitive damages too widely, lest
it subvert the social and economic objects of the NZ Compensation Act (see,
generally, Stephen Todd, “A New Zealand Perspective on Exemplary
135
Damages” (2004) 33 Comm L World Rev 255 at 259). However, such a

concern does not arise here, as we do not have a similar piece of legislation in
Singapore. In our judgment, therefore, 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.
Can punitive damages be awarded here?
207 It is perhaps somewhat ironic that this particular issue (in relation to
whether or not punitive damages ought to be awarded) was the only issue
which all parties were actually in agreement on. Put simply, all the parties
were of the view that, this being a case pertaining to purely negligent conduct
on the part of the Respondents, there was no scope for the award of punitive
damages. For the reasons we have given, we do not think this is an absolute
barrier to such an award. We also do not think the fact that the first
Respondent has been charged for breaching the conditions of its licence to
provide assisted reproduction services is a bar to such an award. In our
judgment, the substance of the charge against the first Respondent is quite
different and does not present itself as an obstacle to the making of a punitive
award. The offence for which the first Respondent was charged was that of
breaching the conditions of its licence by failing to “ensure that suitable
practices were used in carrying out [assisted reproduction] activities” (see
above at [9]). Thus framed, the charge would appear to be a simple regulatory
offence, and does not adequately capture the types of harm which were caused
to the Appellant.
208 That being said, we do not think that we are presently able to conclude
that this is a proper case for a punitive award. The facts are simply too scant to
136
support a finding of outrageous conduct. The allegation in the SOC is that the
mix-up had taken place because more than one sample had been handled in the
laminar hood at the same time and because the disposable pipettes had not
been discarded promptly after each use (see above at [9]). However, even
accepting both of these allegations to be true, we are not satisfied that such
conduct crosses the requisite threshold. Bottrill is instructive in this regard.
When the matter first came before the High Court of New Zealand, the trial
judge had no trouble concluding that the defendant had been guilty of
professional negligence, but he was not prepared to say – just by looking at the
plaintiff’s case in isolation – that the defendant’s conduct had crossed the
threshold of outrageousness. This only changed after the results of the State-
ordered inquiry revealed an alarming rate of false positives and a persistent
pattern of incompetent performance on the part of the defendant. Likewise, we
cannot conclude – from this single instance of negligence alone – that the
Respondents’ conduct was of such a character as to be considered outrageous.
209 However, we clarify that 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 (see the decision of this court in ACES System
Development Pte Ltd v Yenty Lily (trading as Access International Services)
[2013] 4 SLR 1317 at [58]). This flows naturally from the fact that punitive
and compensatory damages serve different purposes.
Conclusion
210 This has been a difficult case, possibly one of the most difficult to
come before this court thus far. However, not once have we wavered in our
conviction as to the truth of the following principle, which has already been
137
emphasised right at the outset of this judgment: 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. The question in this
appeal was the proper legal response to what is, by any account, a tragic set of
facts. In summary, we dismiss the appeal in so far as the issue of upkeep costs
is concerned. However, we recognise the Appellant’s right to claim, as general
damages, a sum in recompense of the injury which she has suffered to her
interest in “genetic affinity”. The quantum of this award should be assessed in
accordance with the principles we have set out above at [145]–[152]. Finally,
while we recognise that a claim for punitive damages may in principle be
mounted in respect of claims in negligence, such an award is not available in
this case.
211 On the issue of costs, we direct that that parties are to file written
submissions, which should be limited to 5 pages and are to be submitted
within two weeks of the date of this Judgment, as to the appropriate costs
orders to be made both here and below.
212 Finally, we would like to record our deep appreciation once again to
Prof Goh for the invaluable assistance he provided us – notwithstanding the
fact that we did not ultimately agree with all of his submissions. His masterly
integration of theory and practice exemplifies all that excellent legal
scholarship should be. We also commend Prof Goh for his excellent advocacy.
Indeed, this is not the first time that Prof Goh has been commended in the
highest terms for his assistance as amicus curiae (see, for example, the
Singapore High Court decision of Ang Jeanette v Public Prosecutor [2011]
138
4 SLR 1 at [76] and the decision of this court in Re Nalpon Zero Geraldo
Mario [2013] 3 SLR 258 at [72] (where it was observed that “both
[Prof Goh’s] written and oral submissions were models of clarity and
conciseness”)).
Sundaresh Menon Chao Hick Tin Andrew Phang Boon Leong

Chief Justice Judge of Appeal Judge of Appeal
Tay Yong Kwang Steven Chong

Judge of Appeal Judge
N Sreenivasan SC, Palaniappan S, Derek Ow (Straits Law

Practice LLC) for the appellant;
Lok Vi Ming SC, Audrey Chiang, Calvin Lim, Evans Ng, Nerissa
Tan and Carren Thung (Dentons Rodyk & Davidson LLP) for the
respondents;
Assoc Prof Goh Yihan (School of Law, Singapore Management
University) as amicus curiae.
139

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IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

Civil Appeal No 17 of 2015

(1) THOMSON MEDICAL PTE LTD

In the matter of Suit No 467 of 2012

(1) THOMSON MEDICAL PTE LTD

[Tort] — [Negligence] — [Damages]

[Tort] — [Negligence] — [Damages]

[Damages] — [Punitive damages]

THE DECISION BELOW ............................................................................11

THE STRUCTURE OF THIS JUDGMENT...............................................13

TWO PRELIMINARY OBJECTIONS .......................................................14

SUMMARY OF OUR CONCLUSIONS......................................................17

THE UPKEEP CLAIM .................................................................................17

The conceptual objection .........................................................................77

THE ISSUE OF PUNITIVE DAMAGES ..................................................100

Court of Appeal — Civil Appeal No 17 of 2015

22 March 2017 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

The decision below [14]–[16]

The structure of this judgment [17]–[18]

Two preliminary objections [19]–[23]

Summary of our conclusions [24]

The upkeep claim [25]–[105]

The landscape of reproductive wrongs [27]–[43]

Three categories of reproductive wrongs: [28]–[31]

Wrongful fertilisation [32]–[34]

“The [Appellant] wanted a second child all [35]–[43]

The concept of actionable damage [44]–[54]

Actionable damage in the tort of negligence [47]–[51]

Actionable damage in an action for breach of [52]–[54]

The foreign authorities [55]–[85]

(1) McFarlane: healthy parents and healthy [61]–[67]

(2) Parkinson: healthy parents and disabled [68]–[70]

(3) Rees: disabled mother and healthy child [71]–[73]

Some interim conclusions on the foreign [81]–[85]

The obligations of parenthood [87]–[94]

Inconsistency with the nature of the parent-child [95]–[100]

Conclusion on upkeep costs [101]–[105]

Loss of autonomy [106]–[152]

The development of an award for loss of autonomy [109]–[114]

Arguments against the recognition of loss of [115]–[124]

The conceptual objection [116]–[119]

The coherence objection [120]–[122]

The over-inclusiveness objection [123]–[124]

The “real loss”: genetic affinity [125]–[136]

Quantification of damages [137]–[152]

The “conventional award” in Rees [139]–[142]

Award for necessary expenses to avoid or cope [143]–[144]

Conventional sum for non-pecuniary loss [145]–[152]

The issue of punitive damages [153]–[209]

The decision in Rookes [155]–[175]

The position in the UK [157]–[161]

The position in the Commonwealth [162]–[169]

The position in Singapore [170]–[175]

Developing a coherent framework [176]–[206]

The relevance of criminal punishment [178]–[188]

Punitive damages for inadvertent conduct [189]–[206]

(1) Bottrill and Couch [190]–[198]

(2) The principle of the matter [199]–[206]