#1762 - Yearworth V North Bristol Nhs Trust - Medical Law

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37

Court of Appeal

Facts

C, who were all diagnosed with cancer, were advised to freeze some of their sperm. They did this, storing it in the Hospital’s fertility unit. The hospital promised to take all reasonable care to ensure the sperm could still be used in five to ten years time. However, before the samples could be used, they thawed out and perished.

Issue

Body parts

Held Lord Judge CJ

• Claim for personal injury

  • It was claimed that had sperm been inside the men and the sperm injured while in the testes by, e.g. radiation, this would have constituted personal injury

    • And the men’s ejaculation of it should therefore make no difference – unlike hair clippings, the sperm were ejaculated with a view to their being kept.

  • Damage to, and consequential loss of, the sperm did not constitute “personal injury”.

    • it would be a fiction to hold that damage to a substance generated by a person's body, inflicted after its removal for storage purposes, constituted a bodily or “personal” injury to him

      • We must deal in realities.

• Damage to property

  • The judge accepted that the effect of the HTAct was to eliminate any rights of ownership of the sperm otherwise vested in the men for the purposes of an action in negligence.

    • However, this would be a curious consequence of an Act designed to give legal effect to principles of good practice in modern reproductive medicine

      • that it should deprive the men of what would otherwise be their ability to recover damages for an admitted breach of the trust's duty of care in respect of their sperm.

  • In this jurisdiction developments in medical science now require a re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise

    • The easiest course would be to say the sperm were property via Doodleward –

      • the unit's storage of the sperm in liquid nitrogen was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability

        • However, Doodeward was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse.

        • A distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical.

          • Why, for example, should the surgeon presented with a part of the body, e.g. a finger he is to try an reattatch to a hand

            • but who carelessly damages it before starting the necessary medical procedures,

              • be able to escape liability as the body part had not been subject to the exercise of work or skill which had changed its attributes?

  • So instead, rest on a broader basis

    • In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated.

      • (i) By their bodies, they alone generated and ejaculated the sperm.

      • (ii) The sole object of their ejaculation of the sperm was that, in certain events, it might later be used for their benefit.

        • While the men could not “direct” the use of their sperm owing to the HTAct interposing medical judgement, this does not matter.

          • First, there are numerous statutes which limit a person's ability to use his property—for example a landowner's ability to build on his land or to evict his tenant at the end of the tenancy or a pharmacist's ability to sell his medicines—without eliminating his ownership of it.

          • Secondly, by its provisions for consent, the Act assiduously preserves the ability of the men to direct that the sperm be not used in a certain way: their negative control over its use remains absolute.

      • (iii) The Act recognises in the men a fundamental feature of ownership, namely that at any time they can require the destruction of the sperm.

      • (iv) The analysis of rights relating to use and storage in (ii) and (iii) above must be considered in context, namely that, while the licence-holder has duties which may conflict with the wishes of the men, for example in relation to destruction of the sperm upon expiry of the maximum storage period, no person, whether human or corporate, other than each man has any rights in relation to the sperm which he has produced.

      • (v) In reaching our conclusion that the men had ownership of the sperm for the purposes of their present claims, we are fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the trust's breach of duty, namely preclusion of its future use

• Bailment

  • Some basic...