Richard Holdich V. Lothian Health Board
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2013] CSOH 197 |
| Court | Court of Session |
| Published date | 19 December 2013 |
| Date | 19 December 2013 |
| Docket Number | A28/05 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 197 | |
| A28/05 | OPINION OF LORD STEWART in the cause RICHARD HOLDICH Pursuer; against LOTHIAN HEALTH BOARD Defenders: ________________ |
Pursuer: O'Brien QC, Love; Balfour & Manson (for Foot Anstey Sargent Solicitors, Exeter)
Defenders: Stephenson QC, D Ross; NHS Scotland Central Legal Office
19 December 2013
[1] This is a case about the failure of one of the storage vessels in a sperm bank, otherwise "a cryogenic storage facility". The facility was apparently owned and managed by the defenders. I say "apparently" because this is not actually spelled out in the written pleadings. The defenders are a statutory provider of health services. In 1992 the pursuer, then aged 22, deposited three sperm samples in the defenders' facility. He did this before having treatment for testicular cancer which, he was advised, would, and which in fact did, make him infertile. He deposited his sperm to preserve his chances of becoming a father. The pursuer later married. In August 2001 the pursuer requested his stored sperm so that he and his wife could try and have children by in vitro fertilisation [IVF]. He was then told that there had been a malfunction.
[2] The malfunction involved a leak of the cooling medium, liquid nitrogen. Because of the leak the temperature of the storage vessel rose for a period from minus 190o C to minus 53o C. All of the pursuer's sperm was stored in the affected vessel. The initial advice to the pursuer was that his samples could have been damaged and should not be used. The apprehended damage reduces the chances of conception and increases the risk of chromosomal abnormalities, miscarriage and birth defects. After a period of discussion, during which conflicting advice was offered, the pursuer decided not to proceed with IVF using his sperm samples. He avers that his decision was a reasonable one. The samples remain in cryostorage. The pursuer claims compensation from the defenders for distress, depression and loss of the chance of fatherhood, all on the basis that damage to his sperm samples was caused by the defenders' negligence. The loss of the chance of fatherhood is characterised as "loss of autonomy".
[3] The case comes to me on the procedure roll for a debate on the defenders' preliminary plea, the question being whether, as the defenders submit, the pursuer's pleadings demonstrably fail to disclose a cause of action relevant in law, or which could be relevant, for recovery of damages for distress, depression and loss of autonomy. For present purposes I have to take the pursuer's averments pro veritate. The defenders argue that even if all the facts averred by the pursuer are proved he has failed to state a relevant case for compensation under the heads claimed: the law does not compensate for mental injury, in this case distress and depression, in the situation postulated by the pursuer; the law does not generally compensate for "mere distress"; and the law does not recognise "loss of autonomy" as a compensable head of claim. These are, it is said, questions of "pure" law which can be decided on the pleadings without proof of the facts. Parties agree that the Jamieson test applies, the question being whether the action will necessarily fail, the onus being on the defenders who seek dismissal at this stage [Jamieson v Jamieson 1952 SC (HL) 44 at 50 per Lord Normand].
[4] The pursuer's case is presented primarily as a claim for mental injury consequential on property damage in breach of contract et separatim, secondarily, as a claim for "pure" mental injury in delict, that is on the basis of fault at common law, et separatim, if somewhat faintly, as a novel type of claim for damage to sperm, neither person nor property but something sui generis, with consequential mental injury, again on the basis of common law fault. The main issues include the following: is the pursuer's mental injury consequent on bodily injury, is it "pure" mental injury or is it mental injury consequent on damage to sperm characterised as moveable property or something else sui generis; does damage to the sperm samples constitute personal injury, is it damage to the pursuer's moveable property or is it something else; did the act of handing over the samples for storage effect a gratuitous contract of deposit for safekeeping, depositum, of the pursuer's moveable property between the pursuer and the defenders; is the question of the defenders' liability for the pursuer's mental injury to be decided by contractual rules or by delictual rules? These are not just categorisation controversies: how these issues are decided could make the difference, I am told, between recovery of damages and non-recovery.
[5] I heard legal argument on these issues over eight days ending on 17 May 2013 and made avizandum. I have now decided to reserve the defenders' preliminary plea and to allow parties a proof of their respective averments before answering the questions of law. I take the view that the claim in delict for "pure" mental injury caused by negligent out‑of‑body damage to sperm is apt for proof and certainly cannot be rejected out of hand. If the delictual case is to go to proof I think the property-contract case should be remitted for probation too. Though I am not necessarily convinced that the property-contract case as currently presented is sound in law, equally I am not convinced that, if differently presented, it is bound to fail and, anyway, no additional evidence will be required. A separate reason for allowing proof on all matters is that the case raises questions of novelty and importance in a developing area of law which demand to be answered after all the facts are known. I am well aware that lots of books, book chapters and journal articles have been written about the issues touched on in this opinion. Academics may be irritated by the opinion's apparently narrow knowledge base and by my failure to address the philosophical, ethical and policy considerations: but court judgments are about particular disputes and have to be based on the arguments and material presented. There are time constraints and funding constraints. In the present case counsel on both sides have to be complimented on the assistance they have given within these constraints.
Personal injury claims for damage to gametes
[6] The authorities to which counsel refer plainly show that the law has no difficulty compensating mental injury and losses consequent thereon where the mental injury is itself a consequence of or associated with negligently caused bodily injury, even though the bodily component may be trivial. However, both sides agree, rightly or wrongly, that the law as it stands is antagonistic to the idea that damage to stored sperm can constitute bodily injury. I say "rightly or wrongly" because no court in Scotland has actually ruled on the question; and it is not obvious to me that a Scottish court would necessarily negative the proposition. Would it be unreasonable to extend the concept of injury to damage to viable bio‑matter produced or removed for the purpose of the living subject's own reproduction or medical treatment? Clearly there is such a thing as out‑of‑body treatment, for example high‑dose radiation of cancerous organs removed to protect surrounding tissue. Thinking of autologous grafts, transplants and transfusions, would it be far‑fetched to deal with viable bio‑matter outside the body as part of the subject's person? Would it do violence to the law? Would it run counter to current norms of medical practice? Would it be inconsistent with the regulatory regimes? Would it offend morality?
[7] This class of bio‑matter includes ovarian tissue intended for re‑implantation to facilitate conception in vivo. Would it then be unreasonable to treat gametes, male or female, intended for in vitro fertilisation as part of the subject's body, or possibly bodies in the case of unimplanted embryos? In Yearworth the Court of Appeal noticed the German law theory of the "functional unity" [eine funktionale einheit] of stored gametes with the living body. The theory is a plausible one to my mind [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 21 per Lord Judge CJ giving the judgment of the court; BGHZ 124, 52 (VI ZR 62/93), 09.11.1993 (key words, Schmerzensgeldanspruch, Vernichtung, Spermakonserve), English translation in the web site of The University of Texas School of Law, http://www.utexas.edu/law, Institute of Transnational Law, foreign law translations University of Oxford, Institute of European and Comparative Law and Professor B S Markesinis].
[8] The Court of Appeal also stated: "Ancillary to the object of the later possible use of the sperm is the need for its storage in the interim." As a matter of statutory interpretation, effective cryostorage of semen is arguably a practice "designed to secure that embryos are in a suitable condition to be placed in a woman" and, on that view, cryostorage is a practice authorised in the course of providing treatment services under the Human Fertilisation and Embryology Act 1990 ["the 1990 Act"]. Thus it can be said that the 1990 Act envisages the keeping of gametes for the subject's own reproduction as being, if not treatment in itself, an activity which is ancillary to the provision of treatment services; the statutory consenting regime follows the therapeutic model; and there is a subtle indication that the legislature thinks of out‑of‑body harm to gametes as injury giving rise, potentially, to tortious liability rather than as property damage for which a contractual or contractual‑type remedy might be available [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 45(f) per Lord Judge CJ giving the judgment of the court; Human Fertilisation and Embryology Act 1990 s. 2, sched 1 para 1 and sched 3; Human Fertilisation and Embryology Act 2008 Act s. 44, inserting new section 1A in the Congenital...
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