Property Interests in Body Parts: Yearworth v North Bristol NHS Trust
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| Author | Cynthia Hawes |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00787.x |
would undoubtedly be correct if the original insurer made a claim for an ex gratia
payment ora claim that was not covered by the reinsurance policy byreason of an
expressreinsurance exclusion whichdid not appear in the direct policy. But in this
case the contracts had identical wordings and the insurer paid by reference to the
interpretation by a court of competent jurisdiction of the original policy term
which was reproduced in the reinsurance policy. The insurer did not claim for an
ex gratia payment, but made a claim under the original policy which the reinsurer
agreed to coverand which was alsoincorporated by the words ‘as original’.
Their Lordships implicitly recognised that their ruling was uncommercial. They
went to greatle ngthsto explain how the problems created bytheir decis ioncould be
avoided, eg by making bothco ntracts subject to the same applicable lawor by fram-
ing the reinsurance as a liability cover. For the future these solutions may be e¡ective,
but for contracts written before the ruling in Wa s a the market will continue to be
faced with great uncertaintyas to exactly what the reinsurance covers.
Property Interests in Body Parts:Yearworth vNorth Bristol
NHSTrust
Cynthia Hawes
n
This note analysesYe a r w o r t h vNorthBristolNHSTrust,i n which the Court of Appeal accepted the
existence of property interests in parts or productsof the human body and considered the applic-
ability of chattel torts where interference with such interests occurs.The writer questions whether
the Court’s decis ionto extend the law of bailment in the case was necessary, or whether the law of
conversion or negligence should be availableas the more appropriate causes of action.
It is a well-established common law rule that no one owns or has the right to
possess the living body of another person.
1
Not onlydoes the common law refuse
to recognise property rights in human beings, but the assumption of such rights
by, for example, detaining or tra⁄cking in other persons, is generally punishable
by the criminal law, as being kidnapping or slavery.
2
Nor, indeed, does a person
own or possess his own body, or any part of it.
3
n
Associate Professorof Law,University of Canterbury, New Zealand.
1 Some living human bei ngs couldo ncebe considered chattels and thus could be taken by recaption:
see C. Branston,‘The Forcible Recaption of Chattels’ (1912) 28 LQR 262, 267.
3 A person’s limbs are his body, and they may not be the subject of property rights: RvBentham
[2005] 1 WLR 1057.The i ssue of whether body parts should be saleable is reviewed by A. George,
‘Marketing Humanity ^ ShouldWe Allow the Sale of Human Body Parts?’ (2005) 7 UTS Law
Review11.
Property Interests in Body Parts
130 r2010 The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(1) 119^140
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