Yearworth and Others v North Bristol NHS Trust
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 2009 |
| Neutral Citation | [2009] EWCA Civ 37 |
| Date | 04 February 2009 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Judge, Lord Chief Justice, Sir Anthony Clarke. Master of the Rolls and Lord Justice Wilson
A sample of sperm from a person undergoing chemotherapy, which a hospital stored in case he became infertile after the treatment, was that person's property and its loss or damage was capable of establishing a claim in negligence.
Further, where the hospital's storage was undertaken gratuitously in the sense that it was a bailee of the sperm, any breach of duty in its safe storage causing loss or damage entitled the owner to recover damages in bailment for psychiatric injury and/or mental distress.
The Court of Appeal so held in a reserved judgment when it allowed the appeal of the claimants, Jonathan Yearworth, James Denslow, Martin Lee, Paul Ritchie, Julie Smith, as executrix of Jeremy Michael Smith, and Christopher Waddleton, against the judgment of Judge Griggs in Exeter County Court on M arch 12, 2008, when he held, inter alia, on preliminary issues that the claimants' sperm samples were not owned by them, and that they were not entitled to damages for loss of or damage to the samples or in respect of psychiatric injury. The Court of Appeal remitted the case to the county court for determination of further factual matters.
Mr James Townsend for the claimants; Mr Nicolas Stallworthy for North Bristol NHS Trust.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that, after the claimants were diagnosed with cancer, they took the advice of doctors at Southmead Hospital, Bristol, where they were due to receive chemotherapy, to produce samples of sperm for storage in liquid nitrogen at the hospital in the event the treatment made them infertile.
Between June 28 and 29, 2003, the liquid nitrogen fell below the requisite level, the semen thawed and, on the facts as assumed, the sperm perished.
The claimants brought claims in negligence. The trust, while admitting it had a duty to take reasonable care of the sperm, and that it breached that duty when the operation of its storage facility failed, denied liability.
His Lordship said that the judge rightly held that 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 it was removed for storage purposes, constituted a bodily or p ersonal...
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Table of Cases
...All ER (D) 245 (Nov) 67 X v Germany (1981), Application No 8741/79, 24 DR 137, ECommHR 145–146 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, [2009] 3 WLR 118, [2009] 2 All ER 986 139 Yeoman’s Row Management Ltd and Anor v Cobbe [2008] UKHL 55, [2008] 1 WLR 1752, [2008......
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Table of Cases
...19, 62 Yaxley v Gotts, [1999] EWCA Civ 3006, [2000] Ch 162 ................................... 227 Yearworth v North Bristol NHS Trust, [2009] EWCA Civ 37, [2010] QB 1 ........ 12 Yorkshire Railway Wagon Co v Maclure (1882), 21 Ch D 309 (CA) ..................111 Young v Hichens (1844), 6 Q......
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Table of cases
...v Zhu, 2013 BCCA 352 .........................................................................348 Yearworth v North Bristol NHS Trust, [2009] 2 All ER 986 (CA)....................... 69 Yepremian v Scarborough General Hospital (1980), 28 OR (2d) 494, [1980] OJ No 3592 (CA) .......................