Yearworth and Others v North Bristol NHS Trust

JurisdictionEngland & Wales
Judgment Date04 February 2009
Neutral Citation[2009] EWCA Civ 37
Date04 February 2009
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Judge, Lord Chief Justice, Sir Anthony Clarke. Master of the Rolls and Lord Justice Wilson

Yearworth and Others
and
North Bristol NHS Trust
Supplier of sperm sample has property interest in it

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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15 cases
  • AB & Others v Ministry of Defence (No 2)
    • United Kingdom
    • Queen's Bench Division
    • 5 June 2009
    ...in relation to the unique features underlying the claims in this case. 465 In Jonathan Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37, in a court presided over by Lord Judge CJ and comprising Sir Anthony Clarke MR and Wilson LJ, the Court of Appeal said that the case inv......
  • Kimathi and Others v The Foreign and Commonwealth Office
    • United Kingdom
    • Queen's Bench Division
    • 24 May 2018
    ...18. 9 See (1) – (2) below. 10 See (3) below. 11 Walkin v South Manchester Health Authority [1995] 4 All E.R. 132 at 139j. 12 Yearworth v North Bristol NHS Trust [2010] Q.B. 1 at para 23. The “not merely mental distress but a psychiatric injury, namely a mild or moderate depressive disorde......
  • Richard Holdich V. Lothian Health Board
    • United Kingdom
    • Court of Session
    • 19 December 2013
    ...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, Vernic......
  • Natixis S.A. v Marex Financial
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 2 October 2019
    ...of bailment (as to the nature of a claim in bailment see East West Corpn v DKBS AF 1912 A/S [2003] QB 1509 at [24]–[32] and Yearworth v North Bristol NHS Trust [2010] QB 1 at [48]). Liability in bailment has been said to be sui generis and is separate from any liability in tort (and the m......
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2 firm's commentaries
  • Is human tissue 'property'? Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478
    • Australia
    • Mondaq Australia
    • 7 June 2011
    ...Justice Hulme was assisted by the Court of Appeal of England and Wales' decision in Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37 which held that sperm samples can be categorised as property. In Yearworth, six men were diagnosed with cancer and, prior to undergoing treat......
  • Genetic Material As Property: Rethinking The Common Law View
    • Canada
    • Mondaq Canada
    • 13 June 2012
    ...rethinking. One of the recent cases reviewed by the court was the U.K. case of Jonathan Yearworth & Ors v. North Bristol NHS Trust, [2009] EWCA Civ 37. In this case, six men who had stored sperm samples sued when the liquid nitrogen in the tanks used to store the samples fell below the ......
27 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
    ...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......
  • Burial Disputes
    • United Kingdom
    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
    ...v Superior Court of LA County (1993) 20 Cal Rptr 2d 275) in Lord Judge LCJ’s judgment in Yearworth and Others v North Bristol NHS Trust [2009] EWCA Civ 37 under the heading ‘Parts or products of a living human body’ at [37]–[45]. It is therefore capable of being bequeathed or considered to ......
  • Table of cases
    • Canada
    • Irwin Books The Law of Torts. Sixth Edition
    • 25 June 2020
    ...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) .......................
  • Table of cases
    • Canada
    • Irwin Books Archive The Law of Torts. Fifth Edition
    • 30 August 2015
    ...Zhu, 2013 BCCA 352 ........................................................................ 344 Yearworth v. North Bristol NHS Trust, [2009] 2 All E.R. 986 (C.A.) .................. 69 Yepremian v. Scarborough General Hospital (1980), 28 O.R. (2d) 494, [1980] O.J. No. 3592 (C.A.) ................
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