Yearworth v. North Bristol NHS Trust

[2009] EWCA Civ 37
Download Judgment: English

Six men appealed the decision of the Exeter County Court that denied recovery in tort for the damage of their sperm held in frozen storage at a facility run by the North Bristol NHS Trust (the “Trust”).

All six of the men were diagnosed with cancer and were advised that chemotherapy was the appropriate treatment. As the chemotherapy could result in the loss of fertility, the hospital, for which the Trust was responsible, offered that the men could produce samples of semen to be frozen and stored free of charge by the hospital for possible future use. The hospital had a fertility unit licensed under the Human Fertilisation and Embryology Act 1990 (the “Act”). The men signed three key documents, one of which stated that there was no absolute guarantee that sperm would still be usable, but that the hospital would undertake to look after the samples with “all possible care.”

Before any party had attempted to use the sperm, the liquid nitrogen tanks preserving the sperm fell below the requisite level. The automatic topping system was not operative and there was no attempt to increase the levels manually. This resulted in the thawing of the samples and the sperm was therefore no longer viable. Five men claim that the loss resulted in a psychiatric injury and the sixth claims to have suffered mental distress.

The six men joined as claimants in bringing suit against the Trust in a tort action for negligence. Four questions were submitted to the lower court: (1) whether the damage to the sperm itself constituted a personal injury to the men; (2) if so, what was the measure of damages; (3) whether the sperm was property of the men; (4) if so, what was the measure for damages and could damages for claimed psychiatric injury be included. The lower court found that the damage to the sperm was not a personal injury and that the sperm was not property owned by the men. It was therefore unnecessary to reach the question of damages.

The six men appealed the lower court decision.

The Court held that the Trust could face liability under tort and bailment actions. The Court remitted the remaining issues to the county court.

With regards to the tort claim for negligence, the Court determined that the damage to the sperm was not a personal injury because “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”. However, the Court held that the sperm was property owned by the men and they could therefore recover for damage to that property. The Trust argued that the men did not have ownership of the sperm once it was in the storage facility as use of the sperm was then governed by the requirements under the Act, which included that the Trust could only authorize use, even by the men themselves, if they considered the interests of the child to be created. The Court held, however, that there are many situations where the law impedes on a person’s ownership rights without removing the individual of that ownership. The Court also reasoned that the Act left the men with the ultimate control to prevent the future use of the sperm and to require its destruction at any point while it was in storage. As the men retained ownership of the sperm, it was their property and they could recover under tort law for damage to that property.

With regards to the bailment claim, which was new to the case on this hearing, the Court held that the storage of the sperm by the Trust was a bailment scenario and therefore the Trust was required to show reasonable care towards the sperm. The Trust breached this duty of reasonable care when it failed to manually increase the levels of liquid nitrogen in the tanks after the automatic topping system failed to do so. In a recovery for bailment, the Court noted that damages may be akin to breach of contract damages which are recoverable for psychiatric injury where the purpose of such contract was to ensure comfort, peace of mind, or other non-pecuniary personal benefits. The Court held  the arrangement between the men and the Trust was closely akin to a contract designed to give piece of mind and that the Trust might therefore be liable for psychiatric injury and mental distress under bailment law.

“45…(f)…[The Trust] can validly argue that the men cannot “direct” the use of their sperm [under the Act]. For two reasons, however, the absence of their ability to “direct” its use does not in our view derogate from their ownership. First, there are numerous statutes which limit a person’s ability to use his property – for example a land-owner’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. Second, 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.”

“49... We find as follows [with regards to bailment]: (a) The unit chose to take possession of the sperm….(b) The unit’s assumption of responsibility for the careful storage of the sperm was express and unequivocal….(c) The unit acquired exclusive possession of the sperm. (d) The unit held itself out to the men as able to deploy special skill in preserving the sperm. (e)…The Trust admits that, if the unit was a bailee of the sperm, it was in breach of the duty of care consequent upon bailment.”

“41…It would, we consider, 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.”

“57. It seems clear to us that the arrangements between the men and the Trust for the storage of their sperm were closely akin to contracts and should fall within the ambit of these principles. The reference to peace of mind admirably fits the object of arrangements designed to preserve the ability of men to become fathers notwithstanding an imminent threat to their natural fertility. The arrangements were not in any way commercial and their object was, only too obviously, the provision to the men of non-pecuniary personal or family benefits. Any award of damages should reflect the realities behind these arrangements and their intended purpose.”