Abstract
Introduction
Chris Thorne, partner heading the clinical negligence team at Foot Anstey Exeter and lead solicitor in the sperm destruction cases, reflects upon the Court of Appeal decision in Yearworth and Others v North Bristol NHS Trust [2009]EWCA Civ 37, also described in earlier issues of Clinical Risk. 1,2
The combined talents of the Lord Chief Justice, The Master of the Rolls and Wilson LJ have produced a judgment that exhibits a pragmatic approach, demonstrates an ability to neatly sidestep some of the more controversial issues arising out of this case and ultimately robustly re-asserts the right of the Court to develop the common law to meet the needs of a changing society. The case provides points of discussion for lawyers practising in the field of personal injury, property and bailment.
Background
In 2002 a number of young men were diagnosed with cancer. Prior to undergoing chemotherapy they were offered the chance to store samples of semen to guard against the possibility that chemotherapy may render them infertile. The samples were held by the Defendant Trust on terms, in particular that the Trust would ‘store sperm for your future use’ and ‘undertake to look after it with all possible care’. The Claimants were among the patients who took up that offer.
Sadly, on 28–29 June 2003, the storage system at Southmead Hospital in Bristol failed. The liquid nitrogen, which was used to maintain the temperature in the storage tanks at –196°C, fell below the requisite levels. With no automatic topping-up system functioning and no attempt to manually top up the tanks, the samples thawed beyond use.
The claims
The Defendant Trust admitted a breach of duty but put the Claimants to proof of their claims.
In the absence of any precedent upon which to base the claims, those acting for the Claimants framed the claims in tort, pleading that as a result of the Defendant's admitted breach of duty each Claimant had suffered:
A personal injury; A loss of property; Psychiatric injury or distress consequent upon the injury of loss of property.
At the time of issue of proceedings it was not clear whether the Claimants had suffered a permanent or temporary loss of fertility. By the conclusion of the Court of Appeal hearing, four had fortunately regained fertility, but five suffered psychological injury. The cases were not, in the words of their Lordships, ‘paradigm’. Among the other groups of Claimants in cases arising out of similar incidents at Sheffield and Edinburgh hospitals, there are a number of Claimants with total and irrecoverable loss of fertility and ongoing psychiatric damage.
In an attempt to narrow the issues at trial, the Claimants sought a preliminary hearing on the discrete legal issues in these novel and previously unlitigated circumstances. The Court agreed with the split-trial approach, and in January 2008 Griggs HHJ sitting in the Exeter County Court heard argument on the following issues:
Whether the damage to the sperm in itself constituted a personal injury; If so, upon what basis should the amount of damages be assessed; Alternatively, whether the sperm was the property of the Claimants; If so on what basis the amount of damages should be assessed and in particular whether they could include damages for any psychiatric injury.
Griggs HHJ came to the conclusion that the destruction of the sperm was neither a personal injury nor a loss of property and thus the Claimants were left with no remedy in respect of the Defendant's admitted breach of duty.
The appeal
A highly engaged and proactive Court of Appeal directed the Claimants to amend their pleadings to include a claim in bailment, received in evidence copies of the forms of authority signed by the Claimants on storing the sperm with the Defendants, which were not considered at first instance and waived aside the Defendants objections that such late changes did not comply with the requirements of Ladd v Marshall. The late amendment arose out of circumstances with which all the parties were fully familiar and were at least in part based upon the same or similar arguments to those relating to negligent damage to property.
The judgment
From this unusual history, how did the Court of Appeal choose to address an entirely novel area of English law? The short answer is with classic pragmatism.
Personal injury
In relation to the assertion that the loss of sperm constituted a personal injury, their Lordships felt little compunction to extend the meaning of ‘personal injury’ to the damage of living tissue outside the body. They acknowledged that it was open them to do so and that there were meaningful arguments to be advanced on the point but in the absence of any English or Commonwealth authority they felt comfortable in rejecting European authority on the point. Their reason for so doing was in part due to the fact that the absence of a personal injury did not result in the Claimant's having no basis for a claim. They further identified ‘uncomfortable anomalies’ that would arise from situations where, by way of example, the Claimant predeceased the loss of the sample and concluded that such anomalies were best avoided by upholding the decision at first instance on this issue.
Thus fascinating arguments about where responsibility would lie if an amputated limb were damaged beyond use by a third party while awaiting re-attachment to the body from which it had been severed in full anticipation of recovering use of the same by the wonders of micro-surgery, were not merely esoteric, they were redundant.
Property
If not a personal injury, did then the Claimants have a right to any claim arising out of negligent destruction of their ‘property’?
Leaving aside a brief excursion into the true meaning of ‘my’, as in ‘my body’, ‘my child’ or ‘my sperm’, the argument centred on three areas:
the historical chain of authorities concluding with the premise that there is no property in a corpse; the authorities from the United States relating to live tissue; the restrictions placed upon the use of sperm under Human Fertilisation and Embryology Act 2008, when it comes into force.
In relation to the first of these, the Courts were bold in their assertion that law dating back more than 400 years, culminating in a decision of their brother Lordships of Appeal in Dobson v North Tyneside Health Authority [1997]1 WLR 596 was not an appropriate basis upon which to approach recent developments in medical science.
When faced with what appeared to be unhelpful US decisions the Court took particular interest in Hecht v Superior Court of Los Angeles County (1993) 20 Cal Rptr 2d 275 where a man left sperm by his Will to his surviving partner. The Court in that case held that the sperm was capable of disposition by Will such that it amounted to ‘property’. Their Lordships regarded the decision as a significant step ‘towards recognition of ownership of parts and products of a living body’.
The final and substantial hurdle which the Claimants were required to overcome in relation to the issue of property was the acceptance by the judge at first instance that the provisions of the Human Fertilisation and Embryology Act 2008 were so prescriptive as to render the Claimants' control over their sperm less than required to establish ownership.
The Court were, however, unmoved by this line of argument. The Claimants may be restricted in their ability to store, test, prepare, package or transport the sperm by law but it remained their ultimate right to decide whether it should be used for its intended purpose, or indeed destroyed.
Judge LCJ concluded ‘in reaching our conclusion that the men had ownership of the sperm for the purposes of their present claims, we are fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the Trust's breach of duty, namely preclusion of its future use’.
Bailment
Once their Lordships had reached the conclusion that the sperm was property, it was only a short step to find that loss of the samples was a breach of gratuitous bailment. The terms of the storage documentation signed by the Claimants at the request of the Defendant Trust explicitly confirmed that the Trust would ‘undertake to look after (it) with all possible care’ even to the extent of specifying that it would ‘be stored at –196°C’.
Damages
Much of the hearing at first instance and on appeal centred on Grieves v FT Everard and Sons Ltd and the Defendant's argument that loss of fertility could not compare with the prospect of loss of life in Grieves, but it is the degree of foreseeablity and not the extent of the distress which is the issue and one remitted to the trial judge when addressing quantum, with an indication that psychiatric loss or injury was foreseeable in these cases, and in so far as this satisfies a condition precedent to the award of damages, may give rise to a right to damages.
Linked to the issue of foreseeablity was that of primary victims. If the claim sounded in damages for psychiatric injury the rule in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 clearly establishes the limits to an award of such damages. The Court again felt able to sidestep deep analysis of the law on this issue and avoided an extension of the secondary victim principle by the simple expedient of making findings in relation to bailment which gave rise to an entitlement to damages.
If the loss was a breach of bailment, could that breach give rise to damages for distress and psychiatric injury? The answer was emphatically yes, on the grounds that bailment by its very nature is a form of contract. Contract law generally excludes recovery of damages for anything other than pure economic loss, save where ‘contracts … are not purely commercial but which have as their object the provision of enjoyment, comfort, peace of mind or other non-pecuniary personal or family benefits’ (Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518, at [70]).
Taking that principle as their starting point Judge LCJ was happy to conclude on behalf of his colleagues that: ‘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.’
In summary their Lordships had found a remedy to right a wrong, not on the basis that there had been a personal injury but that the sperm was the property of the Claimants, held by the Defendants on particular terms such that the very purpose for which it was held was undermined and as a result damages for distress and psychiatric loss were recoverable.
Implications
Does this judgment open or close floodgates in respect of claims arising out of the destruction of live tissue held outside the body? Probably neither. The most favourable outcome would be for health trusts and private storage providers to take the modest and simple steps necessary to prevent such incidents happening in future. Accepting that no system is ever perfect, where cases do arise, the injured parties now know they have a remedy and the route to follow to achieve that remedy. There are, however, aspects of this judgment which leave certain arguments open to further debate as law tries to keep pace with science.