Sperm loss – no liability in negligence: Yearworth and others v North Bristol NHS Trust (Exeter County Court, 12/3/08 – Judge Griggs)

Clin Risk 2008;14:123-124
doi:10.1258/cr.2008.080025
© 2008 Royal Society of Medicine

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Sperm loss – no liability in negligence: Yearworth and others v North Bristol NHS Trust (Exeter County Court, 12/3/08 – Judge Griggs)

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The Claimants were all male cancer patients who, because ofthe nature of the treatment they were to undergo, had been advisedthat their fertility would be put at risk. Consequently, theyall banked semen samples with the Trust. During the weekendof 28–29 June 2003, equipment used for storage of thesperm failed. The Claimants alleged that on learning about theloss, they had suffered psychologically and, in some cases,that they had lost the opportunity to father children, havingfailed to regain fertility following the treatment.

Breach of duty was admitted by the Trust. However, entitlement to damages was denied and the court ordered that the following four preliminary issues should be determined:

  1. Whether loss of or damage to a sperm sample in itself constitutes a personal injury;
  2. If yes, on what basis should loss or damage be assessed in terms of quantum;
  3. If the loss or damage is not a personal injury, whether it constitutes loss of property;
  4. If the loss or damage constitutes loss of property, how such loss is to be valued and in particular, whether psychiatric injury following such loss can, in principle, give rise to a claim for damages.

 

1. Whether loss of or damage to a sperm sample in itself constitutes a personal injury

It was argued on behalf of the Claimants that the answer was‘yes’ because, although the sperm was outside theClaimants’ bodies when the incident occurred, they had directedthat it should be preserved and be available for their soleuse in the future. Assistance was also derived from a 1993 decisionof the German Federal Court of Justice and from the wordingof the Human Fertilisation and Embryology Act (HFEA), 1990.

The Trust’s counsel argued that it was absolutely plain that this was not a personal injury, the sperm being no longer part of the Claimants’ bodies. Moreover, there had been no physical damage to the person of any Claimant. Any sterility or infertility had been caused non-negligently by the treatment course or by the Claimants’ condition. In fact, at least five of the Claimants had recovered their fertility. In the recent pleural plaques case Rothwell v Chemical & Insulating Co Ltd [2007] 3 WLR876, the House of Lords had held that penetration of the bodyby asbestos fibres forming plaques in the lungs did not constitutean actionable personal injury.

Held: the patients had not suffered personal injury. The startingpoint was one of common sense. Sperm, once removed, is no longerpart of the body: the same could be said of hair preserved ina locket. The German decision relied upon by Mr Townsend arosefrom a different legal and legislative context and did not assistin the present case.

2. If yes, on what basis should loss or damage be assessed in terms of quantum

On behalf of the Claimants, it was argued that there was noconceptual difficulty and that normal principles should apply,with the JSB Guidelines as a starting point. It was acceptedthat a modest reduction in damages was appropriate in any caseswhere it could be shown that artificial conception would turnout to be a failure in any event. It was also maintained thatthe Claimants were primary victims and should recover damagesfor psychiatric trauma accordingly.

Mr Stallworthy argued that the JSB Guidelines could not be appliedbecause the Claimants’ fertility had been damaged non-negligentlyand some of them would have had to use artificial forms of conceptionas a result. The Claimants had suffered no physical pain orsuffering. Any component of an award in respect of being unableto conceive by natural means would have to be deducted.

Held: this answer was somewhat artificial in view of the rulingon question 1. However, the following comments proceeded onthe assumption that the ruling was wrong. The eighth editionof the JSB Guidelines suggests a bracket of £32,800 to£41,250 for loss of sterility in a young man without children,and no impotence. For a similar situation involving a familyman, the bracket is £13,750 to £18,000. However,the present Claimants had not suffered any trauma as such, sothere needed to be a deduction from damages to reflect thisfact, and also deductions because loss of ability to conceivein the normal way was not due to negligence and because of anypsychiatric trauma, which was advanced as a separate claim.Further, the Claimants needed to demonstrate over a 50% probabilityof conception, had the admitted negligence not occurred, beforeany actionable damage or loss was potentially possible. Therealso needed to be a discount to reflect the fact that the Claimantsmight never have been able to father a child in any event. Ifa Claimant had regained his fertility, the award would be substantiallyreduced but not eliminated altogether.

Looking at the matter broadly and without regard to the specificindividual cases, the appropriate bracket was £8000 to£14,000.

3. If the loss of or damage to the sperm sample is not a personal injury, whether it constitutes loss of property

Mr Townsend argued that the Claimants maintained property inthe frozen sperm samples, i.e. they continued to own them, notwithstandingthe restrictive statutory regime as to the use to which theycould be put.

Mr Stallworthy said that he was unaware of any reported UK authorityto the effect that one can ‘own’ a viable body partor living tissue extracted from a living person. On the otherhand, there was clear authority in common law that there couldbe no property in a corpse or in the unprocessed parts of one.It would be anomalous were the position in respect of the twoto be different. Moreover, he said that HFEA legislated awayor severely circumscribed every single one of the normal indiciaof the ownership of property with the sole exception of theright to require samples to be destroyed.

Held: there was no property in a corpse, unless someone appliedspecialized skills to it, or in an organ taken from a body,with consent, either before or after death. Parliament, by socircumscribing in HFEA what can happen to sperm, had broughtabout a situation under which a donor of sperm does not haveproperty in it. A claim in negligence was therefore not sustainable.A claim in contract might be successful, however, if the spermwere damaged or destroyed in breach of the contract.

4. If the loss of or damage to the sample constitutes loss of property, how such loss is to be valued and, in particular, whether psychiatric injury flowing from such loss can in principle give rise to a claim for damages

Owing to the unique nature of the case, the Claimants’ counselargued that damages beyond the nominal ought to be awarded.A bodily product had been damaged, and damages for psychologicaldistress consequent upon loss of fertility ought to be awarded.

On behalf of the Defendants, it was submitted that the Claimants were not primary victims because this was not a personal injury case. Further, as the sperm was not owned by the Claimants at the relevant time, there was no title to sue. Moreover, because the House of Lords had held in the pleural plaques cases (q.v.) that psychiatric injury was not a reasonably foreseeable consequence of discovering the risk of dying a horrible, protracted death, it could hardly be said that learning that one might no longer have a chance of becoming a biological father was foreseeably likely to cause psychiatric trauma. Finally, as secondary victims, the Claimants must fail because they could not satisfy the control tests imposed by the House of Lords in the Hillsborough disaster case of Alcock v Chief Constable of South Yorkshire [1992] 1AC 310.

Held: again, the answer was somewhat artificial in view of theruling on question 3. No particular facts were alleged in thepleadings which might make it specifically foreseeable by theHealth Authority that the Claimants might suffer psychiatricinjury. Forseeability was necessary for the recovery of damages.The Claimants were not primary victims because they had notsuffered a traumatic incident that, viewed in prospect, mightcause physical or psychiatric injury. Further, any psychiatricinjury was not the result of any past event but as a consequenceof apprehension about a future event, namely failure to regainfertility after treatment. Such psychiatric injury thereforedid not sound in damages.

It had been conceded by Mr Townsend that the sperm which hadbeen destroyed had no real monetary value. There was thereforeno direct loss arising from its destruction. There was no rightto an award for consequential damages, i.e. psychiatric injurysuffered in consequence of the apprehension of not being ableto father children.

For all the above reasons, the Claimants were not entitled todamages in negligence.

James Townsend (instructed by Foot Anstey) appeared for the Claimants. Nicolas Stallworthy (instructed by Beachcroft LLP) appeared for the Trust.


Comment

This is an extremely interesting case, believed to be the firstof its kind in any UK jurisdiction. The judgment is very long,and it is clear that the judge examined the various issues verycarefully. The Trust had an uphill struggle, given the admittednegligence. Nonetheless, the outcome demonstrates once again(see previous entries in this column) that an entitlement todamages does not invariably flow from an admitted, or judiciallydetermined, breach of duty. In simple language, not every wronghas a remedy. It remains to be seen if there will be an appealor, picking up on a possible lead from the judge, if the Claimantswill switch their tack and pursue a case in contract. Sincethis was NHS rather than private treatment, such a course willbe fraught with difficulty.

Sperm loss – no liability in negligence: Yearworth and others v North Bristol NHS Trust (Exeter County Court, 12/3/08 – Judge Griggs)
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