Dobson v North Tyneside Health Authority

There is generally no property in a corpse. A person charged by law with its interment may have custody and possession until burial, but any such right is limited to that purpose. The next of kin have no established proprietary right merely as next of kin.

Human tissue may arguably become property after lawful application of human skill, such as embalming or preparation as a specimen. Fixing a brain in paraffin during a post-mortem, however, did not create a right to possession or ownership in the deceased’s relatives. Claims in conversion, bailment, wrongful interference and negligence therefore disclosed no reasonable cause of action. The spoliation maxim cannot assist unless wrongdoing is first established.

The plaintiffs, suing as administratrix of the deceased’s estate and as her son’s litigation representative, alleged negligence against one health authority and sought to amend their claim against another. The deceased’s brain had been removed during a coroner’s post-mortem, fixed in paraffin and later no longer existed. The plaintiffs alleged that its loss prevented them proving whether brain tumours were benign or malignant.

A district judge struck out the claim against the second defendant. His Honour Judge Harkins dismissed the plaintiffs’ appeal and granted leave to appeal. The central questions were whether the plaintiffs had any property, possessory, bailment or negligence claim concerning the preserved brain, and whether the maxim omnia praesumuntur contra spoliatorem shifted the evidential burden.

1. Appeal dismissed. Lord Justice Peter Gibson delivered the principal judgment. Lord Justice Thorpe and Lord Justice Butler-Sloss agreed. The order striking out the claim against the second defendant was upheld, with costs subject to legal aid taxation; a section 18 order was made and leave to appeal to the House of Lords was refused.
2. In the present state of English authority, there is no property in a corpse. The rule is qualified by the custody and possession available to executors, administrators or others charged by law with interment, but the purpose of that right is burial or other proper disposition. No authority established an equivalent right in next of kin as such.
3. The proposition that human remains may become property after a process or application of human skill was properly arguable. Doodeward v Spence, however, did not itself establish that general proposition. The lawful removal and paraffin fixation of the brain during a post-mortem did not make it comparable to an embalmed corpse, anatomical specimen or preserved exhibit. The plaintiffs never acquired ownership or a right to possession.
4. The conversion claim failed because the plaintiffs lacked actual possession or an immediate right to possession when the brain was disposed of. The bailment was between Dr Perry and the second defendant, not the plaintiffs. No wrongful interference was shown. Nor did the pleaded storage of the brain at Dr Perry’s request give rise to a duty of care owed by the hospital to the plaintiffs. The court also expressed reluctance to impose a general duty on hospitals to retain post-mortem tissue indefinitely for possible future civil litigation.
5. The maxim omnia praesumuntur contra spoliatorem applies against a wrongdoer. It cannot shift the evidential burden unless the defendant is first shown to have acted wrongfully. The plaintiffs could not establish that necessary foundation.

• Court of Appeal: dismissed the plaintiffs’ appeal from the order of His Honour Judge Harkins dated 7 August 1995.
• North Shields County Court: dismissed the plaintiffs’ appeal from the district judge’s decision striking out the claim against the second defendant and refusing leave to amend.
• District judge: struck out the claim on the basis that no reasonable cause of action was disclosed.