Jonathan Yearworth & Ors v North Bristol NHS Trust

Damage to sperm after removal from the body for storage is not itself personal injury. For negligence purposes, sperm produced and ejaculated for the producer’s possible future use can be his property. Restrictions imposed by the Human Fertilisation and Embryology Act 1990 do not extinguish that ownership. A gratuitous bailee who accepts exclusive possession, undertakes to take care of stored sperm and holds out special preservation skill may be liable in bailment. Where the arrangements are directed to personal or family benefits, damages may in principle include foreseeable psychiatric injury or actionable distress caused by breach of a specific storage promise. The remaining questions of causation, foreseeability and quantum were remitted for determination.

Six cancer patients, including the administratrix of a deceased patient’s estate, provided semen samples to a fertility unit operated by the Trust before chemotherapy. The Trust undertook to freeze and store the samples, but the storage tanks were not topped up and the sperm perished.

The claims were pleaded in negligence. Five men alleged psychiatric injury and the sixth alleged mental distress. The Exeter County Court determined preliminary issues against them, holding that the sperm was neither personal injury nor property and that damages were unavailable.

On appeal, the men argued that damage to the sperm was personal injury or, alternatively, that the sperm was their property. They also sought to amend their claims to plead gratuitous bailment. The central issues were whether the sperm was property for negligence purposes, whether the statutory regime affected that conclusion, whether bailment existed, and whether psychiatric injury or distress could be recoverable.

1. Appeals allowed. The Court of Appeal set aside the determinations on property and psychiatric injury, substituted determinations that the sperm was the men’s property for the purposes of their tort and bailment claims, and held that damages for psychiatric injury or mental distress were legally recoverable in bailment in principle. The remaining issues were remitted to the county court.
2. Damage to sperm after its removal from the body for storage was not personal injury. Treating damage to a substance generated by the body as bodily injury would be artificial and would create uncertain distinctions and anomalies. The approach in the German Bundesgerichtshof decision, BGHZ, 124, 52, was distinguished because it arose in a legal system requiring the loss to be classified as personal injury.
3. Ownership had to be analysed in context. It was a convenient description of a collection of rights, and not every standard incident of ownership had to be present. The men had ownership of the sperm because they alone generated and ejaculated it, its sole intended object was possible future use for their benefit, interim storage was ancillary to that use, no other person had rights in it, and the Trust’s breach prevented the very use for which it had been produced.
4. The Human Fertilisation and Embryology Act 1990 restricted the men’s ability to use, store and direct the use of the sperm, but did not eliminate ownership. In particular, the statutory consent provisions preserved their absolute negative control over use and storage, including the ability to withdraw consent and require destruction.
5. The Trust’s fertility unit was also a gratuitous bailee. It had chosen to take exclusive possession, expressly undertaken to look after the sperm with all possible care, held itself out as possessing special preservation skill, and promised storage at minus 196°C. The Trust’s admitted failure to maintain the nitrogen level was therefore capable of constituting breach of bailment as well as negligence. The measure of damages might be closer to that for breach of contract than tort.
6. Each claimant still had to establish that any psychiatric injury or distress was caused by the loss and was a reasonably foreseeable consequence of the breach. The court did not decide whether foreseeability alone would suffice in tort where damage to property was communicated rather than witnessed. The bailment arrangements were closely akin to contracts whose object included peace of mind and non-pecuniary personal or family benefits. Foreseeable psychiatric injury or actionable distress was therefore recoverable in principle.

1. Court of Appeal (Civil Division): Appeals allowed. The determinations on property and psychiatric injury were set aside, revised determinations were substituted, and the remaining issues were remitted to the county court.
2. Exeter County Court: His Honour Judge Griggs determined four preliminary issues on 12 March 2008. The claims were effectively brought to an end because the sperm was held not to be personal injury or property and damages were denied.