[2009] EWCA Civ 37
Appellants claimed they suffered psychiatric injury upon learning that sperm maintained in Trust’s storage bank had become damaged when the storage equipment failed. The Appellants were cancer patients who had banked sperm at the Trust free of charge due to risks of their treatment affecting fertility. At first instance, the Court held that the sperm did not amount to the Appellants’ property and the damage to it did not constitute a personal injury.
The Court of Appeal held that for the purposes of claims in negligence, the Appellants had ownership of their sperm. Provisions of sections 3 & 4 of the Human Fertilisation and Embryology Act 1990 (“the Act”), under which the Trust held samples, did not amount to derogation from ownership. In addition to an action in tort, the Court concluded Appellants had a distinct cause of action under the law of bailment against the Trust as it had assumed responsibility for careful storage and to acquire exclusive possession of the samples. The sperm was the property of the Appellants in tort and bailment and they were entitled to damages for mental distress in its unauthorised destruction.
