Putting a 'kilt on Yearworth': Holdich v Lothian Health Board [2013]

The Outer House of the Court of Session in Scotland has allowed a claim for compensation, brought by a man whose sperm may have been damaged by a failure of a storage vessel, to proceed to a full trial (1).

According to the facts presented, Richard Holdich deposited his sperm at the defendant's storage facility in 1992 before receiving treatment for cancer, which he was advised could make him infertile. In 2001 the claimant requested his sperm so that he could undergo IVF with his wife but he was informed that because of a malfunction involving a leak of liquid nitrogen, his sperm could have been damaged and should not be used.

On considering the reduced chances of conception and the risk of chromosomal abnormalities, miscarriage and birth defects if the sperm had been damaged, the claimant decided not to proceed with IVF using his sperm. He then brought a claim in damages for distress, depression and loss of the chance of fatherhood against the Lothian Health Board. The claim was brought primarily as a claim for mental injury following 'property damage' under breach of contract and, secondly, under the law of delict (equivalent to tort law) as injury consequential to damage to the sperm.

The defendants sought to have the claim 'struck out' on the basis that the claimant had not disclosed a cause of action, saying that the law in Scotland does not compensate for mental injury in such circumstances or for 'mere distress', and does not recognise 'loss of autonomy' as a compensable category.

The judge, Lord Stewart, held that the claimant's case should proceed to a full hearing. He said in the opinion, delivered in December, 'I take the view that the claim in delict for "pure" mental injury caused by negligent out-of-body damage to sperm is apt for proof and certainly cannot be rejected out of hand', adding that 'if the delictual case is to go to proof I think the property-contract case should be remitted for probation too'.

He went on to say: 'The case raises questions of novelty and importance in a developing area of law which demand to be answered after all the facts are known'.

While it is at this stage unclear when, or if, the case will go to trial and what further legal comment may arise, the opinion is significant for its detailed evaluation of a number of legal issues around claims arising from the negligent damage to or destruction of gametes. Lord Stewart took the opportunity to review the relevance of arguments raised in the English case of Yearworth v North Bristol NHS Trust and makes a number of statements that may be of direct relevance to claims of this kind. He said 'there are apparently 20 other cases waiting in the wings', involving claims for consequential financial loss as well as for mental injury.

The judge considered possible claims arising from the destruction of gametes in actions for personal injury (voicing support for the German approach of 'functional unity' of stored gametes with the living body, calling such arguments 'plausible'), for mental injury in contract under a property-contract model used in Yearworth, and also in tort for mental distress.

After a lengthy discussion over how sperm could be deemed property (so to enable a claim for mental injury resulting from damage to property in contract or tort), and also a debate over the existence of a contract in the deposit of gametes using NHS services, Lord Stewart then also considered the claim in tort for damage to sperm as something sui generis, which is neither person or property. He admitted he was left 'uncertain' about the nature of the dispute around the claimant's 'loss of autonomy' but did consider that a claim for 'loss of autonomy' was at least capable of supporting a standalone claim, attracting a conventional award given as in the English case of Rees v Darlington Memorial Hospital NHS Trust. However, Lord Stewart did appear to prefer such a damages claim as forming part of a claim for solatium (compensation for emotional harm), which recognises non-patrimonial damages whether representing damage to rights and interests, personal affront or personal injury, negligently or deliberately inflicted, he said.

For those who advocate the recognition of an infringement of autonomy as a separate head of damages or deserving its own tort, the decision, albeit limited in application, might be supportive of the development of the law along these lines. While Lord Stewart seems to prefer characterising such loss in cases involving an infringement of the ability to father children as mental injury, he does not reject loss of autonomy as an independent head of damage in its own right. Furthermore, he appears to be unpersuaded by the conventional award argument from Rees. However, Lord Stewart does not go so far to recognise autonomy as a right, as such, suggesting that such cases may be better subsumed within general claims for mental distress.

Tentatively, the ruling can also be seen as progressive in that it appears to challenge traditional models of actionable damage. Lord Stewart's somewhat unorthodox views on personal injury as potentially capable of including damage to sperm through a different conceptualisation of the 'body' may be more fitting (with further expansion) to the view that our bodies are not merely defined as physical chattels so inherent in legal formalist traditions. Indeed, it could be said that he appears to almost eschew doctrinal formalism when dealing in claims of such developing technological and social issues - although this may be putting it too strongly. However, the opinion may provide some momentum for an incremental development of the law's approach towards novel harms arising from assisted reproductive technologies.

Another point to note is that Lord Stewart also seems keen to explore building claims in this area using established legal principle, such as foreseeability of harm and the assumption of responsibility. Such an approach may be contrasted with piecemeal policy responses and is a welcome contribution to a debate where the starting point is often situated outside legal principle in broader notions of justice. The detailed determination of the act of giving and receiving in gamete donation (which can perhaps be better thought of as a relationship) is insufficient to ground causes of action without further reference to core liability principles that also help promote coherency in the law's approach to such claims.

The decision highlights the limitations of Yearworth, a decision that can be criticised for a somewhat unsatisfying approach in responding to the potential injustice of leaving losses resulting from the destruction or damage to sperm without a route to compensation. In my view, a balanced, positive discussion of the private law relationship between gamete donor and fertility services is required for the determination of civil liability involved in these claims and this ruling is a nod in this direction.

As for putting a 'kilt on Yearworth', Lord Stewart aptly noted that 'this cannot be done'.