From: Neil Foster <>
Date: 12/02/2009 00:51:36 UTC
Subject: Negligence and bailment re body parts

Dear Colleagues;
For those who haven't seen it yet, the amazing decision in Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 (04 February 2009) deals with such fascinating questions as (1) is it "personal injury" to destroy someone's detached body part? (here, sperm designed to be stored when cancer treatment was taking place); (2) can such a body part be "personal property"? (yes, with reference to the grisly HCA decision in Doodeward v. Spence (1908) 6 CLR 406); (3) if so, is it not only actionable negligence but also actionable under the principles of bailment to carelessly let it be destroyed?; (4) can damage be recovered for distress short of actual psychiatric illness suffered by the donors- yes, interestingly enough, by analogy with Jarvis v. Swans Tours Ltd [1973] 1 QB 233 and by reference to two other Commonwealth decisions providing for mental distress in an action against a bailee.
My only quibble with the decision, at least for the moment, is the Court's odd reference at [46] to the question "whether, independently of an action in tort, the men had a distinct cause of action against the Trust under the law of bailment". To my mind (others may disagree) the law of bailment is simply a way of deciding the question of who, in some commonly occurring circumstances, is entitled to possession; any action taken in relation to disturbance of that possession is still an action in tort (conversion, detinue, trespass to goods etc or whatever local version of these torts exists). But I don't necessarily disagree with the result.
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931