| OUTER HOUSE, COURT OF SESSION |
| | [2013] CSOH 197 |
| A28/05 | OPINION OF LORD STEWART in the cause RICHARD HOLDICH Pursuer; against LOTHIAN HEALTH BOARD Defenders: ________________ |
Pursuer: O'Brien QC, Love; Balfour & Manson (for Foot Anstey Sargent Solicitors, Exeter)
Defenders: Stephenson QC, D Ross; NHS Scotland Central Legal Office
19 December 2013
[1] This is a case about the failure of one of the storage vessels in a sperm bank, otherwise "a cryogenic storage facility". The facility was apparently owned and managed by the defenders. I say "apparently" because this is not actually spelled out in the written pleadings. The defenders are a statutory provider of health services. In 1992 the pursuer, then aged 22, deposited three sperm samples in the defenders' facility. He did this before having treatment for testicular cancer which, he was advised, would, and which in fact did, make him infertile. He deposited his sperm to preserve his chances of becoming a father. The pursuer later married. In August 2001 the pursuer requested his stored sperm so that he and his wife could try and have children by in vitro fertilisation [IVF]. He was then told that there had been a malfunction.
[2] The malfunction involved a leak of the cooling medium, liquid nitrogen. Because of the leak the temperature of the storage vessel rose for a period from minus 190o C to minus 53o C. All of the pursuer's sperm was stored in the affected vessel. The initial advice to the pursuer was that his samples could have been damaged and should not be used. The apprehended damage reduces the chances of conception and increases the risk of chromosomal abnormalities, miscarriage and birth defects. After a period of discussion, during which conflicting advice was offered, the pursuer decided not to proceed with IVF using his sperm samples. He avers that his decision was a reasonable one. The samples remain in cryostorage. The pursuer claims compensation from the defenders for distress, depression and loss of the chance of fatherhood, all on the basis that damage to his sperm samples was caused by the defenders' negligence. The loss of the chance of fatherhood is characterised as "loss of autonomy".
[3] The case comes to me on the procedure roll for a debate on the defenders' preliminary plea, the question being whether, as the defenders submit, the pursuer's pleadings demonstrably fail to disclose a cause of action relevant in law, or which could be relevant, for recovery of damages for distress, depression and loss of autonomy. For present purposes I have to take the pursuer's averments pro veritate. The defenders argue that even if all the facts averred by the pursuer are proved he has failed to state a relevant case for compensation under the heads claimed: the law does not compensate for mental injury, in this case distress and depression, in the situation postulated by the pursuer; the law does not generally compensate for "mere distress"; and the law does not recognise "loss of autonomy" as a compensable head of claim. These are, it is said, questions of "pure" law which can be decided on the pleadings without proof of the facts. Parties agree that the Jamieson test applies, the question being whether the action will necessarily fail, the onus being on the defenders who seek dismissal at this stage [Jamieson v Jamieson 1952 SC (HL) 44 at 50 per Lord Normand].
[4] The pursuer's case is presented primarily as a claim for mental injury consequential on property damage in breach of contract et separatim, secondarily, as a claim for "pure" mental injury in delict, that is on the basis of fault at common law, et separatim, if somewhat faintly, as a novel type of claim for damage to sperm, neither person nor property but something sui generis, with consequential mental injury, again on the basis of common law fault. The main issues include the following: is the pursuer's mental injury consequent on bodily injury, is it "pure" mental injury or is it mental injury consequent on damage to sperm characterised as moveable property or something else sui generis; does damage to the sperm samples constitute personal injury, is it damage to the pursuer's moveable property or is it something else; did the act of handing over the samples for storage effect a gratuitous contract of deposit for safekeeping, depositum, of the pursuer's moveable property between the pursuer and the defenders; is the question of the defenders' liability for the pursuer's mental injury to be decided by contractual rules or by delictual rules? These are not just categorisation controversies: how these issues are decided could make the difference, I am told, between recovery of damages and non-recovery.
[5] I heard legal argument on these issues over eight days ending on 17 May 2013 and made avizandum. I have now decided to reserve the defenders' preliminary plea and to allow parties a proof of their respective averments before answering the questions of law. 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. If the delictual case is to go to proof I think the property-contract case should be remitted for probation too. Though I am not necessarily convinced that the property-contract case as currently presented is sound in law, equally I am not convinced that, if differently presented, it is bound to fail and, anyway, no additional evidence will be required. A separate reason for allowing proof on all matters is that 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. I am well aware that lots of books, book chapters and journal articles have been written about the issues touched on in this opinion. Academics may be irritated by the opinion's apparently narrow knowledge base and by my failure to address the philosophical, ethical and policy considerations: but court judgments are about particular disputes and have to be based on the arguments and material presented. There are time constraints and funding constraints. In the present case counsel on both sides have to be complimented on the assistance they have given within these constraints.
Personal injury claims for damage to gametes
[6] The authorities to which counsel refer plainly show that the law has no difficulty compensating mental injury and losses consequent thereon where the mental injury is itself a consequence of or associated with negligently caused bodily injury, even though the bodily component may be trivial. However, both sides agree, rightly or wrongly, that the law as it stands is antagonistic to the idea that damage to stored sperm can constitute bodily injury. I say "rightly or wrongly" because no court in Scotland has actually ruled on the question; and it is not obvious to me that a Scottish court would necessarily negative the proposition. Would it be unreasonable to extend the concept of injury to damage to viable bio‑matter produced or removed for the purpose of the living subject's own reproduction or medical treatment? Clearly there is such a thing as out‑of‑body treatment, for example high‑dose radiation of cancerous organs removed to protect surrounding tissue. Thinking of autologous grafts, transplants and transfusions, would it be far‑fetched to deal with viable bio‑matter outside the body as part of the subject's person? Would it do violence to the law? Would it run counter to current norms of medical practice? Would it be inconsistent with the regulatory regimes? Would it offend morality?
[7] This class of bio‑matter includes ovarian tissue intended for re‑implantation to facilitate conception in vivo. Would it then be unreasonable to treat gametes, male or female, intended for in vitro fertilisation as part of the subject's body, or possibly bodies in the case of unimplanted embryos? In Yearworth the Court of Appeal noticed the German law theory of the "functional unity" [eine funktionale einheit] of stored gametes with the living body. The theory is a plausible one to my mind [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 21 per Lord Judge CJ giving the judgment of the court; BGHZ 124, 52 (VI ZR 62/93), 09.11.1993 (key words, Schmerzensgeldanspruch, Vernichtung, Spermakonserve), English translation in the web site of The University of Texas School of Law, http://www.utexas.edu/law, Institute of Transnational Law, foreign law translations University of Oxford, Institute of European and Comparative Law and Professor B S Markesinis].
[8] The Court of Appeal also stated: "Ancillary to the object of the later possible use of the sperm is the need for its storage in the interim." As a matter of statutory interpretation, effective cryostorage of semen is arguably a practice "designed to secure that embryos are in a suitable condition to be placed in a woman" and, on that view, cryostorage is a practice authorised in the course of providing treatment services under the Human Fertilisation and Embryology Act 1990 ["the 1990 Act"]. Thus it can be said that the 1990 Act envisages the keeping of gametes for the subject's own reproduction as being, if not treatment in itself, an activity which is ancillary to the provision of treatment services; the statutory consenting regime follows the therapeutic model; and there is a subtle indication that the legislature thinks of out‑of‑body harm to gametes as injury giving rise, potentially, to tortious liability rather than as property damage for which a contractual or contractual‑type remedy might be available [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 45(f) per Lord Judge CJ giving the judgment of the court; Human Fertilisation and Embryology Act 1990 s. 2, sched 1 para 1 and sched 3; Human Fertilisation and Embryology Act 2008 Act s. 44, inserting new section 1A in the Congenital Disabilities (Civil Liability) Act 1976].
[9] I have to confess that I do not have the same difficulty with the idea of functional unity as the Court of Appeal did in Yearworth. The Court of Appeal rather pushed the theory aside, stating that the 1993 decision of the Bundesgerichtshof had been superseded by the repeal of section 847 (in 2002, I believe) and the substitution of a new section 253 of the German Civil Code on "intangible damage" [immaterieller schaden]: but ― I do not know ― is it possible that section 253 now gives legislative effect to the 1993 decision? There is, however, no point in discussing the pros and cons of functional unity on this occasion: pursuer's counsel, junior and senior, categorically repudiate the idea that damage to sperm samples could be injury to the pursuer's body, even in the alternative; and so I have to judge the case, as it is presented, on the basis that it is not a claim for bodily injury with consequential mental injury [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at §§ 18―24 per Lord Judge CJ giving the judgment of the court].
Delictual claims for "pure" mental injury
[10] Actionable negligence has to involve fault, a breach of duty. The common law fault theory depends on the neighbourhood principle: a duty of care is owed to persons who are neighbours in law, to persons, that is, who are in a relationship of proximity to the wrongdoer and within the reasonably foreseeable ambit of harm. In cases of bodily injury proximity can be subsumed to the extent that reasonable foreseeability alone appears determinative of the duty relationship. Conversely, a duty to take care not to cause "pure" mental injury tends to be recognised only where the proximity test is independently satisfied. "Proximity" refers variously to the propinquity of the claimant to the harmful event in time and space; to the relationship of the claimant, if not the original victim, to the original victim; and to the connection of the claimant with the alleged wrongdoer, for example through a pre‑existing contractual nexus but certainly not limited to contractual situations. Other controls, not necessarily determinative of the duty relationship, are designed to exclude recovery for harm below a certain threshold of gravity and ― absent foreknowledge of special susceptibility ― for remote and idiosyncratic reactions: this is, I think, where the concepts of "nervous shock", "ordinary fortitude" and "recognised psychiatric condition" fit in. Considerations of "distributive justice", of what is "fair, just and reasonable" and whether there has been "assumption of responsibility" by the wrongdoer are occasional visitors to the debate [McLoughlin v O'Brian [1983] 1 AC 410; Alcock v Chief Constable of South Yorkshire (HL (E)) [1992] 1 AC 310; Page v Smith [1996] AC 155; McLoughlin v Grovers (A Firm) otherwise McLoughlin v Jones (CA) [2002] QB 1312; Campbell v North Lanarkshire Council & Anor 2000 SCLR 373; Anderson v Christian Salvesen Plc 2006 SLT 815; Rothwell v Chemical & Insulating Co Ltd & Anor (CA) [2006] ICR 1458 and ((HL)E) [2008] 1 AC 281].
[11] The perceived complexities and anomalies of the law of damages in delict for "pure" mental injury have been discussed for a number of years and are currently the subject of consultation in advance of intended legislation. The Scottish Law Commission has described the existing law as "unprincipled" and "as suffering from defects and being in need of reform": I think, with respect, that "unprincipled" is possibly going too far; and the question of "defects" is a matter on which opinions differ. Nonetheless, true it is that "pure" mental injury claimants present the court with two main challenges. The first challenge is to decide whether their claims belong in the "sole victim" or "primary victim" category and, for claims that do not, the second challenge is to decide whether the Alcock control mechanisms for "secondary victims" are satisfied [Scottish Law Commission, Report on Damages for Psychiatric Injury, Scot Law Com No 196 (HMSO, Edinburgh, 2004) §§ 1.4, 1.9, 3.5; The Scottish Government, Civil Law of Damages: Issues in Personal Injury - a Consultation Paper (Edinburgh, 2012); Alcock v Chief Constable of South Yorkshire (HL (E)) [1992] 1 AC 310 at 406H-407B, 410G-411B per Lord Oliver of Aylmerton].
[12] Returning to the case as presented, the pursuer avers: "The sperm was the property of the pursuer"; and the claim is formulated, primarily, as one not of reparation for mental injury in delict but as one of reparation for damage to moveable property on the ground of breach of contract with consequential mental injury. If the formulation seems startling, it is ― whether or not jurisprudentially sound ― explicable. In the absence of "functional unity", the pursuer has suffered no bodily injury as a result of the cryogenic debacle. He says that he has suffered mental injury and he wants the law to give him redress. There are apparently 20 other cases waiting in the wings in some of which claimants say they have suffered not just mental injury but also financial loss consequent on mental injury.
[13] The pursuer's lawyers, including the solicitor who acted for the plaintiffs in Yearworth, apparently see the combination of property and contract law as the pathway to compensation for mental injury for two reasons, namely (1) because this approach has the blessing, more or less, allowing for different terminology, of the Court of Appeal of England & Wales in the Yearworth case; and (2) because the Hadley v Baxendale rule for damages in breach of contract is thought to be capable of accommodating the pursuer's claim for compensation for mental injury without the need to grapple with the delictual proximity test and additional control mechanisms. The property‑contract theory is supported by Professor McBryde in an article on the implications of Yearworth which has clearly influenced the pursuer's pleadings and argument [Hadley v Baxendale (1854) 9 Ex 341; Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1; W McBryde, "Contract law ― a solution to delictual problems?" 2012 SLT (News) 45].
[14] As Professor McBryde acknowledges, this way forward was signposted in the 2007 article by Edinburgh trainee solicitor Matthew Boyle. The article was cited by Lord Hope of Craighead in the pleural plaques cases Rothwell and Ors, particularly in connection with the Grieves claim for anticipatory anxiety and depression where there was no actual bodily injury. Rothwell and Ors was founded on in Yearworth at the first instance for a different purpose. The learned district judge appears to have appreciated its true significance, for he said in the last paragraph of his judgment: "If there had been a contract... by the terms of which the defendants agreed to provide facilities for maintaining viable sperm, then... it seems to me that the claimants would be entitled to compensation" [M Boyle, "Contractual remedies of employees at common law: exploring the boundaries", Jur Rev 2007, 2, 145 at 149―150; Rothwell v Chemical & Insulating & Co Ltd [2007] 3 WLR 876 at § 59 per Lord Hope of Craighead, also at § 7 per Lord Hoffman and at § 74 per Lord Scott of Foscote; Yearworth & Ors v North Bristol NHS Trust, 12 March 2008, WL 5044430 at §§ 34, 159, 166].
Can you put a kilt on Yearworth?
[15] The defenders say that the pursuer is "trying to put a kilt on Yearworth", something that cannot be done. Yearworth was about six cancer patients who, prior to chemotherapy, had deposited sperm samples in the cryostore at Southmead Hospital Fertility Unit, Bristol. Before use, the samples thawed because of a freezer failure and, it was assumed, became unviable. The claims were variously for mental injury, distress and loss of the opportunity to become a father. "None of the claims", said the Court of Appeal, "amounts to a paradigm case" [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 12 per Lord Judge CJ giving the judgment of the court].
[16] On the trial of preliminary issues at the first instance, District Judge Griggs dismissed all six claims, holding inter alia that damage to sperm stored for use by the providers did not constitute personal injury; that damage to sperm did not constitute loss of property; and that if damage to sperm constituted loss of property such loss did not found a claim for damages for mental injury. The plaintiffs appealed. During the hearing in the Court of Appeal, at the prompting of the bench, the plaintiffs amended their notices of appeal to claim that their sperm samples were personal property, that there had been "gratuitous bailment" of their sperm samples and that the defendants were in breach of their undertakings to take care of the samples. The court also allowed the plaintiffs to lodge copies of the storage requests, consent forms and information leaflets. These had not been available to the learned district judge.
[17] The Court of Appeal held that damage to sperm did not constitute personal injury: but, allowing the appeal, that the claimants had ownership of their sperm for the purpose of their claims in tort and, as amended, bailment; that there had been gratuitous bailment of the sperm to the defendants' storage unit; that the bailment was closely akin to a contract having as its object fertility preservation with peace of mind for the claimants; that there had been a breach by the defendants as bailees of a specific promise to store the sperm at minus 196o C; and that it was open to the claimants to recover damages in bailment for reasonably foreseeable distress and mental injury. The actions were remitted to the county court for determination of the remaining issues [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at 2C-3B, at §§ 56―60 per Lord Judge CJ giving the judgment of the court].
[18] The defenders cite the Encyclopedia for the proposition that a Scots lawyer "is likely to be perplexed and bewildered by a book on the law of property in England". It is important to know, according to the defenders, that "the English law of bailment... is so fraught with principles peculiar to English contract law and the proprietary torts that it cannot be equiparated with the Scots law on the subject". The defenders point out, correctly, that bailment can be "akin to contract" but is not a contract, whereas the nearest Scots equivalent, deposit, is contractual; and that Yearworth does not address either the question of the power of statutory health authorities to make contracts with individual patients or the question of contractual intent. Both questions arise in the present case. As will appear in what follows, the defenders also criticise the reasoning in Yearworth on its own terms [The Laws of Scotland: Stair Memorial Encyclopedia (Edinburgh, 1993) vol 18, part I: General Law, §§ 2, 6; vol 8, Deposit, § 1, note 3].
[19] As to the facts, the defenders submit that six facts determined the issue of liability in bailment in favour of the Yearworth plaintiffs: but four of those facts are absent in Mr Holdich's case. The four facts are as follows. In Yearworth there was an express promise by the defendants to "look after" the sperm "with all possible care"; in Yearworth the fertility unit held itself out as able to deploy "special skill" in preserving sperm; in Yearworth the defendants admitted a breach of its duty of care in tort and, by analogy, on a hypothetical basis, a breach of duty of care in bailment; and in Yearworth the defendants made and broke a particular promise to store the sperm at minus 196o C. It was the breach of the particular promise to store the sperm at minus 196o C that persuaded the Court of Appeal that any damages should be "more akin to that referable to breach of contract rather than to tort" so that damages might properly include compensation for "mental distress" [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at §§ 6, 13, 25, 46―50, 56―59 per Lord Judge CJ giving the judgment of the court].
[20] The pursuer submits:
"It would be extraordinary and unfortunate if a man whose sperm was stored in Scotland had no right of action, whereas his brother in England did have the right in terms of Yearworth, all in the context of a United Kingdom-wide statute [the Human Fertility and Embryology Act 1990]."
As the defenders say, there are bound to be hard cases. There are hard cases under the 1990 Act as well. Evans was a hard case for the plaintiff which would have gone the other way in some jurisdictions [Evans v United Kingdom [2007] 1 FLR 1990].
Circumstances of cryostorage in the present case
[21] The pursuer in the present case avers that his samples were delivered on 18 March, 3 March and 1 April 1992. The pursuer does not further specify the circumstances of the constitution of the claimed contract of deposit at that time. No documentation relating to the storage of the pursuer's sperm in 1992 has been produced. The pursuer has tendered a pro forma relating to another patient dated 12 February 1993 and an information leaflet which may have been issued to patients around that time. Both documents have the hospital's telephone number as 031 332 2525. The "031" area code was superseded by the "0131" area code on 16 April 1995. The pro forma is headed "Department of Surgery (Urology) - Infertility Clinic", is signed on behalf of Mr T B Hargreave, consultant urological surgeon, and is addressed to the patient's general practitioner. It informs the general practitioner that his patient has been referred to the clinic by another hospital for "long term sperm storage" and continues:
"This service is provided by our laboratory for patients in Scotland and is directly financed by the Scottish Home and Health Department. The service is designed for young men who are about to have cancer chemotherapy which is likely to sterilise... I enclose a copy of an explanatory leaflet I have given to your patient."
The information leaflet says nothing about consenting procedures. It assumes that the samples are intended for use by "you and your wife" and that insemination will be carried out in vivo, adding: "This does not hurt in any way and indeed some couples can learn to do the technique themselves." The leaflet says nothing about fertilisation in vitro.
[22] The long term storage service is stated to be free. It is explained that the sperm are stored in vials in liquid nitrogen. Answering the question "What if something goes wrong with the storage?" the leaflet states:
"We cannot guarantee to keep samples stored in the event of strike action interrupting our supplies of liquid nitrogen or other civil disturbance. However we will always do our best to keep samples safely."
As to the duration of storage the leaflet states:
"We usually undertake to store samples for five years. At the end of that time we contact you to ask whether you wish the samples kept for longer. Sometimes we are unable to contact one of our patients at the end of the five year period and if this happens we will then dispose of the stored samples..."
Words that might be open to interpretation (had the document been agreed or incorporated in the pleadings as part of the pursuer's case) include "service", "undertake", "patients" and "wishes". Whether or not the document plays a direct part in the pursuer's case, it is not disputed that it is the defenders' information leaflet.
[23] The pursuer avers that: "Continued storage was subject to the pursuer's consent." The pursuer makes the following averment about a communication from the defenders on an unspecified date:
"Mr Hargreave, a consultant urological surgeon, wrote to the pursuer on behalf of the defenders. He confirmed that they held three sperm samples in their long term storage bank. He informed the pursuer that the defenders intended to store the samples until 2024 but that they would enquire every five years as to whether he wished the samples to remain in continued storage. The pursuer was informed the defenders would not normally destroy sperm samples without his permission."
The significance of "2024" is not explained: but I note that the pursuer was born in 1969 and will be 55 in 2024, the age of 55 being effectively the statutory age limit for gamete retention in terms of the 1990 Act s. 14(3) as amended by the Human Fertilisation and Embryology (Statutory Storage Period) Regulations 1991/1540. The letter referred to by the pursuer has not been produced. The defenders refer to a letter of 21 April 1994, which may be the same document.
[24] The pursuer was contacted in about March 1996. The defenders sent him an undated letter signed on behalf of Mr Hargreave enclosing the "legal sperm storage form" headed "HFEA(91)6 FORM OF CONSENT TO STORAGE AND USE OF SPERM AND EMBRYOS", which the pursuer completed by ticking yes/no choice boxes as follows:
"1. USE
a. I hereby consent to the use of my sperm for the following purposes
i. in treating any partner of mine YES
ii. in treating others NO
iii. in any project of research NO
b. I hereby consent to the use of my sperm to fertilise egg(s) in vitro and to the use of embryo(s) developed from these egg(s) for the following purposes
i. in treatment of myself together with my partner YES [here the full name of the pursuer's wife was inserted in the space provided]
ii. in treating others NO
iii. in any project of research NO
STORAGE
I hereby consent to the storage of my sperm or embryo(s) developed in vitro from egg(s) fertilised with my sperm:
a. Storage period in years, Sperm Maximum [10 years] YES, Embryos Maximum [5 years] YES
b. If I die or become mentally incapacitated my sperm or the embryo(s) developed in vitro from egg(s) fertilised with my sperm should:
i. be allowed to perish, Sperm NO, Embryos NO
ii. continue in storage for purposes given in 1a. (for sperm) and 1b. (for embryos), Sperm YES, Embryos, YES
iii. continue in storage for other purposes, Sperm NO, Embryos NO"
The pursuer signed the form on 21 March 1996 and returned it. The defenders acknowledged receipt. A copy of the completed form is produced.
Is there a claim for breach of statutory duty?
[25] The defenders submit that there is no need to strive for a remedy for breach of duty at common law, as the Court of Appeal did in Yearworth, because the pursuer has a remedy for breach of statutory duty or, rather, had a remedy which, unfortunately for the pursuer, the defenders say, is now time‑barred and extinguished by prescription. This statutory duty argument was not advanced in Yearworth.
[26] The defenders argue that the 1990 Act s. 17(1)(c) provides the basis of a remedy by way of breach of statutory duty. The provision enacts:
"17 The person responsible
(1) It shall be the duty of the individual under whose supervision the activities authorised by a licence are carried on (referred to in this Act as the "person responsible") to secure-
[...]
(c) that proper arrangements are made for the keeping of gametes and embryos ... "
The defenders submit that the provision is conceived in favour of individuals who have provided bio-matter for storage; and that failure to discharge the duty gives rise to civil liability. There is textbook support for this interpretation, so it is said [A Grubb (ed), I Kennedy and A Grubb, Medical Law, 3rd edn (London, 2000), 1308]:
"In our view, the 1990 Act is so emphatic in its commitment to the wishes of the gamete-providers that a court might well take the view that a private right of action should arise. The provisions of Sch 3 clearly contemplate gamete-providers as the beneficiaries of the obligations imposed upon licence-holders. The argument gains force from the fact that otherwise the aggrieved party might not have a remedy in law for breach of the terms of this Act."
[27] Since the text book was written, the 1990 Act has been amended by the Human Fertilisation and Embryology Act 2008 ["the 2008 Act"] which, by section 44, inserts a new section 1A in the Congenital Disabilities (Civil Liability) Act 1976. The effect of section 1A is to give a right of action to disabled children for congenital disabilities resulting from "any act or omission in the course of... [inter alia] the keeping... outside the body of... the gametes used to bring about creation of the embryo" [emphasis added]. The right of action is conferred where the defendant would have been liable in tort to the parent or parents;
"and it is no answer that there could not have been such liability because the parent or parents concerned suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability."
The defenders submit that the new provision recognises the potential civil liability to all affected persons of "the responsible person", whose duty it is to secure that "proper arrangements are made for the keeping of gametes" [emphasis added]. I have been offered no judicial or academic commentary on this wording though I do notice that it is taken from the original section 1, in which setting it is more immediately intelligible. The 1976 Act does not apply to Scotland for the reason that the Scottish Law Commission, almost 40 years ago, took the view that Scots law already accorded a right of action to live born children injured in the womb [Hansard HL Deb, 27 May 1976, vol 371, cols 356-87; Scottish Law Commission, Report on Liability for Antenatal Injury, Scot Law Com No 30, Cmnd 5371 (HMSO Edinburgh, 1973), §§ 8―21].
[28] I reject the defenders' argument that the 1990 Act creates a private right of action against, and imposes civil liability on "responsible persons" for breach of statutory duty. Kennedy and Grubb may be correct that any handling of gametes and embryos except in accordance with the informed consent provisions of Schedule 3 could give rise to civil liability: but that is a different matter; and it does not involve "responsible persons" as such. There is nothing in the 1990 Act which suggests an intention to impose unqualified, "non‑delegable" liability on individual clinicians such as Mr T B Hargreave, consultant urological surgeon, who appears to have been the "responsible person" in this case, for breach of section 17 obligations. Section 17 of the Act is part of the bundle of sections headed: "Grant, revocation and suspension of licences." I read section 17 as imposing responsibility for activities carried out under the licence as part of the regulatory scheme, the sanction for non‑compliance being suspension or revocation of the licence. Section 44 of the 2008 Act contains no reference to "responsible persons" or breaches of obligations imposed on "responsible persons" by the 1990 Act. For completeness defenders' counsel are unable to tell me what is the nature of the interest which gives gamete‑providers title or standing to sue on the statute, whether it is a matter of infringement of a property right or a matter of personal injury or some other interest such as being a gamete‑provider; and the defenders' pleadings contain not a hint that the case should have been directed against their consultant urologist.
The pursuer's property theory
[29] As stated above, the pursuer's case is founded primarily on the proposition, following Yearworth, that the sperm samples are his property. The pursuer submits that "the key to the analysis" is the division of the Roman law into the law of persons and the law of property. (This alludes to the texts which tell us: "The whole of the law... relates either to persons, or to things, or to actions.") Senior counsel points to the pursuer's averment: "The sperm was the property of the pursuer." Corporeal moveable property in Scots law includes, according to Bell's Principles "all things which, being themselves capable of motion or of being moved, may be perceived by the senses ― seen, touched, taken possession of..." According to Ms O'Brien QC, senior counsel for the pursuer, sperm is perceptible by four of the five senses. At the next stage of the argument "the key to the analysis" is said to be "possession". The institutional writers evidence the reception into Scots law of the Roman law doctrine of occupatio ― the constitution of property by original possession. Stair says: "The first and most simple way of constitution of property, is by the possession of things..." In Bell's Principles we find:
"The original modes of acquisition depend either on the first effectual apprehension of the subject having no owner; or on a natural, accidental, or intentional change, by which a new subject of property is produced... As to things not hitherto appropriated, the general rule is, that they belong to the occupant; quod nullius est, fit occupantis. Shells, pearls, pebbles, or precious stones on the sea shore; animals ferae naturae, beasts, birds, fish,― fall under this rule."
The matter is elaborated by junior counsel for the pursuer by reference to Shetlanders capturing small whales by driving them into a bay and slaughtering them there. By depositing his ejaculate in a receptacle, then handing it over for storage, the pursuer was clearly taking possession of his sperm (and constituting it as his property by occupatio), or so it is said. There is text book support for the application of occupatio to separated body parts. The pursuer quotes Erskine's Institute to support the proposition that the statutory restrictions on the use of stored sperm and the limitations on use which are part of the supposed contract of deposit are perfectly compatible with a right of property:
"All rights which affect any subject are called by the Romans iura in re, and by us, real rights; and the sovereign or primary right is that of property; which is the right of using and disposing of a subject as our own, except insofar as we are restrained by law or paction..."
These propositions, together with the Yearworth analysis, are the essentials of the pursuer's property theory [J More (ed), J Dalrymple, Viscount Stair, The Institutions of the Law of Scotland, a new edition (Edinburgh, 1832), vol 1, II. i. 29 ― the pursuer gives the citation "II. i. 33", only part of which has been copied for my use: the full sentence in section 29 does not, I think, support the pursuer's argument; W Guthrie (ed), G Bell, Principles of the Law of Scotland, 10th edn, (Edinburgh, 1899), §§ 1285―1289; The Laws of Scotland: Stair Memorial Encyclopedia (Edinburgh, 1993) vol 18, part I: General Law, §§ 3, 5, 11, 540―544; M Earle and N Whitty, "Medical Law" in The Laws of Scotland: Stair Memorial Encyclopedia, Reissue (Edinburgh, 2006), § 346; J Nicholson (ed), J Erskine, An Institute of the Law of Scotland (Edinburgh, 1871), II. i. 1; Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at §§ 25-29, 45 per Lord Judge CJ giving the judgment of the court].
The defenders' no‑property theory
[30] The defenders' no‑property theory also goes back to the Romans. In Yearworth Lord Judge CJ began the discussion by quoting a passage from the Digest of Justinian, nodding in the direction of its deployment to such effect by Lord Rodger in Bentham five years earlier. "Dominus membrorum suorum nemo videtur: no‑one is to be regarded as the owner of his own limbs, says Ulpian in D.9.2.13. pr." [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 30 per Lord Judge CJ giving the judgment of the court; Regina v Bentham [2005] 1 WLR 1057 at § 14 per Lord Rodger of Earlsferry].
[31] The defenders tell me that prior to the decision in Yearworth, subject to one closely defined exception, no United Kingdom court had ever held that human bio‑matter, living or dead, could be owned. The exception is where skill and labour have been applied to alter the quality of the thing [Dobson v North Tyneside Health Authority [1997] 2 WLR 596 and Reg v Kelly [1999] QB 621] applying Doodeward v Spence (1908) 6 CLR 406]. Legislative policy is generally consistent with the no-property principle. The Human Tissue (Scotland) Act 2006 s. 20 criminalises commercial dealing in body parts for transplantation, as does the Human Tissue Act 2004 s. 32 while preserving the common law "application of human skill" exception. Gametes are excluded from the tissue enactments for the reason that they are controlled by separate legislation. The defenders argue that Parliament has had opportunities to address the property issue, to innovate on the common law and to permit ownership but has not done so: see the current human tissue statutes and the Human Tissue Act 1961, Human Organ Transplants Act 1989, Human Fertilisation and Embryology Act 1990, Human Fertilisation and Embryology Act 2008 and subordinate legislation. The Evans case at first instance provides a helpful summary of the background to the 1990 Act. The relief sought by Ms Evans in respect of a claimed proprietary/ possessory interest in the embryos in terms of ECHR protocol 1, article 1 was not granted [Evans v Amicus Healthcare and Ors [2003] 4 All ER 903 at §§ 4(e) 16, 17].
[32] The relevant legislation at all material times was the 1990 Act, now amended by the 2008 Act. The defenders submit that the provisions and effect of the 1990 Act supported by Human Fertilisation and Embryology Authority [HFEA] Code of Practice 2001 are incompatible with the normal indiciae of ownership: it cannot be said that the pursuer has "the right of using and disposing of" the samples of his own sperm or that he has "the right of use, enjoyment and abuse" of the samples. It is illusory to suggest that the samples are owned by the pursuer or are his property. In this context it is futile to ask whether living tissue is capable of being owned at common law: the 1990 Act prevents sperm submitted for storage from being owned and treated as property. In this connection the defenders refer particularly to the 1990 Act ss. 4(1), 12(1)(e), 13(5), 14, 16, 17 (a)―(e), 23, 24, schedule 2 and schedule 3; and to the HFEA Code of Practice (2001) paragraphs 9.21―9.27; 10.2, 10.3, 10.15.
[33] Yearworth, the defenders say, expressly elides the concepts of legal ownership and possessory title. According to the defenders, the Yearworth approach is an innovation on the common law or, as the Court of Appeal put it, a "re‑analysis" of the common law's traditional approach. The Court of Appeal believed the "easiest approach" would have been to apply the Doodeward-type "skill and labour" exception, equating freezing with the application of skill and labour. The defenders dispute this on two grounds: first, they submit, the purpose of freezing is not to change the attributes of the thing but to preserve its attributes; secondly, they say, the "skill and labour" approach in the hands of the Court of Appeal begs the question of ownership since, as Doodeward, Kelly and Dobson make clear, changing the attributes of a thing by the application of skill and labour vests ownership of the new, different thing in the craftsman or specificator, that is ownership transfers on this hypothesis to the person who does the freezing [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 45(c) per Lord Judge CJ giving the judgment of the court].
[34] The defenders question how much support Professor Honoré's article on ownership, cited at paragraph 28 of Yearworth, actually gives to the Court of Appeal's property thesis [A M Honoré, "Ownership", in A G Guest (ed), Oxford Essays in Jurisprudence (1961) ch v, 107]. According to the defenders, Professor Honoré's article gives the impression that there cannot be ownership without most if not all of the incidents of ownership. The pursuer in contrast has none of Professor Honoré's incidents of ownership, or at least none in an unqualified way. Even without the intervention of the 1990 Act it is difficult to see what incidents he enjoys. The Court of Appeal avoided quoting the passages about body parts at pages 129 and 130 of the article. The passage at page 129, as quoted in Yearworth at the first instance, is as follows [this is also how the text is quoted in B Björkman and S O Hanson, "Bodily rights and property rights", J Med Ethics, 2006 April; 32(4): 209-214: but the photocopy - of the 1961 text in the Advocates Library apparently - produced to me is different]:
"In other cases again, we speak not of having a thing but a right in or to something. Thus, a person does not either own or have his body or liberty, though perhaps he owns dead parts of his body such as his hair and nails. In general he has, instead, a right to bodily security or liberty, and a right to determine how parts of his body, such as his kidneys, are to be used during his lifetime if he chooses to forego their use or, being dead, no longer has use for them. Here the analogy with the ownership of a thing is tenuous. These rights are either inalienable or can be dealt with only by something in the nature of a gift."
Both texts include the key words, in relation to the subject's use of his or her own body parts: "Here the analogy with the ownership of a thing is tenuous." These key words were not quoted in Yearworth. The only one of Professor Honoré's eleven incidents of ownership founded on by the Court of Appeal, say the defenders, is "the right to use"; and that incident is severely circumscribed [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 28 per Lord Judge CJ giving the judgment of the Court; Yearworth & Ors v North Bristol NHS Trust, 12 March 2008, WL 5044430 at §§ 61―63].
[35] The Court of Appeal noticed two Californian decisions, Moore and Hecht. The Court of Appeal apparently derived much assistance from Hecht; and Hecht is founded on by the pursuer in the present case. The defenders in the present case submit that the Californian decisions have to be treated with caution for the reason that the cases were decided against a different common law and statutory background. In Moore a clinician and a researcher employed by the university medical centre had patented a cell line established from bio-matter obtained, the plaintiff alleged, without his informed consent. The Supreme Court of California, by a majority, dismissed the action insofar as founded on conversion of personal property and allowed the action to proceed insofar as based on breach of fiduciary duty and lack of informed consent holding that
"the laws governing such things as human tissues, transplantable organs, blood, foetuses, pituitary glands, corneal tissue and dead bodies deal with human biological materials as objects sui generis rather than abandoning them to the general law of personal property."
The reference to "the laws governing such things" is a reference to various statutory provisions. The defenders in the present case submit that, similarly, in the United Kingdom, gametes are sui generis, have been subject to comprehensive statutory provision and are not subject to the general law. In Hecht a probate court, at the instance of the adult children of the deceased's former marriage, William Kane junior and Katharine Kane, granted an order for destruction of frozen sperm samples intended by the deceased to go to his "girlfriend" Deborah Hecht. On appeal in 1993 the California Court of Appeal, Second District, decided that the deceased's interest in his stored sperm fell within "the broad definition of property" in the California Probate Code s. 62: accordingly the California Court of Appeal vacated the order for destruction and remanded to the probate court to decide the question of testamentary validity [Moore v Regents of University of California, 51 Cal 3d 120; 793 P 2d 479; 271 Cal Rptr 146; Hecht v Superior Court, 16 Cal App 4th 836; 20 Cal Rptr 2d 275].
Discussion: property, dispositional control and sui generis
[36] At the time of the hearing I did not understand the significance of the pursuer's submission about the mode of production of the pursuer's samples. I did not understand why pursuer's junior counsel insisted that the property issue was "fact sensitive"; and that allowing the evidence to be led would enable the court to appreciate how the sperm samples had been produced. I guessed that the production process involved masturbation and, frankly, I thought the submission ridiculous. As I now understand it, the property theory advanced in this case does actually depend on the gamete‑provider "capturing" his own sperm: on this basis the particular way in which the sperm samples were produced is an essential fact. Essential facts ought to be set out in the pleadings. The pursuer's pleadings say nothing about how the samples were produced. All the pleadings say is that the samples were delivered for storage.
[37] I cannot be persuaded that a theory which, as I now understand it, depends on the mode of production of the sperm samples is a good one. Ideally, I should have thought, there ought to be symmetry in the legal treatment of male and female gametes: but the occupatio argument, as presented, has to be stretched too far if it is to fit the harvesting and storage of female ova. Maybe the clinician in such a case is to be characterised as an agent effecting occupatio on behalf of the patient. On the other hand both parties seem to agree that there is no contract in relation to the provision of treatment in terms of the National Health Service (Scotland) Act 1978 ["the 1978 Act"] so that, presumably, there is no scope for a contract of agency either. Pursuer's senior counsel recognises this difficulty and simply asks me to confine my decision, expressly, to male gametes: but what about sperm harvesting or sperm retrieval, of which the Blood case is an example?
[38] I understand that the mode of production, called electro-ejaculation in Blood, involves the insertion of an electric probe into the rectum. Shocks are administered, increasing in strength until ejaculation occurs. This may result in retrograde ejaculation, that is, sperm being discharged into the subject's bladder, where it is collected via a catheter. The similar case of L, we are told, also involved orchidectomy, that is surgical castration, authorised by court order. To whom does the sperm belong when these techniques are used; and is it correct to postulate only permanently or terminally comatose, dying subjects and dead subjects. The answer to the latter question is "no" since the technique of electro-ejaculation is available for paraplegic patients. What happens to ownership if the patient recovers consciousness, say, or ceases to be paralysed? The ownership‑by‑original-possession argument plays no part in the Yearworth reasoning; and I suspect that pursuer's counsel, junior and senior, misunderstand the minimalist Yearworth property theory, possibly because too anxious to address the criticism made by the defenders [R v Human Fertilisation and Embryology Authority Ex parte Blood [1999] Fam 151 at §§ 2 and 29; L v The Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam) (03 October 2008) at § 19; Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 37 per Lord Judge CJ giving the judgment of the court].
[39] Ulpian's principle that no one should be regarded as owning his or her own body or body parts is capable of being misunderstood. The principle does not mean ― as Yearworth might suggest to the unwary ― that living human bodies cannot be owned. On the contrary, as Ulpian emphasises, while the free man has no action under the property-damage provisions of lex Aquilia for injury to his own body he does have a remedy for injury to the slave who is his property; the non‑ownership principle was not so entrenched that it prevented the praetor (or an interpolator) from giving an action by analogy, actio utilis, to the injured free man; and there were non‑aquilian remedies or sanctions for the mutilated limbs and broken bones of free men. The distinctions between free and slave, person and property, for these purposes, were superseded in the Civil law. In Innes we find counsel pleading lex Aquilia to support the claims of the unfortunate tenant farmer who fell into an unfenced excavation designed to accommodate ― rich irony given Edinburgh's notorious trade in cadavers ― the professor of anatomy's body store. Ultimately the sources, Roman and Civil law sources and native Scots law, merged and solatium came to be recognised as the head of damages for pain and suffering arising from bodily injury as well as for hurt feelings and other non‑patrimonial losses [D McKenzie and R Evans‑Jones, "The Development of Remedies for Personal Injury and Death" in The Civil Law Tradition in Scotland (Stair Society, Edinburgh, 1995), 277; Innes v Magistrates of Edinburgh and Ors 1798 M 13189; ALSP, Faculty Collection, 1797―1798, no 60; D.9.2.29.7; Allan v McLeish 1819 2 Murray's Jury Court Reports 158; D Walker, The Law of Delict in Scotland, 2 edn rev (Edinburgh, 1981), 23; J Blackie, "Unity in Diversity: The History of Personality Rights in Scots Law", in N Whitty and R Zimmermann (eds), Rights of Personality in Scots Law: a Comparative Perspective (Dundee, 2009), ch 2].
[40] Paradoxically, one anxiety attaching to the treatment of body parts as property is that it will take us full circle back to Ulpian's frame of reference, back to an acceptance that bodies can be commodities, back, in other words, to slavery. Another anxiety is about the commodification of genes and genotypes: in Moore the California Supreme Court denied the conversion remedy partly on the ground that extending property claims to human bio‑matter would harm medical research. On the other hand, of course, propertising genetic discoveries for a period by patenting is an incentive to innovation [Moore v Regents of University of California, 51 Cal 3d 120; 793 P 2d 479; 271 Cal Rptr 146; cf. Association for Molecular Pathology v Myriad Genetics Inc, United States Supreme Court, issued 13 July 2013].
[41] At the end of the day senior counsel for the pursuer accepts a number of the defenders' criticisms. She distances herself from the phrase "transferrable right of ownership" used by her junior though continuing to support the existence of a "transferable right of possession"; she accepts that even if gametes are "property", they cannot be transferred mortis causa notwithstanding contrary views expressed in other jurisdictions in Bazley, Edwards and Hecht; and she concedes that the cases of Dewar, Welsh, Rothery, Kelly, Stevens, Herbert and Hecht turn on specialities and, while interesting, do not support the proposition that bio-matter not subject to the application of skill and labour is susceptible of ownership at common law. I was not told whether stored gametes vest in the trustee in bankruptcy, or are arrestable ad fundandam jurisdictionem: but during the discussion of contracts of deposit, junior counsel for the pursuer told me - without explaining why - that gametes have to be excepted from the rule that deposited property is attachable for debt [Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478; Dewar v HM Advocate 1945 JC 5; R v Welsh [1974] RTR 478; R v Rothery [1976] RTR 550; Reg v Kelly [1999] QB 621; Stevens v Yorkhill NHS Trust 2006 SLT 889; commentary on the case of R v Herbert in "'The Rape of the Lock': is it Larceny?", 25 J Crim L 163 (1961)].
[42] Hecht (1993) influenced the Court of Appeal's thinking on the property question in Yearworth and through Yearworth the property theory fed into the Queensland decision in Bazley, then into the New South Wales decision in Edwards and now the Western Australia decision in ex parte C [Re section 22 of the Human Tissue and Transplant Act 1982 (WA) ex parte C [2013] WASC 3]. Hecht (1993) turns out to have been one stage in ― I discover, having checked simply to find out whether the decision noticed in the Court of Appeal of England & Wales had been appealed ― a protracted litigation which took the case to the Second District Appeal Court three times. The after-story is noticed in a British Columbia case JCM v ANA 2012 BCSC 584 (not cited by counsel).
[43] In a sense the Hecht story starts and ends with Parpalaix, the decision of a French court in 1984, the earliest decision that I have seen cited about disposition of stored gametes post mortem. Parpalaix was brought to the notice of the Californian court through an American secondary source, E D Shapiro and B Sonnenblick, "The Widow and the Sperm: the Law of Post‑Mortem Insemination", 1 J Law & Health (1986-87) 229. Thanks to the Judges' Library and the Taylor Law Library, University of Aberdeen, I have a copy of the specific report from which the journal article was drawn. I understand that the Parpalaix facts cannot be repeated since posthumous insemination is now prohibited by French law [TGI Créteil, 1er août 1984 Parpalaix c/ Centre d'étude et de conservation du Sperme [CECOS]: Gaz Pal 1984 (2e sem) 560; le loi 94-654 du 29 juillet 1994].
[44] One thing that the American article makes abundantly clear, expressing the matter in common law parlance, is that the Tribunal de Grande Instance de Créteil firmly and expressly rejected the claim in "bailment" of the widow Corinne Parpalaix. The tribunal refused to accept that stored sperm could be moveable property for the purpose of the articles of the French Civil Code which govern "contracts of deposit":
"Les règles du contrat de dépôt telles qu'elles sont définies par les art. 1915 et s[uivants] C[ode] c[ivil] ne peuvent s'appliquer à la présente espèce qui concerne non pas une chose tombant dans le "commerce" mais une sécrétion contenant le germe de la vie et destinée à la procréation d'un être humain." [The rules governing contracts of deposit as defined by article 1915 and following of the Civil Code cannot apply in this case which concerns not a commodity [cf. article 1128] but a body fluid which contains the seed of life destined for the creation of a human being.]
A determining argument was that, if deemed to be moveable property, the sperm would descend to the heirs, to be divided among them according to the laws of inheritance without any consideration for the procreative intentions of the deceased. (The tribunal spared itself from addressing the conundrum whether, subject to the Civil Code article 315, the nasciturus might inherit the property responsible for his creation.) The widow won on the basis that the pseudo‑deposit of the sperm involved a presumed stipulation that the sperm would be returned to the provider or to her for whom it was intended [à celle à qui le sperme était destiné]. As later happened in Blood, where reference was made to the Book of Common Prayer 1662, importance was attached to the fact of marriage, and to the traditional primary purpose of marriage, namely the procreation of children. M and Mme Parpalaix married two days before his death.
[45] The mischief foreseen by the tribunal of Créteil came to pass in California. By virtue of the decision in Hecht (1993) the probate judge on remand ruled that the fifteen vials of cryostored sperm should be distributed as residual "assets" in terms of the 20:40:40 scheme of arrangement entered into by the girlfriend and the two children to settle the will contest, three vials to the girlfriend and twelve to the children. When the first two attempts at impregnation failed, the girlfriend appealed. In Hecht (1996) the justices of the California Court of Appeal, Second District, qualified their property theory, this time putting the word "property" in inverted commas and holding:
"to the extent that this sperm is 'property' it is only 'property' for [the girlfriend]. As such it is not an 'asset' of the estate subject to allocation, in whole or in part, to any other person whether through agreement or otherwise."
Even the girlfriend could not give, sell or allow the use of the sperm by others, so that dispositional control is exercisable only once, that is at the instance of the provider. The justices returned for guidance to Parpalaix, stating, with approval, that: "This fundamental right [to procreate or not to procreate] must be jealously protected, and is not to be subjected to the rules of contracts". The development of the thinking in Hecht has been recognised in the British Columbia Supreme Court case of JCM [Hecht v The Superior Court of Los Angeles County, 50 Cal App 4th 1289 (1996), ordered not to be published in the Official Reports by the Supreme Court of California on 15 January 1997: see 1997 Cal LEXIS 131; JCM v ANA 2012 BCSC 584].
[46] Ultimately, the theory of Parpalaix and Hecht seems to be that, in the circumstances of those cases, the "right" of the provider in his stored sperm is a highly circumscribed, non‑transferrable right of "dispositional control" or "dispositional liberty". The wrong done according to Yearworth was the "preclusion" by the health authority of the pursuer's "right to use" his sperm for procreation. In reaching its conclusion on "ownership" in Yearworth the Court of Appeal said:
"... we are fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the [hospital] trust's breach of duty, namely preclusion of its future use."
Accordingly, the defenders are correct in saying that Yearworth derives a property remedy from the "right to use", which is only one of Professor Honoré's list of eleven indiciae of ownership; and the pursuer is mistaken in thinking, apparently, that he has to demonstrate ownership in a global sense to be eligible for a Yearworth‑type remedy.
[47] Is it accurate to say that the defendants' breach of duty "precluded the use by the plaintiffs of their sperm"? Clearly not, since the problem is not that damaged sperm cannot be used: the problem is that, when used, damaged sperm has reduced procreative efficacy. Whether the Yearworth solution is anything more than a semantic trick of the light which could apply equally where people lose "the use" of "their" limbs is a matter for debate; saying that six men have a "right to use" their sperm does not actually tell us whether the "right" is a property right or a personality right; and, supposing "the right to use" gametes is somehow different from "using" other parts and products of the body, the broader question remains whether it is doctrinally correct, or indeed a useful exercise, to classify stored sperm as "property", even in the minimalist, Yearworth sense.
[48] Is it a convenient fiction for the pursuer to say that the pursuer's right of property is, to use Erskine's words, "restrained by law or paction"? On an alternative view, the statutory regime masks the weakness of the property argument. The value of Parpalaix and Hecht (1996) is that they offer glimpses of how the law might regard stored sperm in the absence of a regulatory overlay; and a possible conclusion is that the postulated property right of gamete-providers is so attenuated that it is a distortion to describe it as a right of property at all. I also wonder whether, if stored gametes are really the property of the gamete‑provider, in some ample sense, it could possibly be ECHR compliant, thinking of protocol 1, article 1, to restrict the owner's rights so that virtually nothing is left of them [J Nicholson (ed), J Erskine, An Institute of the Law of Scotland (Edinburgh, 1871), II. i. 1; D Carey Miller, Corporeal Moveables in Scots Law, 2nd edn (Edinburgh, 2005), § 1.12; cf Yearworth & Ors v North Bristol NHS Trust, 12 March 2008, WL 5044430 at §§ 151―152].
[49] Possessory remedies, interdict and delivery, are available for corpses and bio‑matter separated from the body: but that fact of itself does not make the objects of the remedies property; nor does the fact that for certain statutory purposes bio-matter is to be treated as a "product". I do not say that bio-matter cannot be property. The British Columbia Supreme Court case of JCM illustrates a situation in which, on the arguments presented, I can see no private law objection to treating stored sperm as property. The case is about a female same‑sex couple who separated from a "spousal relationship" inadvertently omitting to include thirteen cryostored, anonymous‑donor sperm straws in their separation agreement. The sperm had been a joint purchase, costing the parties approximately C$250 per straw. JCM and ANA had impregnated themselves with some of the sperm; and a child was born to each of them. JCM started a new spousal relationship with TL. TL wanted to have a child "with" JCM using the remaining sperm straws so that "their" child would be biologically related to "the children of JCM's relationship with ANA". ANA wanted to have the sperm straws destroyed. The Honourable Madam Justice Russell held that the sperm straws were property and ruled:
"I find that the remaining 13 gametes should be divided between the parties. Assuming it is not possible, or that it is impractical, to divide one sperm straw in half, I award seven sperm straws to the claimant, J.C.M., and six sperm straws to the respondent, A.N.A. J.C.M. will pay A.N.A. $125 for the extra one-half straw she is receiving. Should A.N.A. wish to sell her share of the gametes to J.C.M. that will be her prerogative. She may dispose of them as she wishes."
The question is, if stored gametes have to be labelled in terms of traditional categories, where should the line ― effectively the line of separation from the body ― be drawn between persons and property? [C v Advocate General for Scotland 2012 SLT 103; Dewar v HM Advocate 1945 JC 5 at 14 per Lord Moncrieff; Stevens v Yorkhill NHS Trust 2006 SLT 889 at §§ 59-61; A v National Blood Authority [2001] 3 All ER 289; JCM v ANA 2012 BCSC 584].
[50] An interesting question was posed by Lady Justice Arden in Evans:
"Another approach might be that the father has some rights of property in his genetic material. But the question posed by this case is, why should he have any right of property in this regard since he would not have had any right of property if sexual intercourse had taken place in the normal course of events?"
Arguably separation from the body takes place not on ejaculation or harvesting but on renunciation by the gamete‑provider of his or her reproductive interest by simple abandonment, by sale or by donation and, if not previously, on death, if no continuing reproductive intention can be inferred. Senior counsel for the pursuer submits, I suspect correctly, that where gametes stored for research are damaged by third party negligence, the cryostorers must have a property‑damage remedy in delict, if not in contract, for any loss: but does this not serve to highlight the limitations of allowing a property‑damage remedy to gamete-providers claiming for mental injury? On the Yearworth analysis the remedy is guaranteed to work only where the action lies against the cryostorers qua bailees [Evans v Amicus Healthcare Ltd & Ors [2004] 2 FLR 766 at § 88 per Arden LJ].
[51] What happens when the cryostore malfunction is caused, as senior counsel figures, by careless outside contractors ― a possibility actually hinted at by the defenders' pleadings in the present case ― without fault on the part of the bailees? Yearworth left somewhat undecided the question whether tortious property damage to stored gametes can found a claim for mental injury. A more effective solution if the object is compensation - and compensation seems to have been the object in Yearworth ― might well be the "functional unity" theory of personal injury outlined above. If the theory offers a satisfactory explanation in the situation described by the defenders' information leaflet, namely where couples intend "to do the technique themselves", it may be that there is no serious obstacle to extending its application to situations where the technological input is greater. If gamete‑providers are the primary victims of cryostore malfunction, the theory offers the possibility of accommodating secondary-victim claims, claims for specified gamete-receivers like Mrs Holdich in this case.
[52] Neither the property‑bailment theory nor the personal-injury theory, as presently understood by the courts, seems to offer a remedy for gamete‑receivers like Mme Parpalaix and Ms Hecht should there be damage to the sperm after the death of the provider. Is there something to be said for the defenders' submission that stored gametes are sui generis? The pursuer also argues, in an alternative submission, that if stored gametes are not property they are sui generis. These submissions echo the words used by the Archbishop of York, the Most Revd Dr John Habgood, commenting on the embryo provisions during the passage of the bill which became the 1990 Act [quoted in S Andrews and others (eds), Scottish Current Law Statutes Annotated 1990, (Edinburgh, 1990), vol 3, 37-7]:
"'Conceptus' can bury the idea in the deepest obscurity of the Latin language and I put it forward as a purely neutral term meaning that which is the result of fertilisation up to the time of implantation... One of the difficulties in the debate is that embryology, to coin a phrase, is sui generis. We are constantly trying to apply distinctions which pertain in ordinary life but which do not actually apply in a particular respect. For example, lawyers try to put everything in one of two baskets; it is either a person or a thing. However there are entities which are neither persons nor things..."
"Neither persons nor things" fairly encapsulates, I think, the sui generis submission made, in different ways, by both sides. Is there any need to disambiguate the idea of "his" sperm, or "her" ova or "their" embryos? Accepting the ambiguity permits both personal‑type remedies and property‑type remedies, as appropriate and depending on the situation, without distorting the doctrinal framework. Damage and disputes over control and use are only two of the potential issues. Mistakes happen: the wrong person can end up as the gamete-receiver and embryos can be implanted in the wrong womb. There are succession issues, including, we must not forget, issues about succession to titles of honour and about "perpetuities", and family law issues, if "family" continues to be a meaningful idea. Perhaps we should agree to "resist the almost overwhelming temptation to use established conventional models" [P (Contact), Re [2012] 1 FLR 1068 at §§ 5 and 8]. The issue raised in the present case exists only because of a conjunction of circumstances, namely the possibility of storing gametes and the necessity of combining opposite-sex gametes for human reproduction ― but for how much longer? Senior counsel for the defenders draws my attention to the news report of "a breakthrough in human cloning by turning skin cells into early-stage embryos" [The Independent, 16 May 2013, 6]. I offer a tentative conclusion about the property theory at the end of the following sections which concern the contractual issue.
The statutory framework for cryostorage and the scope for contracting
[53] The pursuer characterises the sperm samples as property not as an end in itself but for the purpose of arguing that the delivery of the samples and their acceptance by the defenders for safekeeping constituted a gratuitous contract of deposit between the parties. The threshold question is about the power of the defenders as a statutory provider of health services to enter into contracts with service users at all. The framework legislation is the National Health Service (Scotland) Act 1978 ["the 1978 Act"]. Prima facie when National Health Service [NHS] providers deliver services to users, they do so in performance of their statutory functions and not on an individual contract basis. My assessment of parties' respective positions is as follows: both sides deny a doctor‑patient relationship, though for different reasons. The pursuer wants it to be understood that cryostorage services are outside the 1978 Act because in that way it is easier to infer the existence of a contract between the pursuer and the defenders and to impose contractual liability for mental injury. The defenders on the other hand wish it to be understood that cryostorage services are a 1978 Act function so that it is easier for them to argue against contractual liability: but the defenders also wish cryostorage to be characterised as something other than a patient‑treatment function in terms of the 1978 Act because, as they see it, where there is no "treatment", there is no "relationship of proximity" and it is easier for them argue against delictual liability for "pure" mental injury.
[54] The pursuer's primary position is that the defenders provide cryostorage services in the exercise of powers given by the Human Fertilisation and Embryology Act 1990. This must be wrong. The 1990 Act is a regulatory measure; the 1990 Act regulates both private providers and statutory providers without distinguishing between them; as enacted the 1990 Act does not mention the NHS at all; as amended by the 2008 Act it mentions the NHS twice, then only in connection with the protection of patient information in England & Wales; and there is nothing in the 1990 Act as enacted or as amended that gives statutory providers the power to provide fertility services or services ancillary to the provision of fertility services ― certainly the pursuer does not point to anything.
[55] The well‑publicised variability of publicly‑funded fertility services from area to area ― some say "inequalities"― hints at a lack of clarity about the statutory basis for provision. I have taken the liberty of looking at official literature on the subject. None of the documents I have looked at gives a clear‑cut answer. The Expert Advisory Group on Infertility Services in Scotland (EAGISS) recorded in its report published in 2000 that: "The NHS Executive and its Scottish counterpart have acknowledged that infertility management represents a healthcare need." It is one thing to say that something "represents a healthcare need" but quite another to say that it is within the statutory remit of NHS Scotland to meet the need at tax‑payer expense. The government's general duty in terms of section 1 of the 1978 Act is
"to promote a health service designed to secure (a) improvement in the physical and mental health of the people of Scotland, and (b) the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services..."
Between the "treatment of illness" and the "improvement of health" you might think that there is probably sufficient territory to accommodate both fertility services, at least in relation to the traditional NHS heterosexual-couple‑based model, and the storage of gametes, even if regarded as a separate activity. It is a question of definition. The non‑exhaustive statutory definition of illness is:
"'Illness' includes mental disorder within the meaning of [since 2003] section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and any injury or disability requiring medical or dental treatment or nursing".
[Evidence and Equity: A National Service Framework for The Care of Infertile Couples in Scotland (1999), 6; National Health Service (Scotland) Act 1978 ss. 1, 2 and 108, definition of "illness"; Mental Health (Care and Treatment) (Scotland) Act 2003 s. 328, definition of "mental disorder"].
[56] An official report in 1993 stated:
"It became clear to the [Working Group of the National Medical Consultative Committee] that, apart from the very real personal and social difficulties and the overwhelming sense of failure, infertility should be regarded as a very real health problem for the affected couple. As such, and in the interests of society as a whole, we have concluded that every involuntarily fertile couple should be entitled... to receive diagnosis and treatment under the general provision of the National Health Service... Infertility is a disorder which merits planned investigation and treatment within the National Health Service."
The report also said:
"Cryopreservation of semen is widely available for men who are undergoing testicular surgery, irradiation or chemotherapy, and should be considered in every case as a matter of good practice."
The National Infertility Group 2013 reported as follows:
"11. Infertility is recognised across much of Europe as a disease state which can be treated by appropriate assisted reproductive technology. The World Health Organization (WHO) defines infertility as: 'Infertility (clinical definition): a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse. 'The WHO defines health as '... a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.' Infertility, accordingly, is a source of diminished health and social well-being."
It follows that cryostorage as a "fertility preservation" strategy, to use current terminology, can, and could, in 2001, be understood as a treatment or as a service or activity ancillary to treatment [Scottish Office Home and Health Department, Infertility Services in Scotland [Edinburgh HMSO, 1993], foreword, summary, § 109; National Infertility Group Report (Scottish Government, 2013), § 3.1; WHO Revised Glossary on ART [Assisted Reproduction Technology] Terminology 2009, "infertility"; cf. National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012/ 2996, regs 7―9].
[57] It is not entirely helpful that the defenders should have come into court apparently unprepared to offer a clear idea of the statutory basis for their cryostorage activities. In the third speech Mr Stephenson QC, senior counsel for the defenders, submitted that the pursuer was in a therapeutic relationship with the defenders' clinicians in 1992 during the time when he underwent cancer treatment and that he formed a new doctor‑patient relationship in 2001 when he embarked, or attempted to embark on fertility treatment in England with his wife. The pursuer was not in a doctor‑patient relationship during the intervening period although the storage of his sperm by the defenders was "relevant" to his future treatment. Senior counsel proposed that the storage of gametes for fertility preservation should be understood as one of the "other services" referred to in section 36(1)(c) of the 1978 Act:
"36 Accommodation and services.
(1) It shall be the duty of the Secretary of State to provide throughout Scotland, to such extent as he considers necessary to meet all reasonable requirements, accommodation and services of the following descriptions-
(a) hospital accommodation, including accommodation at state hospitals;
(b) premises other than hospitals at which facilities are available for any of the services provided under this Act;
(c) medical, nursing and other services, whether in such accommodation or premises, in the home of the patient or elsewhere."
While my preferred view aligns with Yearworth in thinking, contrary to the submissions on both sides of this case, that gamete cryostorage for cancer patients is ancillary to treatment, and therefore, in Scottish terms, part of the section 1 "general provision", I consider that Mr Stephenson's submission about section 36 is not unreasonable; and in any event his interpretation was not directly contested. I also note that the government is assumed, in terms of a provision not referred to by counsel, namely section 44 of the 1978 Act, to have the power to keep supplies of blood and other substances and parts of human bodies "for the purpose of, or in the course of providing, any service under this Act". I should mention in passing that the pursuer's samples are kept in the haematology unit cryostore.
[58] There is consensus between parties to the extent that the pursuer argues that cryostorage per se has nothing to do with the improving health or preventing, diagnosing and treating illness; and that the storage element can be severed from the fertility treatment element. The pursuer points out that the defenders' cryostorage service was centrally financed; and that the service was available for patients "throughout Scotland" rather than for patients only from the defenders' area. The pursuer submits that general NHS provision for prevention, diagnosis and treatment is entrusted to area health boards like the defenders and that the defenders did not provide the storage service as a health board for their specific area in terms of the legislation. I do not think that these points controvert the defenders' argument. I think ― there is a degree of opacity in the wording ― that the provision of "other services" under section 36(1)(c) of the 1978 Act is not a function which health boards were necessarily bound to exercise for their areas in terms of the legislation [National Health Service (Scotland) Act 1978 ss. 1 and 2; Functions of Health Boards (Scotland) Order 1991/570].
[59] I believe that at the time there were cryostores in three or four regional centres and that not all health boards were able to provide facilities for the long‑term storage of blood, body parts and other substances. I note that since 2008 it has been, expressly, the function of the Common Services Agency of NHS Scotland to
"exercise the functions of the Scottish Ministers under section 44 of the Act to provide supplies of human blood for the purposes of carrying out blood transfusion, or provide material which has come from a human body and consists of, or includes, human cells, and provide related services for the purpose of, or in the course of, providing any service in relation to the health service".
I do not know what the precise arrangements were between the government and the defenders and between the defenders and other statutory health entities in the period 1992 to 2001 for the provision of cryostorage services: but neither party argues that storing gametes was ultra vires of the defenders; and no one has taken the point that it is for the government or the Common Services Agency rather than the defenders as an area health board to answer the pursuer's claim. I conclude, on, I emphasise, the material and arguments presented to me, that the storage of the pursuer's sperm samples was a service provided by the defenders to the pursuer in exercise of the defenders' functions in terms of the National Health Service (Scotland) Act 1978 [National Health Service (Functions of the Common Services Agency) (Scotland) Order 2008/312 reg 2; National Health Service (Scotland) Act 1978 ss. 2(8), 10(8); cf. Goorkani v Tayside Health Board 1991 SLT 94].
[60] Moving then to the pursuer's secondary argument, it is said that the 1978 Act allows parties scope to regulate their relationship by contract. As between clinical personnel and their patients the current orthodoxy is that, as a generality, no contractual relationship exists. However, the possibility of contractual arrangements has been recognised [R Mulherron, "Duties in Contract and Tort" in A Grubb and others (eds), Principles of Medical Law (Oxford, 2011), chap 3, §§ 3.08―3.14; Reynolds v The Health First Medical Group [2000] Lloyd's Rep Med 240; Dow v Tayside University Hospitals NHS Trust 2006 SLT (Sh Ct) 141].
[61] According to the pursuer, the present case can be distinguished from cases where the statutory service provider is left with no choice but to provide the service; and the absence of any need for contractual consideration in Scots law enlarges the opportunities for statutory providers to contract. Health authorities do make contracts daily, for example to settle court cases and to provide inoculation to individuals for foreign travel. The defenders had a choice whether or not to become fertilisation and embryology service providers. The 1996 consent form completed by the pursuer (above) demonstrates that the pursuer had freedom to make stipulations for storage and use. The normal rules of contract apply unless there is conflict with statutory functions. There is no conflict between the common law duty of depositaries to keep the deposited property safe and the duty on licence holders in terms of section 17 of the 1990 Act "to secure... that proper arrangements are made for the keeping of gametes and embryos ..." The pursuer submits that there are clearly gaps in the statutory provisions which have to be filled by the common law and one of the gaps is the legal relationship between gamete‑provider and cryostorer in respect of the deposit and safekeeping of samples [Pfizer Corporation v Ministry of Health [1965] AC 512 at 535E―536C per Lord Reid; Norweb Plc v Dixon (DC) [1995] 1 WLR 636 at 642G―64C per Dyson J; Wylie v Grosset and Another 2011 SLT 609 at § 20].
[62] The defenders submit that the issue of a power to contract was not addressed in Yearworth for the reason that bailment in English law is a non-contractual relationship. The issue does arise in this case because the nearest Scots law equivalent, deposit, is a contract. The suggestion of a contractual relationship implies that the parties were at liberty to decide how the sperm was to be held, used and disposed of whereas, in reality, the position was quite the opposite. The whole exercise was subject to strict control in terms of the 1990 Act and the HFEA code of practice. In any event the known circumstances were such that they did not give rise to a contractual relationship. The services to be provided by the defenders in terms of the 1978 Act are to be provided free of charge except insofar as there is express provision to the contrary. The functions of health boards do not include the power to conclude contracts with individual patients [National Health Service (Scotland) Act 1978 ss. 1 and 2; Functions of Health Boards (Scotland) Order 1991/ 570].
[63] Clearly, say the defenders, health authorities are empowered to enter into contracts for the acquisition of land, goods and services: but the delivery of services is a different matter. Arrangements made by health authorities for the delivery of their services by other health authorities are called "NHS contracts" and it is enacted, notwithstanding the name, that "NHS contracts" must not to be regarded as giving rise to contractual rights and liabilities. The accepted wisdom is that health authorities do not provide services to patients and other service users under contract. The no‑contract theory is based on three principles, the first being the absence of a statutory power to contract; the second being that statutory agencies, such as health boards, which are legally obliged to do something are not free to contract to do that thing; and the third principle being that patients and other service users do not (in general) provide consideration for services received. [National Health Service (Scotland) Act 1978 s. 17A; National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004/115; R Mulherron, "Duties in Contract and Tort" in A Grubb and others (eds), Principles of Medical Law (Oxford, 2011), chap 3, §§ 3.08―3.14].
[64] According to the defenders the cases of Reynolds and Dow do not support the contract theory. In Reynolds Simmons J held that any suggestion that the parties intended to enter into the legal relations requisite to found a contract was negated by the fact that the relationship between the plaintiff and her general practitioners was a statutory one governed by the National Health Service Act 1996. In Dow Sheriff Fletcher held that ordinarily the relationship between a patient and her doctor providing treatment in terms of the National Health Service (Scotland) Act 1978 is non‑contractual; and that where the contrary is asserted for the purpose of suing on breach of contract, a relevant case cannot be instructed without specific averments about the nature and terms of the contract. The consent form in the instant case, so the defenders say, is expressed to be a consent to "treatment" and to storage for the purpose of "treatment" in accordance with the 1990 Act Sch 3. The pursuer's averments, according to the defenders, do not face up to the challenge of deriving an intention to contract outside the public law regime in a situation where both parties were entitled to rely on the regime in delivering and receiving the service. The contractual claim is defective by reason of the fact that there is negligible specification of the circumstances in which the claimed contract was concluded; and there is no specification of the terms on which it was concluded. No intention to contract or to enter into a contractual relationship can be inferred from the only circumstance averred namely the acceptance of the semen for storage [Reynolds v The Health First Medical Group [2000] Lloyd's Rep Med 240; Dow v Tayside University Hospitals NHS Trust 2006 SLT (Sh Ct) 141].
[65] I think that the defenders probably have the better argument on the statutory provisions; and that the parties were not in a contractual relationship, principally because the defenders were delivering a service mandated by the 1978 Act. In oral debate pursuer's senior counsel in fact conceded that if the pursuer did fulfil the medical criteria, the defenders would have been bound to offer him cryostorage of his semen. I do not deny that there are areas in which contracts might well exist between statutory health providers and service users. For example, I should be surprised if health authorities in Scotland were to contest that they are depositaries in a contractual sense for patients' belongings handed to their staff for safekeeping in accordance with protocols.
Was there a contract; and was it a contract of deposit?
[66] Assuming, contrary to the foregoing that there was scope for contracting, did parties actually contract and, if so, what kind of contract did they make? The pursuer avers that the continued storage of his sperm samples after 21 March 1996 was subject to his consent; and he makes the terms of the HFEA consent form (above) part of his written case. The pursuer suggests that the consenting procedure badges the activity as a contractual one. Quite the contrary to my mind: the consenting procedure, more than anything else, if that is all there is by way of an exchange of words or wording, undermines the contract‑of‑deposit theory. The pursuer's consent expresses the idea that he had a right not to have his sperm stored; and the consent is not easily reconcilable with the idea that the defenders had a contractual obligation to store his sperm, as they would if they were contractual depositaries. The pursuer consented to the storage of his sperm for a certain period. A practical correlative of this time‑limited consent is that when the consent expires, the sperm must be allowed to perish, which is exactly what happens under the HFEA scheme.
[67] Without going too deeply into the matter the HFEA scheme could well represent, predominantly if not exclusively, the idea of the gamete-provider's "right" to procreative autonomy as opposed to an idea of property and contract; and it is plausible that the scheme expresses and respects the primary, underlying reality which exists, as in Parpalaix and Hecht (1996), independently of the HFEA scheme. While it is true, as the pursuer submits, that the absence of payment means that the arrangement was not a contract for custody [locatio custodiae], it does not follow that it must therefore have been a gratuitous contract of deposit [depositum] as opposed to the delivery of a statutory service: to borrow Lord Reid's words, "any resemblance... is only superficial" [Pfizer Corporation v Ministry of Health [1965] AC 512 at 535E―536C per Lord Reid].
[68] Some deference is due to what the parties thought they were doing. The defenders draw attention to "the surprising conclusion" whereby the Court of Appeal in Yearworth found "without hesitation" that there was bailment by the plaintiffs of their sperm samples to the Southmead fertility unit, something which had never occurred ― with or without hesitation ― to the plaintiffs themselves. Indeed it was the court that prompted the plaintiffs' lawyers to make submissions on bailment. In the present case I understand that the property‑deposit claim did not emerge until after the second Yearworth decision. I think the defenders are right to raise the question of intention to contract. To whom did the pursuer deliver his samples; what did the recipient or recipients say or do that supports the inference of an intention to contract? Did that person or those persons have authority to contract on behalf of the defenders? The pursuer offers to prove nothing at all about the circumstances of the supposed contract.
[69] There is also difficulty with the idea that any contract was one of deposit, correctly so called. What the pursuer contends for is "a real contract of proper deposit", "real" meaning relating to a res or thing, "proper" meaning that the thing itself rather than an equivalent has to be restored. Deposit or depositum, it is said, "is to be distinguished from consensual custody" or locatio custodiae. The first point of distinction ― already noticed ― is that deposit is a gratuitous contract, whereas custody is a contract for reward. Another difference, intuitively, is that the obligation of the depositary is essentially a passive one inferring liability to return the thing entire, whereas the obligation of the custodier may well be in addition an active one, to take reasonable care to "prevent injuries incident to the situation" in which the thing is kept. Some confusion has crept in. Professor McBryde puts the matter as follows:
"To summarise Bell's Principles (4th edn, para. 70), the obligations of the depositary are (1) not to use the subjects of deposit; (2) not to penetrate or disclose the secret of the deposit; (3) to restore the packet, casket etc. precisely as received; and (4) the subjects must be restored uninjured. Bells' editors somewhat confused the topic by mentioning reasonable care and negligence mainly under the influence of English authorities (10th edn, para. 212) but Bell did not do this. To him deposit was a contract of strict liability."
The 4th edition is the last edition published during Professor Bell's lifetime. I did question counsel as to why they were citing Guthrie's (10th edition) of the Principles but I am not sure that I got an answer. At one point I was referred to the treatment of gratuitous deposit (depositum) in the 10th edition while counsel quoted the text of some other, I suspect the 7th, edition [W McBryde, "Contract law ― a solution to delictual problems?", 2012 SLT (News) 45 at 47].
[70] Is there a place for the contract of proper deposit in our law, recognising that it has the characteristics of a primitive arrangement? I think there is: but I would not be convinced that it entails, without additional stipulations, liability for the loss of a thing with a tendency to escape or cause damage, or for the deterioration of a perishable thing, or for the consequences of loss and damage, as argued for by the pursuer in this case. Ignorance of the contents of a package does not sit easily with liability for losses consequent on damage to the contents. Again, the Romans are said to have qualified the liability of the gratuitous depositary, restricting it to cases of dolus or culpa lata. We have largely abandoned the categories of fault. In my view our law should be slow to recognise a contract of deposit arising merely from the fact of delivery and acceptance in relation to anything except uncomplicated, inanimate and imperishable objects, as when Domitius, no capsarius being in attendance, hands his clothes for safekeeping to the bath keeper. Surely it is unreal to suppose that anyone would as a matter of contract voluntarily undertake without payment to look after something that requires to be stored at minus 190o C for years on end with potential liability for the thing itself and consequential losses? In Yearworth at the first instance the learned Judge Griggs envisaged that if there were a storage contract it might well be fenced with exclusion clauses, by which, I think, he also meant limitation clauses including possibly a liquidated damages provision: this is what you find in commercial contracts for sperm cryostorage [Digest of Justinian, D.1.15.3.5 and 16.3.1.8; W Guthrie (ed), G Bell, Principles of the Law of Scotland, 10th edn (Edinburgh, 1899), §§ 210―212; W McBryde, The Law of Contract in Scotland, 3rd edn (Edinburgh, 2007), §§ 9-52―9-59; The Laws of Scotland: Stair Memorial Encyclopedia (Edinburgh, 1993) vol 8, Deposit, §§ 1―3, 13, 14; Yearworth & Ors v North Bristol NHS Trust, 12 March 2008, WL 5044430 at § 166].
[71] The defenders say that the cases cited by the pursuer are not about the constitution and existence of the contract, whatever: they are about prescription, mode of proof, onus of proof and standard of care. In Central Motors the contract for garaging and washing a motor car, taken and damaged by a "bibulous joy rider" employed by the garage, was one of safekeeping for reward (locatio custodiae) or hiring of storage and safe custody (described as locatio operarum but correctly, perhaps, as described in the report, locatio operis faciendi). Taylor is about the non‑return of money; and the issue was as to the onus of proof. Copland is a case in which a parish clerk asked a carter, as a favour, to take some cheques to the bank in a neighbouring town and to bring back the proceeds in money. The carter cashed the cheques and "lost" the money. The defenders submit that, properly analysed, Copland is not, and was not decided as, a case of gratuitous deposit. In Uprichard, where a shotgun was left for repair, the sheriff principal said in terms: "... the present case is not one of gratuitous deposit" [W McBryde, The Law of Contract in Scotland 3rd edn (Edinburgh, 2009), §§ 9-52―9-59; Taylor v Nisbet 1901 4F 79 at 83 per Lord Young, at 87 per Lord Moncrieff; Copland v Brogan 1916 SC 277; Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796; Uprichard v J Dickson & Son Ltd 1981 SLT (Sh Ct) 5 at 7; cf. Sinclair v Juner 1952 SC 35].
[72] According to the defenders, none of these authorities supports the proposition that depositing samples in a sperm bank for non‑restoration to the gamete‑provider can give rise to a contract recognised by law as one of gratuitous deposit. The pursuer argues that the concept of "restoration" is flexible enough to include applying the property to some use at the directions of the depositor. My opinion is that the impossibility of restoration of the thing, were that to be absolutely the case, is not in itself fatal where the thing is to be used or applied to the directions of the depositor. There are circumstances in which cryostored sperm can still be made available if not to the provider at least to the intended recipient for home insemination [HFEA Code of Practice (2009) §§ 15.4, 15.5].
[73] An argument which neither side is eager to make is that, if there be a contract, the contract was one not for storage simpliciter but for storage and use (described as "treatment") combined. Is there another difficulty? As I understand the activities mentioned in the 1990 Act as amended and in the HFEA Code of Practice, and also explained, to some extent, in the case law, sperm is not cryostored in its "raw" state: each "sample" is prepared and re‑packaged in a number of "vials" or "straws". If this be the case ― and evidence might well clarify the point ― it suggests that any contract includes at least an operis faciendi element. In the Central Motors case, cited by the pursuer, the Lord President noticed the different incidents of contracts of deposit, contracts for custody and contracts for labour and, without expressing a concluded opinion, raised the question whether the law had properly recognised the distinctions.
[74] My understanding is as follows. Various types of contract have a safekeeping component. Where the issue is about safekeeping, it is not generally necessary to observe the distinctions between the types of contract. The essential point is that the liability of the contractor for safekeeping is strict. Strict liability is to be differentiated from absolute liability. Strict liability is prima facie liability which admits of an exception, the exception being in this context that the loss or damage is not caused by the fault of the contractor, the onus being on the contractor. I had thought that part of the reason why the pursuer wished to insist on a contract for safekeeping was to put the onus on the defenders to explain how the samples could have been damaged without fault on the part of the defenders. In oral debate senior counsel for the pursuer denied this. Whether necessarily or unnecessarily, the pursuer makes detailed averments of negligence on the defenders' part. Of course, in the present case the issue may be one of risk rather than actual damage. My provisional view is that where there is a breakdown, admitted or proved, of specialist storage facilities involving a risk of damage, the evidential onus in delictual claims readily transfers to the store operators in relation to both absence of fault and absence of damage. An interesting argument, not advanced by the pursuer in this case, is that even if there is no contract between health service providers and service users, the latter are entitled to the benefit of the employees' contractual obligations to their employers to carry out the work with due care [Sinclair v Juner 1952 SC 35; R v Sault Ste Marie [1978] 2 SCR 1299; Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at § 148 per Lord Scott of Foscote].
[75] My conclusion on the pursuer's property‑contract case is as follows. I am not confident that it is bound to fail, although, as it has been presented at this stage, it faces difficulties. I suspect that it could have been put on a simpler footing, namely that any "thing", not being a living person, in relation to which the possessory remedies of delivery and interdict are available, is capable of being the subject matter of a contract for safekeeping. Sperm in a container is such a "thing". This puts the emphasis on the res as an object rather than as property. Even Yearworth, I suspect, without professing knowledge of the law of England & Wales, goes too far in pursuit of the property theory. Yes, I envisage that the pursuer in the present case could insist on delivery of his samples to a licensed treatment provider chosen by himself and his wife; and I envisage that he could invoke the law to prohibit the application of his samples for an unconsented use, were that threatened.
[76] Uncertainty about the precise statutory basis for cryostorage of gametes by the NHS leaves scope for a contractual argument. Consenting to safekeeping is not necessarily inconsistent with contracting for safekeeping, just as consenting to medical treatment need not be inconsistent with contracting for medical treatment, although as the defenders correctly point out the there is a shortage of detail in the pleadings, at this stage, to support the idea of contractual intention. The availability of an analogous remedy in England & Wales must be at least mildly persuasive in relation to the question whether the pursuer's property‑contract case ought to be allowed to proceed to proof. If the delictual case is to go to proof, there is an argument in expediency for allowing the property‑contract case to go to proof too. As will appear from what follows, I take a positive view of the relevancy of the delictual case.
The pursuer's delictual case
[77] My opinion is that the pursuer's delictual claim, that is the case in negligence for damages for mental injury, is relevant for proof or at least not so obviously irrelevant that it cannot be sent for proof before answer. On record the defenders deny that they owed the pursuer a duty at common law to take reasonable care in the storage of his sperm. In oral debate the defenders conceded, and rightly so, that such a duty was incumbent on them. The defenders continue to deny that they had a "duty to take reasonable care to prevent the pursuer suffering psychiatric harm and loss of autonomy."
[78] The pursuer's primary delictual case is for damage to his sperm as property. His secondary case in delict is for damage to the sperm simply as sperm, something sui generis, neither person nor property. The pursuer founds on a number of cases to argue that the primary/secondary victim dichotomy applies to determine the existence or otherwise of a duty relationship between parties who are not in pre‑existing legal proximity; that the parties in the present case were in legal proximity before and during the harmful event by virtue of the provision by the defenders to the pursuer specifically and by name, whether in terms of a contract or under statute, of a cryostorage service for fertility preservation; that, if the primary/secondary victim distinction applies, the pursuer is a primary victim; that, in either event, the duty relationship being admitted, the outstanding liability questions, assuming negligence proved, are about the nature of the pursuer's mental injury, causation, foreseeability and remoteness; and that all outstanding questions are apt for determination once evidence has been heard. The pursuer appears to concede that his claim for distress is relevant only in connection with the contractual claim: but I do not accept that, for the reasons given below [Attia v British Gas Plc [1988] 1QB 304; Page v Smith [1996] AC 155 at 180F―181E, 182B―183C per Lord Browne-Wilkinson, at 184A―F, 187E―G, 188G―190F, 197E―H per Lord Lloyd of Berwick; Barber v Somerset County Council at §§ 3―5, 14―22 per Hale LJ giving the judgment of the Court of Appeal; approved (reversed on another point) [2004] ICR 457 at § 63 per Lord Walker of Gestingthorpe with whom the majority concurred; Scottish Law Commission, Report on Damages for Psychiatric Injury, Scot Law Com No 196 (Edinburgh, 2004), §§ 2.12, 3.5, 3.6; AB & Others v Tameside & Glossop Health Authority & Anor [1997] PNLR 140; Farrell v Avon Health Authority [2001] Lloyd's Rep Med 458; W and Ors v Essex County Council [2001] 2 AC 592; McLoughlin v Grovers (A Firm) otherwise McLoughlin v Jones (CA) [2002] QB 1312; In re Organ Retention Group Litigation [2005] QB 506].
[79] Attia was the sole authority relied on by the Yearworth plaintiffs for the proposition that there can be liability for psychiatric injury arising from negligent damage to property. In the present case Attia is the only authority relied on by the pursuer for the same purpose. Mrs Attia returned home to find her house ablaze. The fire was the fault of the contractors who were installing central heating for her. Her claim was dismissed on a preliminary issue raising the question whether she could recover damages for "nervous shock". The Court of Appeal allowed her appeal and remitted the case for trial holding that subject to proof of causation and foreseeability Mrs Attia could recover damages for psychiatric injury [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at 4B―F, at §§ 55 and 60 per Lord Judge CJ giving the judgment of the court; Attia v British Gas Plc [1988] 1QB 304].
The defenders' challenge to the delictual case
[80] The defenders argue that if the pursuer's property and breach of contract case fails then the claim based on negligence must fail. In all "pure" psychiatric injury cases the primary/secondary victim dichotomy is relevant. Victims have to be placed in one category or another so that it can be known whether the secondary‑victim control mechanisms come into play. The pursuer does not satisfy the criteria for secondary-victim liability. According to the pursuer's averments the cryostore malfunction took place between 5 and 8 July 2001; by letter dated 11 December 2001 the defenders informed the pursuer of the malfunction; by letter dated 5 March 2002 the pursuer received advice from the defenders that his samples should not be used for IVF; and thereafter the pursuer experienced "irritability, tearfulness, anger and negative ruminations" and also "distress", which, on a sympathetic view of his pleadings, developed in late 2002 or early 2003 into a depressive disorder of two years duration. The alleged psychiatric injury does not arise directly from damage to property; the claim in negligence cannot satisfy the control mechanisms for secondary victims; and the claimed psychiatric injury did not arise from shock. The pursuer did not have a "close tie of love and affection" with the "injured party". The pursuer did not witness the "accident" or the immediate aftermath. The pursuer did not have any direct perception of the malfunction; and it is axiomatic that direct perception of the distressing event is essential to found a claim for "pure" mental injury in delict as a "secondary victim" [In re Organ Retention Group Litigation [2005] QB 506 at § 197; Alcock v Chief Constable of South Yorkshire (HL (E)) [1992] 1 AC 310 at 400D―402D per Lord Ackner, at 407A―F, 411F―412B, 416D―417A].
[81] The defenders submit that Attia is not a reliable guide: the outcome is unknown; the case does not have a significant after‑history; and the case pre‑dates the Alcock analysis. If you can allow for equivalence between the Alcock "close ties of love and affection for a family member" and the Attia "emotional attachment to the family home and treasured possessions", then, the defenders accept, Attia does meet the Alcock secondary‑victim test for "pure" psychiatric injury. This is on the basis of two determining facts, namely (1) that Mrs Attia was a witness to the harmful event (the fire in that case) and (2) that Mrs Attia might have been physically injured. Equivalent facts are absent from the present case. If the Alcock control mechanisms were not to apply in property damage cases, the defenders say, you would have the anomaly that it would be harder to get damages for mental injury arising from the death of a close relative than it is to get damages for mental injury arising from property damage.
[82] As to whether the pursuer is a "primary victim", the defenders dispute that the pursuer can be classed with mental-injury claimants harmed by negligent provision of professional services, negligent decision-making and negligent communication. In the Thameside & Glossop cases, once a decision had been made to impart bad news to patients, namely that they had been exposed to the risk of HIV infection, there was a duty of care to communicate the news in such a way as not to cause or to aggravate psychiatric illness: but that was a matter of admission, not a decision by the court. In Farrell, another case from Southmead as it happens, nurses at a special care baby unit mistakenly told the claimant that a premature baby fathered by him had died an hour before. The corpse ― someone else's dead baby ― was brought to him and he cradled it in his arms. The judge found that the event caused "nervous shock" and contributed to the development of post‑traumatic stress disorder [PTSD] so that damages should be awarded to the claimant as a primary victim. In W and Others foster carers suffered psychiatric illness including reactive depression and PTSD after discovering that their own children had been sexually abused by a foster child wrongly placed with them by the local authority. In an appeal against striking out the House of Lords held that the law did not prevent the parents from being primary victims to whom the local authority owed a duty of care not to cause psychiatric injury. The hypothesis was that the illnesses were caused by the parents' feeling of responsibility for their children's exposure to abuse. McLoughlin was another appeal against striking out: the Court of Appeal held it to be arguable that the contractual relationship of solicitor and client gives rise to a duty of care not to expose the client to the risk of psychiatric injury which might accompany wrongful conviction. A client who suffered because of a poorly prepared defence that ignored his express instructions could be regarded as a primary victim [Scottish Law Commission, Report on Damages for Psychiatric Injury, Scot Law Com No 196 (Edinburgh, 2004), § 2.12; AB & Others v Tameside & Glossop Health Authority & Anor [1997] PNLR 140; Farrell v Avon Health Authority [2001] Lloyd's Rep Med 458; W and Ors v Essex County Council [2001] 2 AC 592; McLoughlin v Grovers (A Firm) otherwise McLoughlin v Jones (CA) [2002] QB 1312; In re Organ Retention Group Litigation [2005] QB 506].
[83] The Organ Retention decision is about the retention of pathology specimens removed post mortem from dead children and subsequently disposed of without further reference to the parents. In the three lead cases the claimants each claimed for an adjustment disorder triggered by notification of the retention and disposal of organs. Gage J found that organ retention consenting procedures involve a continuing doctor‑patient relationship. His Lordship held that doctor‑patient relationships are akin to contract; and that parents who suffer mental shock from acquiring organ retention knowledge are primary victims of any negligent failure to advise that their children's organs may be removed and retained. The defenders submit that In re Organ Retention was wrongly decided: describing the parents as "primary victims" was a way of avoiding the Alcock controls; and in any event the facts of In re Organ Retention are wholly dissimilar, partly because of the continuing doctor‑patient relationship ― which does not exist in the pursuer's case ― and partly because the claimants were "participants" in the alleged harmful events, namely the consenting procedures [In re Organ Retention Group Litigation [2005] QB 506 at §§ 67, 84, 109, 193―226].
[84] The defenders submit that there cannot be compensation for "pure" psychiatric injury unless the injury is induced by shock, by, that is "the sudden appreciation by sight or sound of the traumatic event". In Cross Lord Macfadyen held that the "nervous shock" control does not apply to primary victims. Cross was an employers' liability case. According to the defenders, workers are primary victims because they "participate" in the work of the enterprise and because employers owe a duty of care to their workers to provide them with a system of work which safeguards mental health as well as physical wellbeing. As Lord Hoffman said in White, the breakdown of the employee in Walker "was caused by the strain of doing the work which his employer had required him to do" [Wood v Miller 1958 SLT (Notes) 49; Taylorson v Shieldness Produce Ltd [1994] PIQR P329; Taylor v Somerset Health Authority [1993] PIQR P262; Sion v Hampstead Health Authority [1994] 5 Med LR 170 (CA); Tredget and Tredget v Bexley Health Authority [1994] 5 Med LR 178; North Glamorgan NHS Trust v Walters [2003] PIQR P16; Cross v Highlands and Islands Enterprise 2001 SLT 1060 at §§ 61―63; Walker v Northumberland County Council [1995] ICR 702; White and Ors v Chief Constable of South Yorkshire [1999] 2 AC 455 at 505D―506A per Lord Hoffmann].
Discussion: delictual claims for mental injury
[85] The defenders submit that while Yearworth may have approved the claim in bailment, it did not unequivocally support the tort claims laid in negligence. This is correct: but contrary to what the defenders imply, at this stage the point is one in favour of the negligence claims, not against them. This is because Yearworth was a trial of preliminary issues. On the trial of preliminary issues the learned district judge dismissed the plaintiffs' claims determining among other things that mental injury flowing from damage to sperm could not in principle give rise to a claim for damages in tort. The Court of Appeal disagreed, allowed the appeal on this and other points and remitted the case to the county court. In other words the Court of Appeal decided that the tort claims were not bound to fail. That is the view that I take of the pursuer's delictual claims in the present case.
[86] I guess that the jurisprudence in this area has been shaped in part by the fact that the common law of England & Wales allows no compensation to family members in death cases for grief and sorrow. The issue that has taxed the courts was defined by Dillon LJ in Attia as follows:
"How far is it right that the law should allow a claim for damages against a wrongdoer, where the wrong done by the wrongdoer was primarily a wrong done to someone other than the claimant, and the claimant is a person of whom, at the relevant time, the wrongdoer had no knowledge and who may then have been far away from the scene of the wrongdoer's act?"
His Lordship went on to say, immediately, that the difficulty did not arise in Attia, because, given the pre‑existing relationship between Mrs Attia and British Gas Plc, there was "no problem of proximity". In similar vein Bingham LJ said:
"... there is in this case a special feature... , namely, a special relationship between the defendants and contractors and the plaintiff as occupant of a house in which they were working".
I think it is reasonably clear that the fact that Mrs Attia, not unexpectedly, witnessed the conflagration and the possibility ab ante that she herself might have been injured went to foreseeability rather than proximity [Attia v British Gas Plc [1988] 1QB 304 at 311H―312B and 313D per Dillon LJ, at 314D and 317B per Woolf LJ, at 318E-319E per Bingham LJ].
[87] The defenders in the present case are mistaken about Attia and about how Attia was analysed in Yearworth. The Court of Appeal in Yearworth said this about Attia [at § 55]:
"In Attia v British Gas plc [1988] QB 304, D who was installing central heating in C's home, negligently set it on fire. For four hours C witnessed her home ablaze. This court held that, subject to proof of causation and foreseeability, she could recover for psychiatric injury sustained as a result of it. Bingham LJ, at p 320E, gave a different example of where recovery would lie, namely if
'... a scholar's life's work of research or composition were destroyed before his eyes as a result of a defendant's careless conduct, causing the scholar to suffer reasonably foreseeable psychiatric damage.'
It will be noted that the facts both of the Attia case and of Bingham LJ's different example are of injury sustained as a result of witnessing damage to property. It may be controversial to distinguish between the person who witnesses damage to his property and in consequence suffers psychiatric injury and the person who receives information about damage to it and suffers similarly. On the other hand the distinction does no more than to replicate what, for policy reasons, has been drawn in relation to the so-called secondary victim who foreseeably suffers psychiatric injury as a result of personal injury which the primary victim suffers, or to which he is exposed, as a result of the defendant's negligence: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. At all events, in the light of what follows, there is no need for us to consider the distinction any further."
The defenders' submission characterises Mrs Attia as a "secondary victim": but clearly the Yearworth judges, assuming without deciding that an Alcock‑type framework was applicable, analysed Mrs Attia as a "primary victim" and saw the Yearworth plaintiffs as potentially eligible "secondary victims". Thus the example proposed by Bingham LJ might have been re‑worked to refer to the burning of Thomas Carlyle's manuscript of The French Revolution by John Stuart Mill's housemaid. The sage of Craigenputtock did not witness the event: but Mill offered him £200 compensation, worth approximately £25,000 in today's money.
[88] The Yearworth analysis does not purport to be anything other than provisional. I remain unconvinced, with respect, that the primary/secondary distinction has more than illustrative value in cases where there is only one victim. The primary/secondary issue should not arise in sole victim cases where the allegation is of wrong done directly to the injured party's interests, where the injured party's identity, as an individual or possibly as a member of a class, is known in advance to the wrongdoer and where the wrongdoer has a duty of care by virtue of pre‑existing legal proximity to safeguard the interest in question.
[89] I also take the view that the concept of "pure" mental injury is capable of being misunderstood, as it has been in the present case. The idea derives from analogy with "pure economic loss" in delict, that is economic loss not consequent on property damage or personal injury. The descriptor "pure" tends to be applied to all cases of mental injury not consequent on bodily injury without necessarily recognising a distinction between cases where mental injury is the result of a direct assault on the mind in the absence of pre‑existing legal proximity, of which Page is an example, and cases where there is pre‑existing legal proximity of which Attia is an example. It is probably too late to change the terminology: but clearly the Attia type is less "pure" than the Page type [Page v Smith [1966] AC 155; McLoughlin v O'Brian [1983] 1 AC 410, at 418A-423C per Lord Wilberforce].
[90] Observing this distinction, as indeed the pursuer's written argument does, I understand it now to be settled that damages for mental injury are recoverable to a different extent in three types of delictual case, namely (1) usually where mental injury is associated with bodily injury, (2) exceptionally where mental injury is "pure" mental injury in the absence of a pre‑existing relationship and (3) in a range of situations involving mental injury consequent on wrongful harm to the claimant other than bodily injury, the unifying principle being pre-existing legal proximity. "Wrongful harm" in this context extends to include harm to the claimant's rights or other non-patrimonial interests. Although the claim in the present case is formulated primarily as one of damage to property, no value is attributed to the sperm; and no claim is made for the damage to the sperm per se. The non‑patrimonial interest is characterised by the pursuer as "procreative autonomy". The Yearworth analysis focuses on the property aspect and does not consider in detail the non‑patrimonial harm. The idea of "witnessing the event or its immediate aftermath" is not readily applicable to non‑patrimonial harm or to microscopic damage or to an appreciation of harm that develops over time, like the appreciation, through discussion with experts, of the consequences of thawing on stored gametes. I respectfully agree with the analysis of Lord Macfadyen in Cross to the effect that "nervous shock", such as may be produced by witnessing a harmful event, is not necessarily a pre-requisite for compensable "pure" mental injury [McLoughlin v O'Brian [1983] 1 AC 410, at 423A-B per Lord Wilberforce; Cross v Highlands and Islands Enterprise 2001 SLT 1060 at §§ 61-64].
[91] The foregoing principles are illustrated - even if not always articulated - in the cases of Attia, Tameside & Glossop, W and Ors, McLoughlin, In re Organ Retention and Yearworth founded on by the pursuer. Stevens is another case that supports the pursuer. In Stevens temporary judge C J Macaulay QC declined to dismiss a claim for damages for psychiatric injury by the mother of a deceased infant whose brain had been removed post mortem and retained for research. The learned temporary judge held that the unauthorised removal and retention of organs from a dead body constitute a legal wrong for which damages are recoverable by way of solatium in Scots law. The defenders in the present case submit that the juridical basis for this type of claim lies in actio injuriarium, the remedy for intentional affront to the person (iniuria): the claim is not one for negligent damage to property (damnum). This is correct: Ulpian describes mishandling of a corpse as an injury to the heirs actionable by them. The point in the present context is that the defenders' submission does not address the pursuer's secondary delictual claim which proceeds on the basis that stored sperm is not property [AB & Others v Tameside & Glossop Health Authority & Anor [1997] PNLR 140; Farrell v Avon Health Authority [2001] Lloyd's Rep Med 458; W and Ors v Essex County Council [2001] 2 AC 592; McLoughlin v Grovers (A Firm) otherwise McLoughlin v Jones (CA) [2002] QB 1312; In re Organ Retention Group Litigation [2005] QB 506; Stevens v Yorkhill NHS Trust 2006 SLT 889; D M Walker, The Law of Delict in Scotland, 2 edn rev (Edinburgh 1981), 31―32; Digest of Justinian D.47.10.1.4, also D.47.10.27].
[92] Stevens also has a case laid in delict. The learned temporary judge decided that there was sufficient on averment to infer legal proximity. This was notwithstanding the absence of a doctor‑patient relationship between the parent and the clinician who carried out the autopsy-consenting procedure. In this way Stevens reaches the same conclusion as In re Organ Retention by a slightly different route, the common feature being proximity. The decision in Stevens argues against the proposition that there has to be a therapeutic nexus before there can be an ongoing duty relationship in a healthcare setting. Going further - though it is unnecessary to do so - I should have thought that if legal proximity were to exist anywhere outside contractual and doctor-patient relationships, there is as good an argument for its existence between statutory cryostorage providers and individual service users trusting to the cryostore for fertility preservation as anywhere else. I reject the defenders' contention that a therapeutic doctor-patient relationship is the sine qua non of proximity between health service providers and service users. I note that in Farraj (a case not cited by counsel) Swift J held that a private third-party laboratory in contract to provide cell‑culturing services to a statutory health authority owed an independent duty of care to the plaintiff patients [Stevens v Yorkhill NHS Trust 2006 SLT 889 at §§ 22, 67, 72, 77-82; Farraj v King's Healthcare NHS Trust [2006] PIQR P29].
[93] I also reject the defenders' argument that "participation" is determinative, as in the "participation" of workers in the work of the enterprise, or the "participation" of parents in post mortem consenting procedures or, hypothetically, the "participation" of gamete-providers in cryostore breakdowns. "Participation" is a strained way of rationalising the type of cases that involve pre‑existing legal proximity by equating claimants in those cases with secondary‑victim claimants who are witnesses to the "traumatic event or its immediate aftermath". The determining factor is rather that claimants are involved with alleged wrongdoers in a relationship that gives rise to a duty of care not to cause reasonably foreseeable harm. On averment the pursuer in the present case was in that sort of relationship with the defenders, as the defenders now concede [cf. In re Organ Retention Group Litigation [2005] QB 506 at §§ 196-199; Hunter v British Coal Corporation and Anr [1999] QB 140 at 162B-H per Hobhouse LJ dissenting; Taylor and another v A Novo (UK) Ltd [2013] 3 WLR 989 at §§ 25‑28 Lord Dyson MR with whom the other members of the Court of Appeal agreed].
[94] That being so, the question is not whether the defenders in the present case owed a duty to avoid causing mental injury: the question is whether mental injury to the pursuer was reasonably foreseeable by the defenders as a consequence of any breach by them of their duty of care. This is, in principle, a question of fact to be reserved, as it was in Yearworth, for answer after the evidence has been heard [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at §§ 54, 55 and 60 per Lord Judge CJ giving the judgment of the court].
[95] The issue at this stage is whether the pursuer's averments taken pro veritate are apt to support the conclusion. The pursuer avers:
"[The defenders] knew or ought to have known [the pursuer] was about to undergo cancer treatment that would render him infertile. They knew or ought to have known, as was obvious, that the storage of sperm was undertaken to provide peace of mind to the pursuer and to preserve his ability to father children. They knew or ought to have known, as was obvious, that knowledge that the sperm was safely stored was likely to provide the pursuer with comfort when he was undergoing treatment for cancer and thereafter once rendered infertile. They knew or ought to have known, as was obvious, that the ability to father children is a deeply personal matter affecting the pursuer's freedom to make decisions about his future family life and integral to his personal autonomy. They knew or ought to have known that if the sperm were to be damaged the pursuer would lose the opportunity to proceed with treatment without additional risk. They knew or ought to have known that if the samples were damaged to the extent there was DNA damage it would be unlikely the samples could be used to effect conception and live birth, even if the pursuer elected to use them. They knew or ought to have known that in the event of such damage the pursuer was likely to suffer loss, injury and damage including psychiatric harm and loss of autonomy, as in fact occurred..."
It would be safe to say that most of the foregoing propositions are axiomatic. If authority be required it can be found in Evans and Yearworth. In Evans in the Court of Appeal Arden LJ said:
"Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity."
The averments which do not state the obvious are relevant for proof; and it may be that the proof will be filled out by reference to the thinking of health professionals about the purpose of fertility preservation by cryostorage at the material dates. During the oral debate that I heard, there was virtually no discussion of the third‑stage tests for the imposition of liability in delict for "pure" mental injury, namely "assumption of responsibility", "fair, just and reasonable" and "distributive justice". I assume that, if these tests have a bearing, the defenders are content to discuss their application after the evidence is out [Evans v Amicus Healthcare Ltd [2005] Fam 1 at § 81 per Arden LJ; Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at 4B―F, at §§ 10, 53, 57 per Lord Judge CJ giving the judgment of the court].
Damages for "distress"
[96] In Evans Arden LJ stated that infertility causes "great personal distress" (above). The defenders tell me that it is trite that damages for "mere distress" and "mere anxiety" are not recoverable in delict. In McLoughlin Lord Bridge said: "The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured." In Page Lord Lloyd said:
"Shock by itself is not the subject of compensation, any more than fear or grief or any other human emotion occasioned by the defendant's negligent conduct. It is only when shock is followed by recognisable psychiatric illness that the defendant may be held liable."
In the present case the pursuer submits that damages for the distress that he suffered are recoverable as part of his contractual claim but are irrecoverable if his claim lies in delict. The defenders naturally agree. I can understand how the pursuer has come to form this view: but I believe it to be mistaken. On averment, it seems to me, the claim is not necessarily for damages for "mere distress" [McLoughlin v O'Brian [1983] 1 AC 410 at 431G-H per Lord Bridge of Harwich; Page v Smith [1996] AC 155 at 189G per Lord Lloyd of Berwick].
[97] In Yearworth five of the six claimants alleged that they had suffered "not merely mental distress but a psychiatric injury, namely a mild or moderate depressive disorder". The claim of the sixth claimant, Christopher Waddleton, was described as follows:
"The sixth man alleges that, as a result of the loss of his sperm, he has suffered mental distress and that, inasmuch as it remains unclear whether he has recovered his natural fertility, his distress has continued to date and may well continue in the future. He does not, however, allege that he has also suffered a psychiatric injury."
The Court of Appeal noted that damages for distress are recoverable for breach of contracts which "are not purely commercial but which have as their object the provision of enjoyment, comfort, peace of mind or other non-pecuniary, personal or family benefits". The court held that bailment of sperm samples came within the same principle so that all the claimants including Mr Waddleton would in principle be entitled to compensation for psychiatric injury and "actionable distress" [Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at §§ 11, 56 and 57 per Lord Judge CJ giving the judgment of the court].
[98] It has been doubted whether in Scots law, in spite of dicta to the contrary, there is a threshold for actionable mental injury in delict: but in any event I think it is reasonably clear that the judicial outlook is now sufficiently flexible to recognise that distress can be the precursor of more serious mental symptoms. Where the line is to be drawn between distress and mental illness "is a matter for trial". Distress by itself may be compensable where professional negligence is proved. In the present case the averments about apparently sub‑clinical mental symptomatology do not require to be read as forming the subject matter of a standalone claim. Accordingly I must conclude that the pursuer's averments about "irritability, tearfulness, negative ruminations and distress" preceding "a depressive disorder" are not so obviously irrelevant that they should be excluded from probation, even assuming the claim is one only for damages in delict [R White and M Fletcher, Delictual Damages (Edinburgh, 2000), 42-43; McLoughlin v O'Brian [1983] 1 AC 410 at 433A-C per Lord Bridge of Harwich; Attia v British Gas Plc [1988] 1QB 304 at 311D per Dillon LJ, at 316F-G per Woolf LJ; McLoughlin v Grovers (A Firm) otherwise McLoughlin v Jones (CA) [2002] QB 1312 at § 29 per Brooke LJ, at § 51 per Hale LJ].
Claim for "loss of autonomy"
[99] The debate has left me uncertain as to the nature of the dispute around the pursuer's "loss of autonomy" claim. Pursuer's senior counsel is insistent that "loss of autonomy" must be recognised as a separate head of damages and that compensation for loss of autonomy cannot be "rolled up" under the heading of solatium. I suspect that this is an attempt to outflank a perceived requirement to prove that the pursuer's sperm was of reasonable quality and that he would have had a better than 50 per cent chance of becoming a father if the sperm had been released undamaged: but I really do not know. The pursuer founds on the cases of McFarlane, Parkinson, Briody and Rees [McFarlane v Tayside Health Board 2000 SC (HL) 1 at 15H-16A per Lord Steyn, at 44H-45A; Parkinson v St James & Seacroft University Hospital NHS Trust [2002] QB 266 at §§ 56-63, 66-69, 73, 89, 93 per Hale LJ; Briody v St Helens and Knowsley AHA [2002] QB 856 at § 18 per Hale LJ; Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at §§ 8-10 per Lord Bingham, §§ 17 per Lord Nicholls of Birkenhead, §§ 123-126 per Lord Millett, at § 148 per Lord Scott of Foscote].
[100] Scots law has recognised negligently caused sterility as a loss for which solatium is recoverable in claims for bodily injury. In the case of Goorkani the patient was prescribed treatment for an eye condition which rendered him infertile. Lord Cameron of Lochbroom held that the patient should have been warned of the risk and awarded damages of £2,500 as solatium for "the loss of self esteem, the shock and anger at the discovery of his infertility together with the frustration and disruption which ignorance and the sudden shock of discovery brought to the marital relationship". His lordship said: "Plainly any award cannot include any element for the loss of ability to father children." The reason was that the pursuer had failed to prove that it was standard practice back in 1981 to offer sperm banking before treatment began. In McEwan the patient was rendered practically sterile as a secondary consequence of negligent surgery. Lord Matthews was persuaded that solatium should be assessed as a whole and not under a series of separate heads. His Lordship awarded £65,000 for among other things the inability of the pursuer to add to his family or at least his very great difficulty in doing so [Goorkani v Tayside Health Board 1991 SLT 94; McEwan v Ayrshire & Arran Acute Hospitals NHS Trust [2009] CSOH 22].
[101] The defenders argue that the only authority for a "loss of autonomy" award is Rees; and that Rees, though a decision of the House of Lords, is not binding on this Court. According to the Lord Justice‑Clerk in Dalgliesh: "no legal issue in Scots law should be held to be governed by a House of Lords decision in an English appeal, unless the point in issue is based on legislation which has equal applicability and force in both countries, or has been decided by an authoritative and binding court to be exactly the same and have the same legal significance in both countries." Rees, it is said, has not been followed or even discussed by any Scottish court; it is the decision of a bare majority; the reasoning of the four Lords of Appeal in the majority was not identical; and the powerful dissent of three members of the seven-man Appellate Committee, including the only Scots judge, Lord Hope of Craighead, means that it would be unsafe to apply the ratio of Rees beyond identical fact situations - see for example Lord Steyn at paragraphs 41 to 44. The purpose of the award in Rees, so the defenders say, was to compensate by a "conventional award" for something that could not otherwise - since the decision in McFarlane - be compensated for, namely the upbringing costs of live-born children in "wrongful conception" and "wrongful birth" cases. Thus a "Rees award" was not considered applicable in the Less case where the pregnancy resulted in a stillbirth. There is no authority for a "loss of autonomy" award in "wrongful sterility" cases; and in any event wrongfully‑caused sterility is already compensated for by awards of solatium [Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309; Dalgliesh v Glasgow Corporation 1976 SC 32 at 52 per Lord Justice‑Clerk (Wheatley); McFarlane v Tayside Health Board 2000 SC (HL) 1; Less v Hussain [2013] Med LR 383].
[102] On what I have heard, the defenders' argument is the better one: but I do not need to do anything about it since the pursuer's averment of "loss of autonomy" is not per se irrelevant. It is as capable of forming part of a claim for solatium as it is of supporting a standalone claim, so that there is no reason to prevent the averment from going to proof: it can be left to the ultimate decision maker to decide whether a separate award should be made. In deference to the arguments I have heard, I offer some observations. There is a possible contradiction in the pursuer asserting on the one hand that stored sperm is property and in claiming on the other hand "loss of autonomy" in respect of the, let us assume, destruction of the sperm. Compensation for "loss of autonomy" does not look like a proprietary remedy. "Autonomy" in this context seems to be a personality right. See the discussion of "personal autonomy" by the Strasbourg court in Pretty. In McFarlane Lord Millett, in a minority of one, stated that there should be entitlement to "general damages" for "loss of autonomy". Lord Millett was the only one of the majority in Rees to use the phrase "loss of autonomy" to describe the loss which the "conventional award" was intended to compensate: he meant the award to compensate for denial of the right of adult individuals to limit the size of their families rather than to compensate for upbringing costs. In Parkinson Hale LJ, as she then was, said that the right of physical autonomy, that is "the right to make one's own choices about what will happen to one's own body" is included in "the right to bodily integrity". Her Ladyship described a wrongful pregnancy as "a severe curtailment of personal autonomy". She appeared to equate parental responsibility with "an infringement of personal autonomy". In Rees in the Court of Appeal, referring to the financial burden and other responsibilities, Hale LJ added: "the principal detriment suffered by anyone who becomes a parent against their will is the legal and factual responsibility to look after and bring up the child" [Pretty v United Kingdom (2002) 35 EHRR 1; McFarlane v Tayside Health Board 2000 SC (HL) 1 at 44I per Lord Millett, cf. at 16A per Lord Steyn; Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at §§ 123, 125 per Lord Millett; Parkinson v St James & Seacroft University Hospital NHS Trust [2002] QB 266 at §§ 56-63, 66-69 per Hale LJ; Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20 at § 21 per Hale LJ].
[103] Parkinson was a case about wrongful conception. Briody, in contrast, decided less than three months after Parkinson, was a case where clinical negligence had deprived a young woman of her uterus and thus her ability to bear children, though not of the possibility of implanting her biological embryos conceived in vitro with her partner's sperm in a surrogate womb. In Briody, Hale LJ said that for a young woman to be deprived of the chance of having children is "a very serious loss of amenity": she did not say it is "a very serious loss of autonomy"; and she also appeared to say, if I understand correctly, that the "very serious loss of amenity" should be reflected in an enhanced award of general damages, not in a separate award [Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) [2002] QB 856 at § 18 per Hale LJ].
[104] It is also the case, as mentioned above, that from the early 19th century solatium has come to be recognised as the common law head of damages in Scotland for all non‑patrimonial loss whether represented by damage to rights and interests, personal affront or personal injury, whether caused on purpose or negligently. Thanks to the intervention of statute and for a number of practical reasons we have become used to the splitting of damages including, in some circumstances, non‑patrimonial awards, into various heads: but as Lord Hope carefully explained in Rees, awarding the sort of conventional sum proposed by the majority breaks the common law rule as to non-patrimonial damages and, if it were intended to compensate patrimonial loss, the rule as to patrimonial damages as well. I would say, with respect, that while giving the appearance of judicial correctness, the "conventional award" is actually a cap on damages (cf. the statutory damages caps increasingly used in other jurisdictions for malpractice claims in particular and personal injury claims in general.) I cannot think why, unless there is a concern about difficulties of proof, the pursuer in the present case wants to take the "conventional award" route. As it happens, I am not at all sure that the thinking of the majority in Gregg about "loss of a chance" would necessarily apply in a wrongful sterility claim [Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at § 73 per Lord Hope of Craighead; eg Caps on Damages, American Medical Association (AMA, 2012) at www.ama-assn.org; Civil Liability Act 2002 (New South Wales) (as amended); Gregg v Scott [2005] 2 AC 176].
Conclusion
[105] For the reasons given I shall reserve the defenders' preliminary plea, their first plea‑in‑law, and allow a proof before answer to parties of their respective averments without excluding any matter from probation. I shall reserve all questions of expenses.