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As landmark personal injury legal rulings go, the one about to be discussed is perhaps a no-win situation. But the broadsheets are heralding it as a "landmark" and it should probably therefore be reported here as such.
In December 2008 six cancer patients and/or their representatives took their personal injury compensation_claim to an Appeal Court after a County Court judge ruled their situation warranted no compensation.
Doctors had warned the North Bristol NHS Trust cancer patients that chemotherapy may adversely affect their chances of producing children and subsequent sperm samples, taken to be kept in storage, were ruined when one of the Trust's long-term storage freezers malfunctioned.
The County Court judge ruled that the sperm did not constitute property and so the donors were not able to make a compensation claim under personal injury law. However, the Appeal Court judges found that the men could claim for the psychiatric injury or mental distress caused by the news that the sperm samples had been destroyed, thus potentially ending their chances of becoming fathers.
In his introduction to the ruling, Lord Judge said, "The appeals raise interesting questions about the application of common law principles to the ever-expanding frontiers of medical science."
He said the case posed a "novel question" as to whether the men could sue over something they had entreated to the hospital's care that was for possible later use.
Lord Justice Wilson said, "Their reaction to news of the loss lies at the heart of their claims.
"They each argue that in any event it is patently foreseeable that, already in a vulnerable condition, each would be likely to suffer, to put it at its lowest, a severe adverse reaction to the news that, unless he was likely to recover his natural fertility, his chance of becoming a father, represented by the storage of his sperm, had been lost."
Whereas the patients' solicitors had argued that the destruction of the sperm was akin to any other personal injury where bodily harm had occurred without the permission of the injured party, the appeal judges ruled that the loss of sperm was not a personal injury.
Lord Justice Wilson said, "In this jurisdiction developments in medical science now require a reanalysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for... an action in negligence or otherwise.
"The present claims relate to products of a living human body intended for use by the persons whose bodies have generated them."
It was noted in the ruling that the hospital had taken the sperm samples from the donors and given assurances that they would be available for later use, as the unit had the skill and technology to store the samples safely.
Lord Justice Wilson added that the promise had been broken.
So, this "landmark ruling" means that men and women left childless under the same circumstances cannot claim for the loss of the sperm or eggs, as they cannot be ruled as property, but the donors can be compensated for the psychiatric distress they suffer as a result of the loss.
The appeal judges added that the amount of damages will be "relatively small".
Hence, we have a landmark ruling which will not benefit these people in any substantial way; it will probably not compensate them for the financial outlay required to cover the personal injury litigation, if they weren't able to secure a no win, no fee lawyer. And as for compensation for the distress caused by finding out that your chances of fathering a child has been destroyed by someone else's negligence well, that surely that is immeasurably huge.
