Date: Thu, 2 Nov 2006 22:42:16 +0000

From: Michael Jones

Subject: Defamation and compensation for enrichment

Body parts, once detached, can be become the subject of property rights in some circumstances. So, although there is no property in the body of a deceased person (R v Kelly [1999] QB 621, 630) a part of a body may acquire the character of property which can be the subject of rights of possession and ownership where the body part has been the subject of the application of skill such as dissection or preservation techniques: see AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 at [148] where Gage J rejected a claim by parents in relation to the retention of the organs of children following post-mortem examinations based on the tort of wrongful interference. The parents had no right of burial and possession of organs lawfully removed at post-mortem and retained, and therefore there could be no action for wrongful interference with the body of the child (at [161]). On the other hand if a parent, when consenting to a post-mortem, specifically asked for the return of an organ, in certain circumstances it might be arguable that a cause of action based on conversion exists, but "in the absence of such a cause of action in respect of the body of a deceased person being recognised by an English court I am not prepared to hold that one does exist" (ibid).

All of this still seems, however, some distance from appropriating and selling my reputation (as opposed to damaging it). My reputation remains "my reputation" even in its damaged state. It does not become someone else's reputation.

And to reply to Jason's point: "But why would the aggravated damages be equal to the tickets sales of my nonconsensual boxing match? That choice by the judge would be totally arbitrary. For example, I could see my embarrassment growing with the number of people attending but this is independent of the price they paid. Likewise the choice of that figure for punitive damages is also arbitrary for the reasons that Allan gave" I was simply suggesting that this was an option open to the judge, to reach a pragmatic solution to the problem of the defendant profiting from his wrong.

Measuring the damage to my reputation (or my dignity in the non-consensual boxing match) by reference to the defendant's profits is equally arbitrary, if not more so. What if the defendant is a bad businessman, and makes a loss? My damage does not necessarily change with the business skills of the defendant.

All the best,

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Robert Stevens
Sent: Thu 02/11/2006 20:20
To: Daniel Friedmann
Cc: Jones, Michael; Jason Neyers
Subject: Re: RE: ODG: Defamation and compensation for enrichment

Dan wrote:

A closer example is that of the defendant cutting the plaintiff's nose or any other part of his body and sells it (eg for medical or research purposes). Although this is a nonsalable "property" the defendant should be liable in restitution.

Once detached, is a nose non-saleable at common law? I know that the sale of human organs is a criminal offence in the UK, but Jo in Little Women was able to sell her hair, why not a nose?

Who has title to my schnoz once it is severed? Me, presumably, if I am in possession, but what if the removal is carried out by someone else who now has possession of the proboscis? I have not rooted around for the answer to these questions.

Of course, although the subject matter of my right to bodily safety, my hooter, can be transferred once detached, this is not the same thing as the right itself which is inalienable, although it can be waived.

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