Date: Mon, 6 Nov 2006 13:06:48 +1100

From: Harold Luntz

Subject: Body parts and conversion

One side issue that was briefly brought up in the discussion of defamation and enrichment, but then dropped, might be worth some further consideration in its own context. Michael Jones correctly wrote:

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).

He will be aware that both Kelly and AB relied on the bizarre Australian High Court case of Doodeward v Spence (1908) 6 CLR 406, which was an action for detinue against a police inspector who removed a two-headed corpse of a stillborn child from public display. By majority, the High Court held that the statement of claim stated a good cause of action. In Roche v Douglas as Administrator of the Estate of Rowan (deceased) [2000] WASC 146; (2000) 22 WAR 331 a Master of the Supreme Court of Western Australia observed that Doodeward was decided some 50 years before Watson and Crick discovered DNA. He held that for the purposes of rules of court a tissue sample removed from a dead body could be treated as "property" and he could therefore order it to be DNA tested. The issue has been further considered by the Australian Law Reform Commission in ALRC Report 96, Essentially Yours: The Protection of Human Genetic Information in Australia - Chap 20. Ownership of Samples and the Human Tissue Acts.

In the controversial decision of Moore v Regents of the University of California 51 Cal 3d 120 (1990) the Supreme Court of California held that a person had no action for conversion of his own body parts excised from him, though he might have an action for breach of fiduciary obligation in so far as the doctor exploited the part for his own profit without consent. A good deal has been written on this issue, as a search of the databases will reveal.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

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