The issue of whether body parts are property, or continue to be a

person, for the purpose of a defence medical examination will be

litigated by my firm shortly. In Ontario, the Courts of Justice Act

provides " where the physical or mental condition of a party to a

proceeding is in question, the court, on motion, may order the party to

undergo a physical or mental examination by one or more health

practitioners." Are samples of human tissue taken during surgery, sought

to be examined by a defendant, captured by this section? Another rule

provides for the inspection of property of a party and conducting tests.

Is it property?  At first blush it may not seem to matter, but in this

case it will. The results of defence medical examinations must be

disclosed to the plaintiff; property examinations are not specifically

required by the rule to be disclosed.

The surgical sample will determine the cause of death. I will let you

know how it turns out.

Barbara Legate

-----Original Message-----

From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]

Sent: Thursday, February 12, 2009 5:11 AM

To: Neil Foster

Cc: obligations@uwo.ca

Subject: Re: Negligence and bailment re body parts

Neil Foster wrote:

> Dear Colleagues;

> For those who haven't seen it yet, the amazing decision in /Jonathan

> Yearworth & Ors v North Bristol NHS Trust/ [2009] EWCA Civ 37 (04

> February 2009)

> http://www.bailii.org/ew/cases/EWCA/Civ/2009/37.html deals with such

> fascinating questions as (1) is it "personal injury" to destroy

> someone's detached body part? (here, sperm designed to be stored when

> cancer treatment was taking place); (2) can such a body part be

> "personal property"? (yes, with reference to the grisly HCA decision

> in /Doodeward v. Spence/ (1908) 6 CLR 406); (3) if so, is it not only

> actionable negligence but also actionable under the principles of

> bailment to carelessly let it be destroyed?; (4) can damage be

> recovered for distress short of actual psychiatric illness suffered by

> the donors- yes, interestingly enough, by analogy with /Jarvis v.

> Swans Tours Ltd/ [1973] 1 QB 233 and by reference to two other

> Commonwealth decisions providing for mental distress in an action

> against a bailee.

> My only quibble with the decision, at least for the moment, is the

> Court's odd reference at [46] to the question "whether, independently

> of an action in tort, the men had a distinct cause of action against

> the Trust under the law of bailment". To my mind (others may disagree)

> the law of bailment is simply a way of deciding the question of who,

> in some commonly occurring circumstances, is entitled to possession;

> any action taken in relation to disturbance of that possession is

> still an action in tort (conversion, detinue, trespass to goods etc or

> whatever local version of these torts exists). But I don't necessarily

> disagree with the result.

> Regards

> Neil F

>  

> Neil Foster

> Senior Lecturer, LLB Program Convenor

> Newcastle Law School

> Faculty of Business & Law

> MC158, McMullin Building

> University of Newcastle

> Callaghan NSW 2308

> AUSTRALIA

> ph 02 4921 7430

> fax 02 4921 6931

I noticed that too. A couple of points:

(a) I wondered, in the grisly way lawyers have, why the defendants

didn't plead that the action in negligence must fail because the

claimants didn't have possession of, or any immediate right to possess,

the substance concerned. I can't see how my right to insist if I wish

that you destroy something of mine in your possession -- which is all

the claimants had under the provisions of the HFEA -- amounts to the

same thing.

(b) It's all very well to say that there shouldn't be a need for the

application of skill in order to make body parts ownable. But the skill

rule did have one advantage: it showed fairly definitely who was the

first owner. If we simply say that the inhabitant of the body owns the

extracted parts / excretions of it, we open the way for macabre (and

strict liability) actions in conversion againsr surgeons who transplant

the wrong organs.

Best wishes  to all

Andrew

Best

A

--

Andrew M Tettenborn

Bracton Professor of Law, University of Exeter

Snailmail:

Law School

University of Exeter

Rennes Drive

Exeter EX4 4RJ

England

Phone:

Tel:             01392-263189 (int +44-1392-263189)

Fax:             01392-263196 (int +44-1392-263196)

Cellphone:       07870-130528 (int +44-7870-130528)

LAWYER, n.

One skilled in circumvention of the law. (Ambrose Bierce, 1906).