Delictual Liability and the Loss of Opportunity of Fatherhood: Holdich v Lothian Health Board

E. Reid
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引用次数: 1

Abstract

Is the loss of the opportunity of fatherhood a form of damage recognised by the law of delict? Much academic commentary has already been generated by the English case of Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, in which the Court of Appeal ruled that the negligent destruction of sperm samples entrusted for storage to the defendant by cancer patients constituted an actionable breach of bailment. In reaching that decision it took the view that the damage to the sperm samples could not be regarded as personal injury, and other potential grounds for liability in tort were not explored in depth. These issues have now come to the fore in Scotland in Holdich v Lothian Health Board [2013] CSOH 197, 2014 SLT 495, which arose out of similar circumstances. Following citation of Yearworth, Lord Stewart held the pursuer relevantly to have argued that sperm samples deposited by him with the defender were capable of being owned by him, and that, consequently, failure properly to conserve them could be regarded as a breach of the contract of deposit. However, his Lordship further allowed that the case in negligence for damages for mental injury, and for loss of “autonomy”, was relevant for proof, observing in addition that a claim based upon personal injury might not have been “far fetched”. Others have commented in detail upon the property law implications of Holdich (see See K. Reid “Body Parts and Property”, Edinburgh Law School Working Paper Series, 2015/25 (SSRN, 2015). This paper focuses instead upon the important questions of delictual liability raised thereby.
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赡养责任和丧失做父亲的机会:霍尔德希诉洛锡安卫生委员会
丧失做父亲的机会是违法行为法所承认的一种损害吗?英国Yearworth诉North Bristol NHS Trust一案[2009]EWCA Civ 37, [2010] QB 1已经产生了许多学术评论,其中上诉法院裁定,疏忽破坏癌症患者委托给被告储存的精子样本构成可诉的违反保释。在作出这一决定时,法院认为对精子样本的损害不能被视为人身伤害,并且没有深入探讨侵权责任的其他潜在理由。在苏格兰holich诉洛锡安卫生委员会[2013]CSOH 197, 2014 SLT 495案中,这些问题现已浮出水面,该案产生于类似的情况。在引用Yearworth一案之后,Lord Stewart认为追诉人相关地辩称,他向辩护人存放的精子样本能够为他所有,因此,未能妥善保存这些精子样本可被视为违反了存放合同。然而,法官大人进一步承认,过失损害精神伤害和丧失“自主权”的案件与证据有关,此外还指出,基于人身伤害的索赔可能并非“牵强附会”。其他人已经详细评论了holich的物权法含义(见K. Reid“身体部位和财产”,爱丁堡法学院工作论文系列,2015/25 (SSRN, 2015)。相反,本文侧重于由此提出的侵权责任的重要问题。
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