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

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.