Cancer patients' sperm cash claim

Cancer patients whose sperm samples were destroyed when a hospital freezer broke down are claiming personal injury damages from North Bristol NHS Trust.

Six men, one of whom has since died, had asked for samples to be put on ice, fearing that cancer treatment could make them infertile.

In June 2003 a freezer tank at Southmead Hospital failed.

Appeal judges are being asked to rule the destruction amounts to personal injury for which damages are payable.

Some of the men are not expected to regain their fertility.

North Bristol NHS Trust admitted breach of duty at an earlier hearing, but a county court judge held that the trust was not liable to pay damages for personal injury because the samples were "out of the body".

Property argument

In reaching his decision, Judge Jeremy Griggs compared the sperm to hair cut off by a barber, or toenail clippings.

Lawyers for the five men and the dead man's widow asked the Court of Appeal to overturn the judge's ruling because the destroyed sperm was "living and biologically active, albeit in a suspended state".

The sperm was "awaiting further use" for exactly the same purpose as it would have been if it had stayed in the men's bodies, and it could not have been used without their permission, barrister James Townsend told the Lord Chief Justice, Lord Judge, sitting with Master of the Rolls Sir Anthony Clarke and Lord Justice Wilson.

The sperm samples, as living tissue, were quite unlike cut hair or toenails, he said.

The trust's lawyers argue that the sperm samples were not capable of amounting to "property" in the legal sense, and that the men suffered no personal injury.

The hearing continues on Tuesday.

Judgment is expected to be reserved to a later date.