England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTH SHIELDS COUNTY COURT
(HIS HONOUR JUDGE HARKINS)

		Royal Courts of Justice Strand London WC2 Wednesday, 26 June 1996

LORD JUSTICE PETER GIBSON : This is an appeal by the Plaintiffs, Brenda Dobson ("the Grandmother"), suing as the Administratrix of the estate of the late Deborah Dobson ("the Deceased"), and Andrew Steven Dobson ("the Son"), the Deceased's infant son suing by his grandmother and next friend, the Grandmother. They appeal from the order of His Honour Judge Harkins on 7 August 1995 in the Newcastle-upon-Tyne County Court. The Judge dismissed the Plaintiffs' appeal from the order of District Judge Marley, who had acceded to the application of the Second Defendant, the Newcastle Health Authority, to strike out the claim against it. The Judge gave leave to appeal.

The facts of this case are unusual. I take them not only from the Plaintiffs' pleadings but also from the Affidavit of the Second Defendant's solicitor, Miss Searl, filed in support of the application to strike out. Although that Affidavit is strictly inadmissible under the rules, because the sole ground for the application was that the Particulars of Claim disclosed no reasonable cause of action, Mr. Hone for the Plaintiffs relies on part of the Affidavit and takes no objection to the admission of the facts to which Miss Searl deposed. And he has given us further factual information to which Mr. Curwen for the Second Defendant has not objected.

The Deceased was born on 28 January 1969. She does not appear to have married but gave birth to the Son on 18 December 1988. She collapsed at work on 5 October 1991 and was taken to North Tyneside General Hospital and was then transferred to Preston Hospital, both being hospitals of the First Defendant. Electroencephalograms were taken and the report made on her suggested a liability to primary generalised epilepsy. No CT scan was taken and she was discharged on 10 October 1991. Her condition deteriorated and on 12 December 1991 she became very ill and was taken to the Royal Victoria Infirmary in Newcastle for a CT scan. This showed two brain tumours. She was taken to the Newcastle General Hospital, a hospital of the Second Defendant, where an operation was to have been performed on her on 15 December 1991 at 10 a.m. but she died 4½ hours before.

The coroner required a post mortem examination to be carried out to determine the cause of death. Dr. Robert Perry, a consultant neuropathologist at Newcastle General Hospital, was asked by the Coroner to carry out the autopsy. It is not in dispute that Dr. Perry was employed for a fee as an independent consultant. The autopsy was performed on 16 December 1991 in the course of which Dr. Perry removed the brain and fixed (or preserved) it in paraffin. In his report to the Coroner he summarised the cause of death thus:

"Death was due to:

1a Brain-stem herniation due to

1b a multi-focal brain tumour.

(Probable terminal haemorrhage into the tumour cavity - natural causes)"

Following that report the Deceased's body (minus the brain) was returned to the Deceased's family for burial and was buried.

Dr. Perry was not required by the Coroner to carry out a histological examination of the tumours. However it was Dr. Perry's normal practice to undertake histological tests and he intended to do so in due course. That practice was not followed and that intention was not carried out in the present case. The brain was delivered to the Newcastle General Hospital by Dr. Perry for storage. But when by letter dated 29 September 1993 the Plaintiffs' solicitors asked the Department of Neuropathology at the hospital for the histology relating to the tumours, they were told by Dr. Perry by letter dated 12 November 1993 that no report additional to the post mortem report was requested by the Coroner within 12 months of the autopsy and that they had almost certainly disposed of any material which they had. The solicitors wrote again on 25 February 1994 asking if paraffin blocks were available, but on 9 March 1994 Dr. Perry confirmed that the department did not have paraffin blocks from the autopsy. Miss Searl, exhibiting the correspondence to her Affidavit, commented that the requests of the Plaintiffs' solicitors could not be complied with since there had not in fact been any histological examination of the tumours nor was the brain by that time extant.

On 5 October 1994 the Plaintiffs commenced these proceedings. Immediately before that letters of administration to the Deceased's estate had been take out by the Grandmother. The Plaintiffs sued the First Defendant in negligence. Their case is that if the tumours had been detected in October or November 1991 by a routine CT scan, the Deceased would have survived if the tumours were benign; if they were malignant, she would probably have died, but the pain which she suffered could have been ameliorated with radio-therapy. It was therefore important for the Plaintiffs to discover whether the tumours were benign or malignant. Mr. Hone told us that the Second Defendant was originally joined because it was assumed that histological specimens would have been taken, and it was sought to obtain discovery and production of the specimens from the Second Defendant. That is surprising in the light of the correspondence to which I have referred and which preceded the commencement of proceedings.

I find it difficult to discern from the existing Particulars of Claim what cause of action was being asserted against the Second Defendant. But that is unimportant as it is well-established that if a pleading can be saved from striking out by an amendment which shows that the plaintiff has a proper cause of action, the Court will allow the pleading to be so amended. The Plaintiffs, when faced with the application to strike out, applied for leave to amend the Particulars of Claim. They wish to make the following allegations against the Second Defendant:

"2 ... The Plaintiffs' case against the Second Defendants is that they failed....to keep and preserve the brain of the Deceased pending further investigation or to take a section of the brain tumours (which seems almost unimaginable). It is now asserted that the brain of the Deceased is no longer extant. That deprives the Plaintiffs of definitive proof that the brain tumours concerned were benign rather than malignant. The Plaintiffs accordingly rely upon the maxim omnia praesumuntur contra spoliatorem to the effect that the evidential burden is shifted to the Second Defendants to prove that the tumours were malignant.

.......

10. Further or alternatively, the Second Defendants either failed to keep and preserve the brain of the Deceased pending further investigation or to take sections of the brain tumours for histology (which is almost unimaginable).

10A. The Plaintiffs claim as the next of kin of the Deceased and assert that the Second Defendants were gratuitous bailees and were not entitled to destroy, lose, convert or otherwise wrongfully interfere with the brain of the deceased. In either event, the Second Defendants have deprived the Plaintiffs of being able to prove definitively that the brain tumours found in the Deceased were benign and that the Deceased's life could have been saved by early surgery. The Plaintiffs will rely on the maxim omnia praesumuntur contra spoliatorem to shift the evidential burden of proof onto the Defendant to prove that the two brain tumours identified in the brain of the Deceased were malignant rather than benign."

The pleading ends with a general claim for damages exceeding £5,000 and interest, and Mr. Hone told us that claim applied to the Second Defendant as well as the First Defendant.

On 17 January 1995 the Second Defendant applied to strike out the Plaintiffs' claim against it. The First Defendant took no part in the hearing before the District Judge or in the subsequent appeals. The District Judge took the view that there is no property in a dead body and no duty on a hospital to preserve parts of a body indefinitely after a post mortem and inquest had been concluded. She therefore struck out the claim and refused leave to amend. On appeal by the Plaintiffs the Judge agreed with the District Judge.

Before us Mr. Hone has rightly reminded us that it is only in plain and obvious cases, where the legal basis of the claim is unarguable or almost incontestably bad, that the court will strike out the claim. He submitted that the present case raises an important question of law, the Plaintiffs' case on which cannot be described as unarguable or almost incontestably bad. He described that question as whether it remains established law that there is no property in a dead body or part of a dead body so that personal representatives of a deceased cannot maintain a cause of action in respect of human tissue. That was modified before us, as he accepted that the Deceased's brain was almost certainly destroyed before the Grandmother became the Administratrix, and on the primary way in which he put his case, viz. in conversion, it is trite law that a person has title to sue if and only if he has at the time of conversion either actual possession or the immediate right to possession. He acknowledged that the Plaintiffs were claiming as the Deceased's next of kin and that is of course how the case is pleaded in para. 10A.

As the question of law as framed by Mr. Hone indicates, in the present state of the English authorities there is no property in a corpse (see Williams v Williams (1880) 20 Ch. D. 659 at 662-3 and Clerk & Lindsell on Torts 17th ed. (1995) para. 13-50). However that bare statement needs some qualification.

First, as is stated in Clerk & Lindsell (ibid.), "the executors or administrators or other persons charged by the law with the duty of interring the body have a right to the custody and possession of it until it is properly buried." In the present case there were no executors and there was no administratrix until October 1994, long after the body of the Deceased was buried. The other persons who are charged by the law with the duty of interring the body include, for example, the parent of an infant child who dies where the parent has the means to do so (see Clarke v London General Omnibus Co. Ltd. [1906] 2 KB 648 at 659 and Halsbury's Laws 4th ed. para 1017), but I am not aware that there is any authority that there is such a duty on the next of kin as such. If there is no duty, there is no legal right to possession of the corpse. However even if that is wrong and the next of kin do have some right to possession of the body, there is no authority that right is otherwise than for the interment or other proper disposition of the body.

The second qualification is also to be found in Clerk & Lindsell (ibid.) where it is said: "Once a body has undergone a process or other application of human skill, such as stuffing or embalming, it seems it can be the subject of property in the ordinary way; hence it is submitted that conversion will lie for a skeleton or cadaver used for research or exhibition, and the same goes for parts of and substances produced by, a living person." Mr. Hone relies on the tentatively expressed proposition in the first part of that statement, the authority for which is said to be Doodeward v Spence (1908) 6 C.L.R. 406. That case involved the preserved foetus of a two-headed child, still-born 40 years previously, which the appellant had purchased. He sought to recover it from the police so that he could exhibit it for gain. He succeeded in an action in detinue. In the High Court of Australia Griffith C.J. at p.413 pointed out that it was not unlawful to possess a mummy or a prepared skeleton or a skull or other parts of the human body, and he referred to the many collections of anatomical and pathological specimens formed and maintained by scientific bodies. He stated at p.414 that "so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property." He expressed the view that "when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial." He said that some work and skill had been bestowed on the foetus and that it had acquired an actual pecuniary value, and so an action in detinue would lie. Barton J. was prepared to agree that the action did lie only in relation to a still-born foetus, and did not wish to cast the slightest doubt on the general rule that an unburied corpse was not the subject of property. Higgins J. dissented, being of the view that no one could have property in another human being, live or dead. Doodeward v Spence is therefore not a decision establishing the proposition in Clerk & Lindsell. However I am prepared to accept that proposition is properly arguable, particularly in the light of the academic writings to which Mr. Hone referred us (Paul Matthews, Whose Body? People as Property, 1983 Current Legal Problems pp. 193ff., Palmer on Bailment 2nd ed. (1991) pp. 9ff. and Roger Magnusson, Proprietary Rights in Human Tissue, in Interests in Goods edited by Palmer and McKendrick (1993) pp. 237 ff.)

Does this mean that it is arguable that when Dr. Perry fixed the brain in paraffin, he thereby transformed it into an item the right to possession of which or the property in which belonged to the Plaintiffs? For my part, I do not think so. The removal of the brain was lawfully performed in the course of the post mortem which at the Coroner's request Dr. Perry had undertaken to determine the cause of the Deceased's death. Dr. Perry was under an obligation imposed by Rule 9 of the Coroners Rules 1984 to make provision for the preservation of material which in his opinion bore upon the cause of death, but only for such period as the Coroner thought fit. It is not alleged that Dr. Perry was in breach of that obligation, and once the cause of death had been determined by the Coroner with Dr. Perry's help and the time for challenge to that determination had passed, there could be no continuing obligation under the Rule to preserve that material. There is nothing in the pleading or evidence before us to suggest that the actual preservation of the brain after the post mortem was on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or with preserving a human freak such as a double-headed foetus that had some value for exhibition purposes. There was no practical possibility of, nor any sensible purpose in, the brain being reunited with the body for burial purposes. Mr. Hone accepted that organs would not usually be preserved by the pathologist who carries out a post mortem and that if Dr. Perry had disposed of the brain without fixing it in paraffin, the Plaintiffs would have no cause for complaint. I do not see how the fact that the brain was so fixed rendered it an item to possession of which the Plaintiffs ever became entitled for the purpose of interment or any other purpose, still less that the Plaintiffs ever acquired the property in it.

Mr. Hone told us that the Plaintiffs wished to discover the answers to a number of questions, including why the brain was delivered to the hospital laboratory for storage and what were the relevant protocols or procedures of the hospital laboratory as to the period for which human tissue was to be stored. But the fact that a plaintiff would like more information from a defendant than the plaintiff has does not justify the bringing of an action against that defendant unless it is a case (which is not suggested here) to which the principle of Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133 applies. Further, even if the hospital laboratory protocols were not followed (and there is absolutely nothing to suggest there was such a contravention), I cannot see how that breach of internal rules could help the Plaintiffs.

I return to the specific way in which the Plaintiffs' case is sought to be pleaded. The primary claim is in conversion. But as next of kin they have not shown and cannot show that they had actual possession or the immediate right to possession at the time the brain was disposed of. They claim in bailment, but they acknowledge that the only bailment of the brain was not by them but by Dr. Perry to the Second Defendant. They claim a wrongful interference with the brain, but they have not shown and cannot show as next of kin the possession or right to possession or ownership of the brain or that anything done by the Second Defendant was wrongful. They claim in negligence, but I cannot see how the Second Defendant in storing the brain at Dr. Perry's behest can be said to owe a duty of care to the Plaintiffs. I would add that I am far from persuaded that it would be right to impose a duty on hospitals to retain tissue removed in a post mortem against the possibility that it might be material evidence in civil litigation commenced at some future time.

Finally I should briefly refer to the maxim omnia praesumuntur contra spoliatorem, appearing as it does more than once in the Plaintiffs' pleading. Mr. Hone said that the maxim meant that all things are presumed against the interests of a party who destroys goods. That is a mistranslation. A spoliator is a wrongdoer. Thus in Armory v Delamirie (1772) 1 Stra. 505, the servant of the defendant goldsmith to whom the plaintiff had handed a piece of jewellery wrongfully took out the jewels and refused to hand them back to the plaintiff. The defendant was held liable to the plaintiff for the greatest value which the jewels might have. But the maxim is of no assistance to the Plaintiffs unless and until they can establish that the Second Defendant is a wrongdoer. This the Plaintiffs have not done and cannot do.

For these reasons I would dismiss this appeal.

LORD JUSTICE THORPE : I agree.

LORD JUSTICE BUTLER-SLOSS : I also agree.

Order: appeal dismissed with costs, save legal aid taxation for the appellants; section 18 order; leave to appeal to the House of Lords refused.