Abstract
Both claimants were diagnosed as suffering from cancer, and each was advised that their treatment was likely to render them infertile. Accordingly, each deposited a sperm sample with the trust. The samples were preserved at a temperature of minus 196 degrees Centigrade. Over the weekend of 17th–20th May 2002, a failure in the vacuum of the relevant flask caused the temperature within to rise dramatically, by virtue of evaporation of liquid nitrogen from the vessel. This caused damage to the samples.
The claimants did not allege that leakage of the liquid nitrogen was the fault of the trust, but they maintained that the trust was liable for their loss in (1) not installing alarms with auto-diallers, so that prompt action could be taken to correct any problem; and (2) not dividing or splitting the samples so that there was a lower risk of all being destroyed if one flask failed.
The trust argued that the precautions advocated by the claimants were unnecessary and disproportionate because the risk of a catastrophic failure was so low; that this was not common practice at the time; and that the Human Fertilisation and Embryology Authority (HFEA) did not, at the time of this incident, recommend such measures.
The head of the sperm bank, Dr Alan Pacey, who was an acknowledged expert in his field, gave evidence to the effect that in none of the meetings he had attended prior to May 2002, had any question of fitting alarms with auto-diallers, or splitting sperm samples, ever been raised. He was also unaware of any previous catastrophic failure of flasks. He said that the level of nitrogen in each container was regularly checked and, if necessary, topped up. It was his understanding that it would take over 72 hours for a flask to show signs of failing, which would permit remedial action to be taken even if the container was left unattended during a weekend.
Dr Pacey maintained that there was no established practice at the time of equipping containers with alarms and auto-diallers, or of splitting samples. He referred to the response of the British Andrology Society to a consultation document from HFEA, published in October 1998, which made no reference to such precautions. Furthermore, on the last pre-incident inspection of the unit by HFEA, there was no recommendation for either alarms with auto-diallers or split samples. Indeed, such recommendations were not made by HFEA until June 2004, driven partly by this incident and partly by another in Bristol, which was the subject of claims that eventually proceeded to the Court of Appeal (Yearworth and Others v North Bristol NHS Trust – Clinical Risk 2009 15 129).
Expert engineers called by each side were not aware of any literature on similar failures before the date of this incident. They also agreed that staff could not reasonably have known that the vessel in question was failing, and both accepted that reasonable checks had been carried out during normal working hours. The defence engineer said that such flasks (or dewars) had been in use since the 1960s and were still in use at the date of trial. Both experts confirmed that the science of cryopreservation was very much on a learning curve in 2002.
Two distinguished andrology experts, Professor Barratt for the claimants and Dr Tomlinson for the trust, then gave evidence. They too were in agreement that cryopreservation was an evolving science in 2002. Both considered that it was not unreasonable or careless not to have alarms with auto-diallers in 2002, or split samples. Professor Barratt's evidence was to the effect that 80% of sperm banks did not have alarms with auto-diallers in 2002, and he expressly stated that he would not condemn the trust as unreasonable or careless.
Nevertheless, it was argued on behalf of the claimants that the Bolam test did not apply in this situation, and that the court should examine liability from the perspective of bailment, in accordance with the ruling of the Lord Chief Justice in Yearworth: “if a gratuitous bailee holds himself out to the bailor as being able to deploy some special skill in relation to the chattel, his duty is to take such care of it as is reasonably to be expected of a person with such skill”.
It was claimed that since some units had alarms with auto-diallers by 2002, and since it was clear that loss of sperm could result in individuals never being able to father children, the trust ought to have taken additional security steps. Counsel for the claimants maintained that a passage from Munkman on Employers’ Liability (15th Edition) was highly relevant: “the greater the magnitude of the risk and the greater the gravity of the harm should the event occur, the higher is the duty to take precautions, even if they are expensive or difficult to adopt” (paragraph 2.67).
Held: Dr Pacey was a careful, sensible professional who was at all times doing his best to ensure that the samples in his care were safe. The two expert andrologists were very impressive, and their evidence taken together was that it was not unreasonable or careless not to have alarms with auto-diallers fitted in 2002, or split samples. Despite argument to the contrary, Bolam was undoubtedly the right test to apply. Whilst there was some force in the argument that certain units had fitted alarms with auto-diallers by 2002, professional debate had not reached such a stage of clarity and universality of approach in the industry by the time of this incident to mandate these steps. The citation from Munkman was in the context of employers’ liability claims, where grave consequences – namely death or serious bodily injury – could occur. Whilst the loss of sperm samples should not be minimized, it did not equate with either death or serious bodily injury. Although the risk of dewar failure was clearly recognized, resulting in the trust's regular system of checking and topping-up, the likelihood of a sudden failure of a vessel without any warning was so small as to be virtually non-existent. Consequently, practice at the unit in 2002 was reasonable, and accordingly there would be judgment for the trust.
James Townsend (instructed by Foot Anstey) appeared for the claimants. Alexander Hutton (instructed by Beachcroft) appeared for the trust.
Comment
It was reasonably clear that this claim could not succeed under the Bolam principle, which is why the claimant's representatives argued that a higher duty of care should apply to the trust's actions. The County Court was clearly bound by the decision of the Court of Appeal in Yearworth, but effectively the standard to be applied to a gratuitous bailee is along similar lines to that in the Bolam test, namely a duty to take such care of the property as is reasonably to be expected of a person with the relevant special skill. This is a classic example of the need to apply reasonable standards existing of time of the incident to actions of defendants. Had this loss occurred in 2011 in similar circumstances, the legal outcome might well have been different, because knowledge has moved on dramatically in the intervening nine years, not least because of the Bristol and Sheffield incidents.