Balfour+Manson LLP act as Edinburgh agents on behalf of the pursuer in this case, which involved the deposit of sperm samples with the defenders Cryogenic Storage Facility. He required to do so before having treatment for testicular cancer which, he was advised would make him infertile. He preserved his sperm in order that he would still have the chance to become a father. The pursuer married and requested that his stored sperm be transferred so that he and his wife could undergo IVF. He was told that there had been a malfunction with the storage facility. He was initially advised that his samples could have been damaged thus reducing his chances of conception and increasing the risk of Chromosomal abnormalities, miscarriage and birth defect. In the circumstances, the pursuer and his wife decided not to proceed with IVF. The pursuer claimed damages from the defenders for distress, depression and loss of autonomy on the basis that the decision he had made was a reasonable one. His case was presented as a claim for mental injury arising out of property damage and breach of contract and, secondly, for pure mental injury in delict. 
Similar cases have previously proceeded in England but this is the first Scottish case of its kind. The defenders in this case did not accept that the decision in the English case of Yearworth and others v North Bristol NHS Trust, decided in 2009, was applicable or binding in Scotland. That case established that patients in England who suffered loss of their samples due to the negligence of their treating hospitals were entitled to bring a claim for distress, psychiatric injury and loss arising from that negligent failure.
In the present case, the defenders took the matter to a Legal Debate where they sought dismissal of the action on the basis that the pursuer’s pleadings failed to disclose a cause of action relevant in law, or which could be relevant, for recovery of damages.  Following an eight day hearing before Lord Stewart in May 2013 a judgement was issued in December. The pursuer succeeded in obtaining a Proof before Answer without any aspect of his claim being excluded from that Hearing. 
To read the full court decision please click here
If you have any queries or require advice around this matter please contact Ann Logan.