References: [1908] 6 CLR 40
Coram: Griffith CJ, Barton J, Higgins J
Ratio: (High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and 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. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt 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, but subject, of course, to any positive law which forbids its retention under the particular circumstances.’
Higgins J (dissenting) said that no one could have property in another human being, live or dead.
Jurisdiction: Australia
This case is cited by:
- Considered – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA (Times 15-Jul-96, Gazette 29-Aug-96, [1997] 1 WLR 596, Bailii, [1996] EWCA Civ 1301, (1997) 33 BMLR 146,, [1997] 1 FLR 598, [1997] 8 Med LR 357, [1996] 4 All ER 474, [1997] Fam Law 326, [1997] 2 FCR 651)
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . . - Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD ([2004] EWHC 644 (QB), Bailii, Times 12-Apr-04, (2004) 77 BMLR 145, [2004] 2 FLR 365, [2004] 3 FCR 324, [2004] Fam Law 501, [2005] 2 WLR 358, [2005] Lloyd’s Rep Med 1, [2005] QB 50)
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference. - Cited – Yearworth and others v North Bristol NHS Trust CA (Bailii, [2009] EWCA Civ 37, Times, WLRD, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118)
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
(This list may be incomplete)
Leading Case
Last Update: 06 April 2017
Ref: 195012
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