Doodeward v Spence: 1908

(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.

Griffith CJ, Barton J, Higgins J
[1908] 6 CLR 40
Cited by:
ConsideredDobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
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 . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
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.
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Wills and Probate

Leading Case

Updated: 11 November 2021; Ref: scu.195012