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Vanuatu Customs Act 2013

190 Property in goods
(1) The State has the property in forfeited goods or in any deposit made under section 184 or
in the proceeds of sale under section 185.

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 Can living human beings be owned?
Somerset’s Case, Somerset v Stewart: 1772
Habeas Corpus Granted to Slave

Somerset, a slave purchased by the defendant in Virginia, had been brought to England, but
then confined on board a ship. He brought a writ for habeas corpus.
Held: The plea in defence was insufficient. Lord Mansfield ordered an African slave to be
freed upon finding the custodian’s return insufficient. At common law a petitioner’s status as
an alien was not a categorical bar to habeas corpus relief, and the common law recognised no
status of slave, though some colonies might.
Lord Mansfield held that ‘The state of slavery is of such a nature, that it is incapable of being
introduced on any reasons, moral or political’. ‘Chattel slavery’ as ‘ ‘full ownership of
another human being’ had been unlawful under Imperial legislation dating back to colonial
times.

Lord Mansfield, Lord Holt

 Can dead human bodies be owned?

Hayne’s case (1614) 12 Co Rep 113
In Hayne’s case, the accused was convicted of theft for digging up dead bodies and stealing
the sheets in which the bodies were wrapped. 10 The court held that the sheets remained the
property of the owners who placed them around the dead bodies as a dead body cannot own
property.11

 Can dead human bodies worked on for preservation or experimentation

be owned?
Doodeward v Spence (1908) 6 CLR 406

Facts
 A stillborn baby with two heads is preserved by a doctor who displays it in his office.

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 Later, the doctor dies and there is a question of whether the preserved corpse can be seen as
property.

Issue
 Can there be property rights in a corpse?

Held
 Yes, but only if skill has been involved in the preservation of the corpse.
Quote
 “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.”

 Can a preserved brain be owned?

Dobson 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 appealed an order striking
out their claim on the baiss that it disclosed no reasonable cause of damage.

Held: The appeal failed. Next of kin have no right to regain possession of a deceased’s body
part which had been removed for autopsy. There was no ownership of a body after death. The
autopsy process did not transform a body part into an object capable of ownership. The claim
was pleaded in conversion, bailment and wrongful interference with the brain, and the
plaintiffs could not establish that they had the right to possession at the time the brain was
disposed of. The plaintiff’s desire to discover exactly what had happened to all the body parts
was not a sufficient reason for litigation.
Where there is no executor the duty to take possession of and dispose of the body of the
deceased falls upon the administrators of the estate, but they may not be able to obtain an
injunction for delivery of the body before the grant of letters of administration
Peter Gibson LJ, Butler-Sloss LJ, Peter Gibson LJ

 Can stored body parts be owned?

R v Kelly and Lindsay [1998] 3 All E.R. 741

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Theft of body parts used as anatomical specimens

Facts

The first defendant (K) had access to the Royal College of Surgeons to take drawings of
anatomical specimens. The second defendant (L) worked at the college. K asked L to remove
a number of human body parts from the college. The body parts were then taken to K’s home
where K made casts from them. The body parts were ultimately buried in a field near K’s
home.

Issue

K was found guilty of theft. The trial judge found an exception to the principle established in
common law that a corpse, or parts of a corpse, were not capable of being property (R v
Sharp (1857) Dears & Bell 160). The trial judge held that there was property in a corpse or
parts of a corpse when they have been preserved for medical or scientific examination or for
the benefit of medical science. On appeal, K contended that there was no property in human
body parts and therefore they could not be stolen.

Held

The Court of Appeal dismissed the appeal. The exception expressed to the longstanding
common law rule regarding property in a corpse as relied upon by the trial judge and first
expressed in the Australian case of Doodeward v Spence 6 C.L.R. 406 was valid. When a
person applies lawful skill to a human body or part thereof which is in his lawful possession
it acquires usefulness which distinguishes it from an interred corpse and that person therefore
acquires a right to retain possession of it. Parts of a corpse are therefore capable of being
property within the meaning of section 4 of the Theft Act 1968.

 Can tissue for DNA sampling, eg hair, skin be owned?

Pecar v National Australia Trustees Ltd [1996] NSWSC 2518
○ The plaintiff wished to establish that he was the natural child of Ivan Ulrich, who had died
interstate
○ He sought an order from the Supreme Court authorising a medical expert to examine tissue
of the deceased held by a pathology business
○ Bryson J considered the reference to ‘any property’ in rule of the Supreme Court Rules
(NSW) which relates to the inspection of property for the purposes of gathering evidence
○ The courts rules allow an order ‘for the purpose of enabling the proper determination of
any cause or matter relating to ‘the taking of samples of any property’.

 Can stored sperm be owned?

Yearworth 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.

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Each claimant was undergoing chemotherapy which would prevent them providing future
samples. They appealed a finding that they they had no losses, based on the suggestion that
the 1990 Act so circumscribed the management of the samples as to deny any assertion of a
proprietary interest in the samples. They claimed psychological injury and losses.

Held: The appeal was allowed. The hospital owed the claimants a duty of care. The concept
of ownership is no more than a convenient global description of different collections of rights
held by persons over physical and other things. The men owned the specimens. The Act itself
required expicit consent from the donors for various acts, and this itself acknowledged rights.
Doodward was framed as an exception to the common law rule, and was not a good basis for
the modern law. The common law needed re-examination.

The court considered and set out the law of bailment as it might apply to the case. The
defendants were bailees.

 Can extracted sperm be owned?

Edwards: Re Estate of Edwards [2011] NSWSC 478
The plaintiff’s husband was fatally injured in a workplace accident and his body was brought
to a hospital where sperm was then extracted from it. The sperm was then transferred to a
laboratory of a provider of assisted reproductive technology (ART) which stored it in a way
suitable for future use in assisted reproductive treatment. The plaintiff, who became the
administrator of her late husband’s estate, sought a declaration that she was entitled to
possession of the sperm. In the circumstances of this case, she was not, under the Assisted
Reproductive Technology Act 2007 (the Act) permitted to use that sperm to obtain ART
treatment in New South Wales.

 Can water in rivers and sea be owned?

Young (John) & Co v Bankier Distillery Co. [1893] AC 691
A mine had been discharging pit water into a stream, which polluted it to such an extent that
it was unfit for the production of whisky. The Court held that a riparian owner on the banks
of a natural stream is entitled as a natural right to have the stream flow past his or her land
without sensible alteration to its character or quality, and that the distillery was therefore
entitled to an injunction preventing the discharge.

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Bernstein v Skyviews and General Ltd [1978] QB 479

Trespass – No right of privacy in airspace

Facts

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 Skyviews and General Ltd (S) took an aerial photograph a number of houses, including
Coppings Farm, Bernstein’s (B) country home. S then purported to sell the photograph to B.
B claimed damages for trespass onto his airspace and, or alternatively, invasion of privacy for
entering the air space above his property and taking the photograph without his consent.

Issue

The issue in question was whether a person has the right to privacy in airspace.

Held
There was no trespass. An owner of land has rights in the air space above his land only to
such a height as is necessary for the ordinary use and enjoyment of his land and the structures
upon it. B had no right to privacy in airspace and accordingly there had been no infringement
of B’s rights in the airspace above his property. It would be absurd to take the latin maxim
cujus est solum, ejus est usque ad coelum et ad inferos (whoever owns the soil it is theirs up
to heaven and down to hell) literally as it would mean that any time a satellite passed
overhead it would be trespassing. A property owner’s rights in this case must therefore
restricted to such height as is necessary for the ordinary use and enjoyment of his land and
the structures upon it, and to declare that above that height he had no greater rights in the
airspace than any other member of the public.

Victoria Park v Taylor (1937) 58 CLR 479

Facts
 Victoria Park Racing (VPR) owned Victoria Park, a racing track which charged admissions
to people who placed bets on the races.  This racecourse was surrounded by a very high
fence.
 Mr Taylor set up a platform in his property and charged people a certain amount to view the
Victoria Park races from it.
 Attendance at the ground dropped significantly.
 VPR sued for trespass.

Issue
 Are there property rights in a spectacle?
Held
 There can be no property rights in a spectacle.
 Any profit made from a premise is made so by charging entrance to an area.
 A person should not have to divert their eyes from something as you walk past; there
was little difference in this case.
 The plaintiff could complain that the actions diminish their profits. However, this is
little different to Taylor setting up a racecourse next door.

Quotes
“I find difficulty in attaching any precise meaning to the phrase “property in a spectacle.” A
“spectacle” cannot be “owned” in any ordinary sense of that word. Even if there were any
legal principle which prevented one person from gaining an advantage for himself or causing
damage to another by describing a spectacle produced by that other person, the rights of the

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latter person could be described as property only in a metaphorical sense. Any
appropriateness in the metaphor would depend upon the existence of the legal principle. The
principle cannot itself be based upon such a metaphor.”
(Latham CJ at page 497)

“If English law had followed the course of development that has recently taken place in the
United States, the “broadcasting rights” in respect of the races might have been protected as
part of the quasi-property created by the enterprise, organization and labour of the plaintiff in
establishing and equipping a racecourse and doing all that is necessary to conduct race
meetings. But courts of equity have not in British jurisdictions thrown the protection of an
injunction around all the intangible elements of value, that is, value in exchange, which may
flow from the exercise by an individual of his powers or resources whether in the
organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour.
This is sufficiently evidenced by the history of the law of copyright and by the fact that the
exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in
English law as special heads of protected interests and not under a wide generalisation.”
(Dixon J at pages 508-509)

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