Six cancer sufferers who lost their only chance of fathering children when a hospital freezer broke down and destroyed their sperm samples were at the centre of an unprecedented compensation claim yesterday.

The six men all gave the samples because of fears that cancer treatment might make them infertile, senior judges were told yesterday.

They were left traumatised when a long-term freezer tank at Southmead Hospital, in Bristol, failed in June 2003. Some are not expected to regain their fertility — one has since died — meaning that the hospital mishap robbed them of their only chance of fathering children.

North Bristol NHS Trust, which manages the hospital, admitted breach of duty, but in March a county court judge dashed the men's hopes of substantial damages payouts. After comparing the sperm samples to hair cut off by a barber and toenail clippings, Judge Jeremy Griggs ruled that the six ceased to have any property rights in their own sperm once it had left their bodies.

As the samples were “out of the body”, their destruction could not be compared to physical injuries suffered because of medical negligence. They fell, therefore, outside the legal remit of traditional “personal injury” claims, the judge decided.

However, in the first case of its kind, lawyers for the six are fighting to overturn the ruling in a case of such importance that it is being heard by two of Britain's most senior judges, the Lord Chief Justice, Lord Judge of Draycote, and the Master of the Rolls, Sir Anthony Clarke, sitting with Lord Justice Wilson.

James Townsend, for the six men, told the court: “This is a grey area but, looked at correctly, we say this is a classic case of personal injury.”

Attacking the comparison between sperm and cut hair and toenail clippings as “not entirely apt”, the barrister pointed out that the sperm had been “living and biologically active, albeit in a suspended state” at the hospital.

The sperm was “awaiting further use” for exactly the same purpose as it would have been had it remained in the men's bodies and, although in the hospital's possession, the samples could only ever be used at the men's direction, he added.

Mr Townsend accepted that, once hair had been cut off or a toenail removed, “that's it” and it ceases to be the property of its original owner. However, he added that it had already been decided that cutting someone's hair without consent could amount to assault, causing actual bodily harm.

He said that it was also “not apt” to compare the sperm with hair deliberately cut off by a cancer sufferer with a view to making a wig if chemotherapy leads to a loss of natural hair. Such a wig, he told the court, would be “no more part of his body than a sweater made of lamb's wool. In effect, the wig is being used as a piece of clothing, perched on the scalp”.

The sperm samples, as “living tissue”, were “quite unlike the hair or toenail analogy”, and Judge Griggs had been wrong to block the six from pursuing damages claims over their destruction, he told the judges.

However, the trust's lawyers argue that nobody owned the sperm samples, which were not capable of amounting to property in the legal sense, and that the six men suffered no personal injury for which they would have a right to claim compensation.

The appeal hearing, which is expected to last two days, continues.

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