The Gazette 1988

Civil Liability for Communicat ion of A I DS - a Moot Point

The f i nal of t he Observer Na t i onal Moo t i ng Compe t i t i on f or 1986/87, organised this year by the Polytechnic of Wales, was he ld at Card i ff on Ju ly 10. The moo t, en t i t l ed Alas -v- Alack, os tens i b ly an appeal t o t he Court of Appea l, was heard by Lord Brandon of Oakb r ook, who very k i nd ly f ound t he t ime f or t he purpose f r om his dut i es at t he House of Lords. He ad j udged the Essex I ns t i t u te of Higher Educat i on na r r ow w i nne rs over Newcas t le Po l y t echn i c. The a r gumen ts advanced and Lord Brandon 's dec i s i on are of cons i derab le interest.

brought the case to the Court of Appeal. Before Lord Brandon her first ground of appeal was that the finding that the communication of Aids to Alas was reasonably fore- seeable to her was not a proper inference from the evidence. It was argued on her behalf that in view of the DHSS figures quoted in the Aids i n f o rma t i on booklet, the possibility that she was an Aids carrier was too remote to be regarded as reasonably foreseeable to her; as a woman who had never had a blood transfusion or taken d r ugs i n t r avenous ly she was outside the high risk groups. Secondly it was contended that even if the foreseeability test was satisfied the existence of a duty of care should nevertheless be denied. Sexual behaviour was a painfully delicate and private part of life, yet the supposed duty would pre- sumably oblige a person to disclose his or her sexual past to a partner. That wo u ld be un r easonab ly difficult and there could therefore be no such obligation since the duty in negligence was merely to take such care as was reasonable. Furthermore as a matter of policy the law should not require an invasion of privacy of this sort. Mathematical unlikelihood However, Lord Brandon was more impressed by the respondent's argument on these points. The mathematical unlikelihood did not necessarily put it beyond the appellant's reasonable foresight that she might be a carrier of the Aids virus. The awful dangers involved — at worst death and at best carriage of the disease for life — were a factor of the utmost importance and that factor was relevant not merely to the nature of the duty of care but also to its creation in the first place. There had been a large-scale governmental campaign to inform and warn the

by Kr i s t in L i t ton and Richard J ame s*

The supposed facts of the case were as follows. Mr. & Mrs. Alas were married in 1976 and had t wo children. Very early in 1987 Mr. Alas had a brief affair w i th Miss Alack, a wealthy single woman of 26. W i t h in t w o mo n t hs he developed Aids and died of an acute form of meningitis six weeks later. His wife was the executrix of his will and brought proceedings aga i nst Mi ss A l a ck c l a i m i ng d ama g es on behalf of her husband's estate under the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of herself and the children under The Fatal Accidents Act 1976. The quantum of damages of each claim was agreed by the parties and the trial confined to the issue of liability. Findings of fact Floodgates J. made the following findings of fact: 1. Alack had had ten sex partners, all single men, in the four years before her affair w i th Alas. She had not had more than one partner at any one time. She had never undergone any medical test for Aids. Neither had she ever had a blood transfusion or taken drugs by injection. She knew from the start of their relationship that Alas was married. 2. Alas did not know of Alack's previous affairs. She did not inform him of them and he did not enquire. He had had no other extra-marital sexual relations. 3. Alas caught Aids from Alack and his death from meningitis was a consequence. Neither of t hem knew that she was a carrier of the disease. During their affair she used a contraceptive pill; he did not use a condom.

4. Shortly before Alas and Alack commenced their relationship a government information leaflet on Aids had been sent to every household in the country and, as explained in the leaflet, a more detailed booklet on the disease was obtainable by post from an address supplied. No better information was then available to the general public. The information contained in t he boo k l et i n c l uded t he following: (a) Aids was communicable through ordinary sexual inter- course. The risk cou ld be reduced by the use of a condom. (b) By the end of October 1986 an estimated 40 , 000 people in the United Kingdom had been infected wi th HIV virus. 548 had developed Aids and of these 278 had died. (c) The total of 548 Aids victims comprised 4 90 homosexual or b i sexual men, 31 peop le ( i nc l ud i ng haemoph i l i a c s) infected as a result of blood transfusions, 8 drug misusers and 19 others. 5. The communication of Aids from Alack to Alas as a consequence of t he ir a f f a ir was r easonab ly foreseeable to Alack but not to Alas. Floodgates J. held Alack liable. She had owed Alas a duty of care under normal negligence principles and had been in breach of that duty. No deduction was made in the damages for con t r i bu t o ry neg l i gence. Mi ss A l a ck t h en

Kristin Litton and Richard James are Lecturers in Law at the Polytechnic of Wales.

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