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Civil Liability for Communicat ion
of A I DS - a Moot Point
by
Kr i s t in L i t ton
and
Richard J ame s*
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.
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
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
Kristin Litton and Richard James
are Lecturers in Law at the
Polytechnic of Wales.
145