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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