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GAZETTE
JUNE 1988
Public and it was difficult for
anyone not to deny that she or he
knew or should have known of the
risks. Moreover there had obviously
been a s u f f i c i e nt deg r ee of
proximity between Alack and the
deceased for a duty of care to exist.
The policy arguments put forward
on her behalf carried no weight.
The law was willing to look closely
at sexual relations for o t her
purposes (such as affiliation and
divorce) and should certainly not
shrink from doing so in the context
of a disease as disastrous as Aids.
The overriding policy of the law
should be to prevent the spread of
the virus and that policy was best
served by the imposition of liability
on those who irresponsibly infected
others. Alack had therefore owed
the deceased a duty of care.
Counsel for the parties seemed
to agree that if a duty existed it
would have required full disclosure
by the appellant of her sexual
history but Lord Brandon decided
that she could have discharged the
duty rather more simply. She had
only to point out to Alas the
existence of the risk — a minimal
degree of disclosure — and suggest
the use of a condom. That would
have been s u f f i c i e nt in t h is
instance. However, the deceased
had been under a corresponding
responsibility. Counsel for the
respondent had argued otherwise.
Unlike the appellant, Alas had not
known of her previous affairs and
counsel con t ended t hat there
should therefore be no reduction in
the damages on account of contri-
butory negligence (the third ground
of appeal). But Lord Brandon
declined to draw any distinction on
the basis of actual knowledge. Alas
should have realised that Alack, a
wealthy, unmarried woman of 26,
was likely to have had some
previous sexual experience.
Reasonably foreseeable
The possible communication of
Aids was reasonably foreseeable to
them both and they should both
have appreciated the risk. The
appellant was in breach of her duty
of care and the deceased's failure
to use a condom of his own motion
amounted to contributory negli-
gence. For apportionment purposes
they shared responsibility equally.
It could not be said that the
behaviour of either had had a
greater causative effect than the
other's. Nor was it possible to
differentiate be t ween t hem in
terms of culpability. That could be
a difficult task because it involved
a judgment more moral than legal.
Here t he de c ea s ed and t he
appellant acted together and there
was serious fault on both sides.
Lord Brandon considered that any
more detailed enquiry was not
necessary.
Ex turpi causa
Miss A l ack 's final grounds of
appeal were based on the maxims
Volenti non fit injuria
and
Ex turpi
causa non oritur actio.
These
arguments did not impress Lord
Brandon.
Volenti
did not apply
except where a plaintiff had actual
k n ow l e d ge
of
all
r e l evant
c i r c ums t a n c es and
w i l l i n g ly
accepted the risk. That was not so
here; Alas did not know of Alack's
earlier affairs and it had not been
established that he had in fact read
t he DHSS literature on Aids.
Neither did
ex turpi causa
assist the
appellant's case. This defence was
based on public policy, the policy in
question being the upholding of
public morality. But public morality
changes from age to age and the
argument that the claim should fail
because the deceased was a
married man who contracted Aids
through an adulterous relationship
was not in accordance with today's
moral values. To deny damages to
someone injured in adultery (as
opposed to some criminal activity)
wou ld be to apply standards
belonging to a by-gone age and not
gene r a l ly
a c c e p t ed
today,
regrettable though that might be.
Ex turpi causa
was out of date in
this context.
The overall result therefore was
that the appeal was allowed in part.
Miss Alack remained liable to Mrs.
Alas but t he amount of t he
damages was reduced by half for
contributory negligence on the part
of Alas.
Questions of causation were not
raised .by the moot but in practice
they could present a plaintiff w i th
grave difficulties. The possible
incubation period of Aids is long
and a victim who had had several
relationships in that time might
simply be unable to establish from
whom he contracted the virus. If he
cleared this hurdle he would still
have to show that he would not
have caught the disease if the
defendant had discharged the duty
of care (though on that point he
would derive some assistance from
McGhee -v- NCB
2/6-[1972] 3 All
E.R. 1008). Even where these
problems were not present, pro-
c eed i ngs m i g ht be po i n t l e ss
because of the inability of the
proposed defendant to satisfy a
judgment. However, the increase in
the incidence of the Aids virus
seems certain to continue. As it
does, it becomes correspondingly
more likely that the courts will
sooner or later be required to deal
w i th issues of civil liability arising
from the spread of the disease.
•
This article first appeared in the
New Law Journal
of 14 August,
1987, and is reprinted by kind per-
mission.
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