The Gazette 1988

GAZETTE

JUNE 1988

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 Ex turpi causa was out of date in this context.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.

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.

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