Vol 22, 2013 Annals of Health Law 393
DUTY TO WARN OF THE RISK OF HIV/AIDS
Home Office v. Dorset Yacht Co Ltd.58 In that case, the House of Lords
reversed the Appeals Court, holding that the Home Office was liable for
damage caused to the plaintiffs’ yacht by escapees from its borstal home on
the ground that borstal officers owe a duty to exercise reasonable care to
prevent boys under their control from causing damage to private property.59
On the strength of this reasoning, O’Dair concluded that an English court
would impose a duty of disclosure on physicians, but only as to the
“carrier’s current partner and any child of that person infected in utero.”60
Apart from Tarasoff, a duty to warn of the risk of HIV/AIDS infection
could be deduced by analogy from a line of cases on contagious diseases in
which such duty had been established.61 In these cases, as in Tarasoff, the
decisive factor was foreseeability of harm to a third party, rather than the
existence of physician-patient relationship and confidentiality conundrum.62
But care should be taken in the extrapolation of contagious diseases cases to
HIV/AIDS scenario. In contrast to contagious diseases, HIV/AIDS is not
transmitted by social contact, nor can a sufferer claim inability to act
responsibly towards third parties in order to avoid the spread of the virus.
This is unlike a person suffering from a contagious disease whose
responsible individual efforts might not necessarily translate to protection
for others. Hence, O’Dair observed that the “contagious disease case . . . do
not go so far as to make the doctor liable for the socially irresponsible
behaviour of his patient... they cannot be decisive in the A.I.D.S.
context”.63 Therefore, since neither Tarasoff nor the jurisprudence on
contagious diseases provides a convincing analogy for the existence of a
duty to warn in the context of HIV/AIDS, the issue ought to be considered
from a principled standpoint that is, the mechanics for determining the
58. See The Home Office v. The Dorset Yacht Co. Ltd.  A. C. 1004 (H.L.) (held
that the Home Office was liable for damage caused to the plaintiffs’ yacht by escapees from
its borstal home on the ground that borstal officers owe a duty to exercise such care as is
reasonable to prevent boys under their control from causing damage to private property).
59. See id.
60. O’Dair, supra note 38, at 239.
61. See Bradshaw v. Daniel, 854 S.W.2d 865, 872 (Tenn. 1993) (held that a physician
who treated a woman’s husband for Rocky Mountain Spotted Fever owed a duty to warn the
woman of the risk of contracting the disease, regardless of non-existence of a physician-patient relationship with her); Skillings v. Allen, 173 NW 663, 664 (Minn. 1919) (a
physician who failed to advise parents that they were in danger of contracting scarlet fever
from their daughter, patient of the physician, was found liable for negligence); Jones v.
Stanko, 160 N.E. 456, 458 (Ohio 1928) (held that a physician who treated a patient afflicted
with smallpox - a contagious disease- had a duty to give notice of the existence of the
disease to other persons who are known by the physician to be in dangerous proximity to the
62. Tarasoff, 551 P.2d at 342.