Vol 22, 2013 Annals of Health Law 395
DUTY TO WARN OF THE RISK OF HIV/AIDS
outside the relationship between the parties, such as the impact of the
potential duty of care on other legal obligations, the legal system and the
society generally. The observation of Lord Bridge in the leading English
case of Caparo Industries PLC v. Dickman shows that there is not much
difference between the Canadian and English approach to analysis of the
duty of care.70 For historical reasons, Nigeria and other common law
African countries, whose law of negligence is relatively embryonic, are
likely to follow the Cooper / Caparo framework above.71
Applying the duty frameworks above to the context of HIV/AIDS, it is
relatively easy to establish the foreseeability of harm. It is reasonable to
expect that a physician, sure of his or her patient’s HIV/AIDS diagnosis,
would enquire about the patient’s sexual or needle sharing partner and,
where known, would inform that partner of the patient’s HIV/AIDS
infection. In other words, a physician could reasonably foresee that non-
disclosure of a patient’s HIV/AIDS status might harm the patient’s partner.
A physician would have a hard time proving that an HIV/AIDS patient’s
partner’s risk of infection was not foreseeable. As Reisner v. Regents of
University of California made clear, it is immaterial whether the partner is
both unknown and unidentifiable.72 In that case, the appellant, who became
infected with HIV virus as a result of sexual intimacy with his girlfriend,
sued her doctor for not disclosing to her that she had received tainted blood
during a blood transfusion and was HIV positive.73 Appellant did not claim
that the physician owed him a duty to be warned.74 Instead, he argued that
had his girlfriend been warned about her HIV status, she could have taken
precautions against transmitting the disease to him or given him notice so
he could protect himself.75 Because appellant’s risk of exposure to HIV
through sexual intimacy with his girlfriend was foreseeable, the court held
the doctor liable because his duty extends to appellant notwithstanding the
70. Caparo Indus. Plc. v. Dickman,  2 A. C. 605 (appeal taken from H.L.) (“What
emerges is that, in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between the party owing the
duty and the party to whom it is owed a relationship characterized by the law as one of
“proximity” or “neighbourhood” and that the situation should be one in which the court
considers it fair, just and reasonable that the law should impose a duty of a given scope upon
the one party for the benefit of the other.”).
71. See GILBERT KODILINYE, THE NIGERIAN LAW OF TORTS 38-89 (1982) (a chapter
72. Reisner v. Regents of Univ. of California, 31 Cal.App.4th 1195, 1197 (1995).
73. Id. at 1195.
74. Id. at 1199.