Re 'E' v Australian Red Cross Society, Re; Australian Red Cross Society New South Wales Division and Central Sydney Area Health Service (1991) 31 FCR 299
Tort; Negligence; breach of the duty of care; assessing the need to prevent harm; factors; likelihood of harm.
Facts: A blood donor gave blood to the Australian Red Cross Society in October 1984. At that time the Red Cross did not test for hepatitis B core antibodies. Scientific opinion was divided at the time on whether such tests might indicate the presence of the AIDS virus HIV (for which there was no direct test). The untested blood was given to E and as a result he developed AIDS. Among other claims, E sued the Red Cross in Negligence, claiming they should have carried out the available tests on the blood.
Issue: Had the Red Cross breached its duty of care to E by not carrying out the available tests on donated blood?
Decision: In the circumstances prevailing at the time the Red Cross had not breached its duty of care.
Reason: The court held that it was proper to take into account the fact that testing blood donations would have caused a shortage in the supply of blood. A reasonable person would weigh the concern for contamination against the detriment to the wider community that would ensue from reducing the blood supply. This is one of the factors to be weighed in deciding whether or not there has been a breach of a duty of care. Considering the totality of the circumstances, the Red Cross had acted reasonably when not subjecting all blood donations to the anti-hepatitis B core tests. Note: This case also illustrates the importance of considering the available medical knowledge and state of accessible technology at the time when the breach is alleged to have occurred, rather than using hindsight.