Reported Decision:
59 NSWLR 639
Court of Appeal
CITATION: Harvey & 1 Ors v PD [2004] NSWCA 97 HEARING DATE(S): 14 October 2003 JUDGMENT DATE:
30 March 2004JUDGMENT OF: Spigelman CJ at 1; Santow JA at 13; Ipp JA at 149 DECISION: Appeal and Cross-Appeal dismissed; Appellant to pay costs of the Appeal and, Cross-Appellant to pay the costs of the Cross-Appeal. CATCHWORDS: NEGLIGENCE - liability of doctors in a medical centre for inadequate counselling to female member of couple at a joint consultation where the couple sought advice as to sexually transmitted disease including HIV preparatory, as known to the doctor, to engaging in unprotected sex and getting married in circumstances where female member was later to be deceived by her prospective husband into believing that he was not HIV positive when he was - relevance of prospective husband coming from a known high risk area for HIV - relevance of test results being provided to female member separately through Receptionist - failure to advise on the statutory requirement for consent to disclosure of test results under s17(2)(b) of the Public Health Act 1991 (NSW) as well as failure to advise as to the manner of disclosure and possibility of discordant results - relevance of inadequate post-test counselling not necessary to decide - effect of s17(2)(b) of the Public Health Act 1991 (NSW) - relevance of informed consent - causation - common sense and two stage approach - cross-appeal for additional costs of second child conceived from a partner, known to be HIV positive, after female member of couple aware of having herself become HIV positive - scope of liability for consequences of negligence and causation aspects - anticipated loss of capacity to care for child after it turns 12 as result of HIV and implications for damages - public policy issues - requirement to mitigate - distinction between legal policy, public policy and legal principle - recovery disallowed for loss of capacity to care for second child after second child no longer able to be cared for by mother. LEGISLATION CITED: Public Health Act 1991 (NSW) s13; s17 CASES CITED: Beck v State of New South Wales [2001] NSWSC 278
BT v Oei [1999] NSWSC 1082
Cattanach v Melchior (2003) 77 ALJR 1312
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
CSR Limited v Thompson [2003] NSWCA 329
Geest plc v Lasinquot [2003] 1 All ER 383
Griffiths v Kerkemeyer (1977) 139 CLR 161
Henville v Walker (2001) 206 CLR 459
Kuwait Airways Corporation v Iraqi Airways Co (Nos. 4 and 5) [2002] 2 AC 883
M R Ex parte Ford; re Caughey (1876) 1 Ch D 521
March v Stramare Pty Ltd (1991) 171 CLR 506
McFarlane v Tayside Health Board [2000] 2 AC 59
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nader v Urban Transport Authority (1985) 2 NSWLR 501
Perre v Apand Pty Ltd…
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- AGLC
- Harvey v PD [2004] NSWCA 97
- Case
- [2004] NSWCA 97
- Decision Date
CaseChat Overview and Summary
The case of *Harvey v PD* concerned an appeal and cross-appeal heard by the Supreme Court of New South Wales, Court of Appeal. The dispute arose from allegations of negligence against a medical centre and its doctor concerning advice provided to a couple regarding sexually transmitted diseases, including HIV, prior to their marriage and engagement in unprotected sexual activity. The female member of the couple subsequently contracted HIV, allegedly due to deception by her prospective husband, who was aware of his positive status and originated from a high-risk area for the disease.
The central legal issues before the court were whether the doctor owed a duty of care to the female member of the couple in a joint consultation, and if so, whether that duty was breached by inadequate counselling regarding HIV testing and disclosure. Specifically, the court considered the adequacy of advice concerning the statutory requirements for consent to disclosure of test results under section 17(2)(b) of the *Public Health Act 1991* (NSW), the manner of disclosure, and the possibility of discordant results. The court also had to determine issues of causation, the scope of liability for foreseeable consequences of negligence, and the extent to which damages could be awarded for anticipated loss of capacity to care for a child.
The court's reasoning focused on the doctor's duty of care to both members of the couple, particularly given the known context of their intention to engage in unprotected sex and marry. It was held that the doctor's failure to adequately advise on the requirements of section 17(2)(b) of the *Public Health Act 1991* (NSW), including the need for consent to disclosure and the implications of discordant results, constituted a breach of duty. The court applied principles of negligence and causation, including a common sense and two-stage approach to causation, to assess the extent of the doctor's liability. Public policy considerations and the requirement for the plaintiff to mitigate their loss were also relevant.
Ultimately, the appeal and cross-appeal were dismissed. The appellant was ordered to pay the costs of the appeal, and the cross-appellant was ordered to pay the costs of the cross-appeal. The court disallowed recovery for the loss of capacity to care for the second child after the child reached an age where the mother's HIV status would no longer be a primary factor in her ability to provide care.
The central legal issues before the court were whether the doctor owed a duty of care to the female member of the couple in a joint consultation, and if so, whether that duty was breached by inadequate counselling regarding HIV testing and disclosure. Specifically, the court considered the adequacy of advice concerning the statutory requirements for consent to disclosure of test results under section 17(2)(b) of the *Public Health Act 1991* (NSW), the manner of disclosure, and the possibility of discordant results. The court also had to determine issues of causation, the scope of liability for foreseeable consequences of negligence, and the extent to which damages could be awarded for anticipated loss of capacity to care for a child.
The court's reasoning focused on the doctor's duty of care to both members of the couple, particularly given the known context of their intention to engage in unprotected sex and marry. It was held that the doctor's failure to adequately advise on the requirements of section 17(2)(b) of the *Public Health Act 1991* (NSW), including the need for consent to disclosure and the implications of discordant results, constituted a breach of duty. The court applied principles of negligence and causation, including a common sense and two-stage approach to causation, to assess the extent of the doctor's liability. Public policy considerations and the requirement for the plaintiff to mitigate their loss were also relevant.
Ultimately, the appeal and cross-appeal were dismissed. The appellant was ordered to pay the costs of the appeal, and the cross-appellant was ordered to pay the costs of the cross-appeal. The court disallowed recovery for the loss of capacity to care for the second child after the child reached an age where the mother's HIV status would no longer be a primary factor in her ability to provide care.
Orders
Orders of the court
Appeal and Cross-Appeal dismissed; Appellant to pay costs of the Appeal and, Cross-Appellant to pay the costs of the Cross-Appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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