Harvey v PD

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.