PD v Dr Nicholas Harvey and 1 Ors - [2003] NSWSC 487

CITATION: PD v Dr Nicholas Harvey & 1 Ors [2003] NSWSC 487

HEARING DATE(S): 05/05/03,06/05/03,07/05/03,08/05/03,09/05/03,12/05/03,13/05/03,14/05/03,15/05/03

JUDGMENT DATE:
10 June 2003

JUDGMENT OF: Cripps AJ at 1

DECISION: see para 125

CATCHWORDS: Negligence - medical practitioner - scope and content of duty of care after joint consultation for sexually transmissable diseases

LEGISLATION CITED: Public Health Act 1991 s17(1), s17(2), s17(3), s11,
Public Health Regulation 1991 s7(2), s10,s16,s75

CASES CITED: Burnicle v Cutelli (1982) 2NSWLR 26
Hill v Van Erp (1996) 188 CLR 159
March v Stramere (E.&M.H.) Pty Ltd (1990) 171 CLR 506
Sullivan v Gordon (1998-1999) 47NSWLR 319
Rogers v Whitaker (1992) 175 CLR 479

PARTIES :
Plaintiff - "PD"
Defendant - Dr Nicholas Harvey & 1 Ors

FILE NUMBER(S): SC 20333/01

COUNSEL: Plaintiff - Mr J Anderson/Mr P Strain
Defendant - Mr I Harrison SC/Ms J Lonergan

SOLICITORS: Plaintiff - Maurice Blackburn Cashman
Defendant - David Ian Brown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

Tuesday, 10 June, 2003
20333/01 - “PD” v Dr Nicholas Harvey and Anor

JUDGMENT

1 HIS HONOUR: The plaintiff “PD” was a patient of the Alpha Medical Centre at Marrickville from October 1997 to February 1999.

2 On 16 November 1998 she attended the Centre with her future husband (referred to as FH) for the purpose, as understood by Dr Harvey (the first defendant) who saw them together, of having blood tests to ensure that neither carried the Human Immunodeficiency Virus (HIV) or any other sexually transmitted disease because they were proposing to get married. At the time of the consultation they were not living together but had a sexual relationship and practised protected sex.

3 Dr Chen (the second defendant) was the medical director of the Alpha Medical Centre and he employed Dr Harvey on a regular sessional basis.

4 In the course of the joint consultation Dr Harvey was told FH came from Ghana. The plaintiff has given evidence that she was concerned about the sexually transmitted health status of her future husband because she believed there was a higher risk that a person from Ghana would be HIV positive than from Australia. Dr Harvey would not concede his understanding that that was so but recorded Ghana in his notes because he believed that a person from Ghana had a higher than usual possibility of having other sexually transmitted diseases.

5 On PD’s card was recorded:

”

6 FH’s card records:

7 Part of the notes is almost indecipherable but it appears to be generally accepted by the parties that the portion not transcribed referred to the possibility of genital ulcers.

8 However what is of significance in the present proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 487
Decision Date: 10 June 2003

CaseChat Overview and Summary

In the matter of PD v Dr Nicholas Harvey and 1 Ors, the plaintiff sought to hold the defendants liable for negligence in relation to the treatment of sexually transmitted diseases. The defendants, Dr Nicholas Harvey and another medical practitioner, were accused of failing to properly diagnose and treat the plaintiff's conditions following a joint consultation. The case was heard by the Federal Circuit Court of Australia, which was tasked with determining the scope and content of the duty of care owed by the medical practitioners in such circumstances.

The primary legal issue before the court was whether the defendants owed a duty of care to the plaintiff that extended beyond the initial consultation, and if so, what the content of that duty entailed. This question required the court to consider whether the defendants' obligations continued after the joint consultation and, if so, what standard of care was required in providing further treatment. The court also needed to determine whether the defendants breached any such duty of care and if that breach resulted in the plaintiff's injuries.

The court found that the defendants did owe a duty of care to the plaintiff that continued beyond the initial consultation. The court reasoned that because the defendants had undertaken a joint consultation, they were responsible for ensuring that the plaintiff received appropriate treatment for their sexually transmitted diseases. The court further held that this duty included a responsibility to follow up with the plaintiff to ensure that the treatment was effective and that any ongoing issues were addressed. The court concluded that the defendants breached this duty by failing to adequately monitor and treat the plaintiff's conditions. The court awarded damages to the plaintiff for the harm caused by the defendants' negligence.

In light of the findings, the court ordered that Dr Nicholas Harvey and the other defendant pay compensation to the plaintiff for the harm suffered due to the negligent treatment of their sexually transmitted diseases. The exact amount of damages was determined based on the specifics of the plaintiff's injuries and the extent to which they were attributable to the defendants' breaches of duty.

Orders