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

No judgment structure available for this case.

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 is that there was no mention on either card of a joint consultation having been held and there was no mention on PD’s card that she was about to enter a new relationship. These were significant omissions bearing in mind PD had been a patient of the Centre for more than a year and it was at her request FH came to the practice for testing.

9 In both cases the note “1/52” is a reference to one week – i.e. they were told to return in about a week to get their results.

10 It is common ground that at the first (and only) joint consultation Dr Harvey did not inform either PD or FH that unless consent were given he was legally prohibited from disclosing any information concerning HIV or Acquired Immune Deficiency Syndrome (AIDS) about one to the other. How the information was to be dealt with was simply not discussed. The plaintiff believed, and as I find, on reasonable grounds, that she would have FH’s results and he would have hers. But the topic was not raised. Dr Harvey told them to return to his surgery in about a week’s time when the pathology tests would be available.

11 But both gave blood in the presence of each other and left the surgery.

12 On 23 November 1998 Dr Harvey received PD’s pathology report. It noted she was negative both for Hepatitis B and HIV. On 24 November 1998 he received FH’s pathology report which recorded he was positive for Hepatitis B and HIV.

13 Some time between one and two weeks after giving blood (the date not recorded in the doctor’s surgery notes and not precisely remembered by PD) PD returned to the surgery. The receptionist gave her a copy of her pathology report. She asked for a copy of FH’s pathology report but was told it was confidential and could not be given to her. I have already mentioned that I accept her evidence that she and FH had agreed to exchange pathology results and her request for his results merely confirmed her continuing understanding of that arrangement.

14 It is common ground that PD should not have received her results from the receptionist but should have received them from a medical practitioner and to have been told, in effect, that the results were not necessarily definitive because of what has been described as the “window” period of three months prior to the test being undertaken within which HIV could have been contracted but without a positive result appearing in the test. PD had told Dr Harvey she was not having unprotected sex. Consequently there was some debate in the proceedings concerning whether the failure to inform PD of the need for a further test had any adverse consequences for her.

15 On 24 November 1998 Dr Harvey received, her husband’s pathology report. The notes revealed that:

Unable to contact patient by phone. I have made appointment for Immune Clinic RPAH 9am Thursday 26.11.98

”

16 Dr Harvey said that when he got the results on 24 November 1998 he rang the Alpha Medical Centre at Marrickville for FH’s phone number. Although the note recorded the contrary Dr Harvey has given evidence that he spoke to FH. He said he made an appointment for FH to attend the Royal Prince Alfred Immunology Clinic (RPAHIC) at 9 am on 26 November 1998.

17 I accept Dr Harvey’s evidence that he had a conversation with FH on 24 or 25 November 1998. Why the note in FH’s records made no mention of it was not explained. It may be that the conversation was not recorded in the notes because Dr Harvey rang him from the Auburn clinic. The records of RPAHIC record an appointment was made for FH for Thursday 26 November 1998, which, as will be seen, FH failed to keep.

18 Dr Harvey told FH he had “very bad news” and that he had tested positive. He said he thought FH appeared not to believe what he was hearing but he told him frequent tests had been performed and the laboratory was certain of the results. He told him that he had made an appointment for him to attend RPAHIC and he should take a positive attitude towards his condition because of the enormous advances that had recently been made in treatment of people having this condition. The doctor said FH asked “Does this mean I can’t have children” and he responded “At this stage the answer is no” (meaning he could not). Dr Harvey advised him not to have unprotected sex and he could not safely father a child. On that occasion Dr Harvey did not raise with FH any issue arising out of the joint consultation and, in particular, he asked no questions concerning whether FH was proposing to tell PD the result of his tests.

19 Dr Harvey never saw FH again and there is no record of him having attended the RPAHIC. Dr Harvey never spoke to PD again although she attended the clinic on 31 December 1998 for a contraception pill and on 11 February 1999 for vaccines because she was travelling to Ghana on 31 March 1999 and proposed to remain there for a period of three weeks. The joint consultation and the results of the tests were not adverted to directly or indirectly on either of these occasions. In fact it was not until after mid May 1999 that any check was made to determine whether FH kept his appointment with RPAHIC.

20 On 25 November 1998 FH attended the Marrickville clinic and asked for his pathology results. The card records:

.”

21 Although it was not put to Dr Chen directly Mr Anderson, on behalf of the plaintiff, has asked me to conclude that, on the probabilities, Dr Chen never spoke to FH and that he received his results together with the referral note to RPAHIC from the receptionist. Mr Anderson has pointed to the circumstance that Dr Chen himself made no note of the consultation and did not turn his mind to it until some time in 2000. The note was written by someone who was said to be a practice nurse and who was not called to give evidence. The note also had the words “RPAH” written over the words “St Vincent”. Dr Chen said he had FH’s notes with him when he had the consultation and, it is submitted, it would be unusual for him not to have recorded what took place.

22 However I accept that Dr Chen spoke to FH on the occasion of handing him the letter of referral to the RPAHIC and that on that occasion he urged him to attend the RPAHIC. However on any view of the matter and accepting Dr Chen’s evidence the counsel given by him fell far short of what was expected of a general practitioner in all the circumstances. He told him for example that he had AIDS (which he didn’t). He told him “it kills” (which all experts agree was inappropriate). He said FH appeared to understand and shook his head. Dr Chen said he thought he appeared to accept the news. FH raised the question whether treatment was expensive and he was told it was. (FH did not have a Medicare card and had to pay cash for treatment). He said he formed the view, but without raising the matter with FH, that FH understood his responsibilities and that he would probably disclose his HIV status to “his sexual partner” – although Dr Chen did not know whom that was. When asked why he formed that view he said it was because he was a neatly dressed man who appeared to be educated and because he was African it was expected that he would know what HIV was and the basic nature of the disease.

23 The reason why Dr Chen did not raise this matter with FH was, I infer, because he did not know who that partner was. On any view of the matter Dr Chen’s ”counselling” on this occasion fell far below that expected of a general practitioner. The evidence from both sides of the litigation is to the effect that when a GP is conveying grave information concerning life threatening diseases it is notorious that the recipient although perhaps understanding what has been said does not absorb consequences fully. Frequently patients go into denial, often they become angry, and not infrequently blame others etc. Dr Chen apparently, recognised none of these matters. He thought that having referred him to the RPAHIC he had discharged his duty to FH and he did not (nor did Dr Harvey) think there was any need to check with RPAHIC to see whether FH kept his appointment.

24 After PD was refused access to FH’s record she telephoned him and told him she had tested negative. He said he had tested negative also. He said he did not wish to see her results because he accepted her word. She, however, said she wished to see his. A matter of days after she received her results she went to where FH was living and was shown what purported to be his pathology result. It allegedly showed him as HIV negative and Hepatitis B negative. The report was either a forgery or fraudulently obtained. PD did not keep a copy of the report and handed it back to FH. She has not seen it since.

25 At the time of the consultation in November 1998 and for some months after PD and FH were living apart and were not having unprotected sex. They visited Ghana around March/April 1999 and afterwards they commenced living together and engaging in unprotected sex. They were married in July 1999 and a child was born in February 2000.

26 Sometime in May 1999 Dr Harvey received a questionnaire from the Department of Health seeking information concerning FH’s HIV status which had been notified to the Department by the serum laboratory. Serum laboratories are required by law to make this information available to the Director General of Health. Although PD and FH were living together at this time neither was contacted by Dr Harvey. He said an attempt was made but I am not persuaded that it was.

27 On 15 June 1999 the Alpha Medical Centre received a letter from RPAHIC advising it had no information that FH had ever attended although the records confirmed an appointment had been made for 26 November 1998. No attempt was made to contact PD or FH because, I infer, it was believed by members of the practice they had no further obligation either to PD or FH. Indeed, as will be seen, Dr Harvey considered he had no further obligation to PD after she was given her results by the receptionist and was told she was HIV negative and that he had no obligation to FH after writing the letter of referral to RPAHIC.

28 In September 1999 PD was admitted to Canterbury Hospital. She had a fever and her body was covered in a rash. Later this was recognised to be a seroconversion illness indicating that probably she had, shortly before admission to hospital, become HIV positive. In fact she did not find out she was HIV positive until January 2000 and just prior to the expected birth date of her child.

29 PD became aware FH was infected with HIV because she found a copy of the genuine pathology report amongst his papers at the end of 1999 or early 2000.

30 Before she became aware that she was HIV positive she went to the Alpha Medical Centre at Marrickville and spoke to Dr Chen demanding to know, in effect, why she was not told of her husband’s HIV status.

31 The following note appeared in FH’s records:

“(Chen addendum) Patient came (wife) requesting records and Info about husband. Explain clearly husband may be unwell – confidentiality issues apply – Need to take precautions and advise husband to attend here or any doctor for R/V ASAP, if still has not resolved last 1-2 years issues. Explained records cannot be given to her. Attend with husband to resolve issues best options”.

32 The note was not in Dr Chen’s handwriting. There is a serious conflict between the evidence of Dr Chen on this occasion and PD. Dr Chen said that when he spoke to her she told him she was HIV positive and wanted to see the test results of her husband. Dr Chen said he would not give them to her because he did not have FH’s permission (although he did discuss the results with her). Dr Chen said that he asked them both to attend together so he could get permission to discuss the issue and that if she believed she was HIV positive she would need to take precautions.

33 According to the plaintiff she did not know she was HIV positive when she visited Dr Chen sometime in January of February 2000. PD made a note of the conversation and I accept her version of it. Dr Chen’s memory of the advice he said he gave derives not from notes he made at the time but from notes other people made. It is not without significance that the notes made no reference to PD telling him she was HIV infected.

34 The note made by the plaintiff which was received into evidence concerning the conversation between her and Dr Chen in February 2000 records as follows:

“A: Did you see my husband on such and such a date regarding his results.
Dr: Yes.

A: Did you tell him that he was HIV positive?
Dr: Yes

35 I have substituted FH for the first name of the plaintiff’s former husband.

36 Shortly after this meeting PD had a further test and found she was HIV positive. She underwent treatment and had a caesarean birth with the result her child was not affected by the virus.

37 The Public Health Act 1991 makes special provision for the protection of confidentiality for HIV and AIDS related information.

38 Section 17(1) provides that medical practitioners must not state the name and address on communications made for the purpose of arranging a test to see whether a person suffers from HIV except in circumstances not here relevant. Section 17(2) of the Act provides that the persons providing a service must not disclose information relating to the fact that a person has been tested for HIV, the results of that test, whether the person is infected with HIV etc and it provides a penalty for breach.

39 Section 17(3) provides:

“Information about a person that is of a kind referred to in subsection (2) may be disclosed:

(a) with the consent of the other person, or

(b) …

(c) …

(d) …

”.

40 Section 7(2) of the Regulation permits disclosure to the Director-General where a health care worker has reasonable grounds to believe that a failure to disclose information could place the health of the public at risk in order that the Director-General or his or her delegate could perform the necessary tracing and take other necessary actions to protect public health.

41 Section 10 of the Public Health Regulation 1991 provides:

“The Director-General may notify a person who the Director-General believes may have been in contact with a person suffering from a Category 2, 3 or 4 medical condition of measures to be taken, and activities to be avoided, in order to minimise the danger of the first person’s contracting the condition or passing it to a third person”.

42 HIV is a Category 3 medical condition.

43 Section 16 requires a pathology laboratory to notify the Director-General of a confirmed HIV anti-body positive result. The information is made on an approved form and must not disclose the name or address of the patient. The laboratory passed FH’s test results to the Director-General toward the end of November 1998.

44 Section 75 of the Act makes it an offence for a person to disclose information without lawful excuse and provides for a monetary penalty of 50 penalty units. It is a lawful excuse for the disclosure of information that the information disclosed is with the consent of the person to whom it relates and any other prescribed circumstances.

45 Dr Harvey and Dr Chen are sued in tort. The particulars of the breach of duty of care alleged against the medical practitioners is, in essence:

1. They failed to provide any adequate pre-test counselling to PD or FH,

2. They failed to determine what PD and FH intended to do if one or the other was HIV positive,

3. Failed to personally counsel or arrange for a doctor to counsel PD when she attended to receive her test results,

4. Failed to provide any post-test counselling to PD or FH,

5. Failed to inform PD that FH was HIV positive,

6. Failed to take any adequate measures to ensure that FH attended for specialist treatment and/or counselling in relation to his infection,

7. Failed to warn PD of the risks of unprotected sexual intercourse given that her proposed partner FH was HIV positive,

8. Failed to take any steps to protect PD from HIV infection where they knew or ought to have known that FH was intending to engage in unprotected sexual intercourse with her, she was a patient of the practice and it was foreseeable that FH might not inform PD of his infection.

46 In the alternative, Dr Harvey is sued in contract. Apparently PD paid for the consultation. It was alleged that it was an implied term of the contract that Dr Harvey would arrange for blood tests to determine whether PD or FH were HIV infected and to advise PD of FH’s results. These were said to be implied obligations that arose by reason of the nature of the joint consultation. It was not clear to me why the count in contract raised issues different to those raised in the counts in tort. Mr Anderson for PD submitted that if the contract contained the implied term contended for by him the claim for damages for breach of that condition could not be defeated by novus actus interveniens. No authorities were cited supporting the proposition that the doctrine has no obligation in the field of contract and I did not understand Mr Anderson to advance the submission with much enthusiasm. I propose to deal with this case upon the basis of tortious liability because, as it seems to me, if the medical practitioners are not liable in tort they would not be liable in contract. I find that, on the occasion of the joint consultation, FH did not consent to Dr Harvey disclosing his HIV results to PD either in terms or by implication. Mr Harrison SC appeared for both defendants and acknowledged that Dr Chen as the employer was vicariously liable for the acts of those who he employed including Dr Harvey. Neither doctor sought to be exculpated by reason of the conduct of the other. Neither doctor sought contribution from the other.

47 PD was plainly of the opinion that she was entitled to FH’s results. He had consented to her having them before the joint consultation. She asked for a copy but was told by the receptionist (who did not then consult a doctor) that she was not entitled to it. An issue has been raised whether I should conclude that in fact FH, by reason of the joint consultation and the way it was conducted, gave his consent for his results to be passed to PD. However, the matter was not discussed at the joint consultation. Neither FH nor PD raised with the doctor, or he with them, whether they consented to information relating to one being available to the other. Indeed it is alleged that Dr Harvey’s failure to inform them of the need for their consent to disclose their results to each other and failing to raise how they proposed to deal with discordant results should that occur amounted, in all the circumstances, to negligent treatment. Accordingly I find that FH did not give his consent to Drs Harvey and Chen to disclose his result to PD.

48 However, I am of the opinion that had the question arisen concerning what the parties intended to do with the results when they got them, both would have said the other could have access to them.

49 PD has said and I accept her evidence that if FH were not prepared to have his results made available to her she would have discontinued her relationship with him. I find on the probabilities that FH at that time did not know he was HIV positive. He attended the clinic with PD for a joint consultation concerning his HIV status. He was in Australia on a visitor’s visa and he wished to immigrate to this country. His despicable conduct in presenting PD with a forged result occurred, as I infer, after he knew he had to show her his results when she indicated she was not prepared to trust him as he claimed to be prepared to trust her.

50 I am conscious of warnings by higher courts concerning the caution to be exercised before accepting what a person says he or she would have done after an event which results in loss. Thus if a person alleges that had he been told of a 1 in 10,000 chance of an event happening which was serious but not life threatening he would not have undergone elective surgery his evidence may not be accepted. But in the present case the very point of the joint consultation was for each to establish their HIV status to the other. On the part of PD at least, a negative result was a condition precedent to getting married and having unprotected sex. If FH had told Dr Harvey at the joint consultation he was not prepared to make his results available to her I have little doubt she would not have married him and in all probability would have discontinued any relationship with him.

51 I record I am not unmindful of the circumstances that the conduct of FH has assumed importance in this litigation. He has not given evidence and his version of events (if indeed it varies from that of PD) has not been tested. Nonetheless I can only determine this matter by what, on the evidence, is the probable likelihood of events. It has not been suggested FH did not present a forged result. Indeed the defendant has submitted that if (which they deny) they were in breach of their duty of care to her the conduct of FH operated to break the chain of causation between the breach and the consequential infection suffered by PD in on or about August 1999.

52 I accept, on the balance of probabilities, that Dr Chen did speak to FH when he was given his results although his treatment of the subject matter fell far short of that expected of a general practitioner in the circumstances. I accept that he did not know of the joint consultation and that the person with whom FH was proposing a “new relationship” was PD, a patient of the practice. That may have been because of the unsatisfactory system of recording information and cross-referencing it. It was also, I infer, because Dr Chen did not refer the matter to Dr Harvey when FH came in for his test results.

53 It has been submitted that the doctors would have been guilty of breaching statutory confidentiality had they placed on PD’s card reference to FH and vice versa even though there was a joint consultation. In my opinion that argument must be rejected. It is the disclosure of information that is prohibited not the receipt of it. To have placed a note on PD’s file that there was a joint consultation with FH would not amount to a disclosure of confidential of the type forbidden by s 17. A doctor was not at liberty to tell PD about FH’s condition but that, in my opinion, does not mean, that the practice ceased having any responsibility for the welfare of PD in the circumstances here presented.

54 One curious feature of Dr Chen’s evidence is that even if his version of the conversation in February 2000 is accepted he did not appear to be troubled by issues of confidentiality because although he said he told PD he could not disclose FH’s result he then told her that it was not his fault that her husband had not told her his results – plainly a reference to FH’s positive HIV condition.

55 The medical witnesses called by the plaintiff and the defendant have recognised that at the initial joint consultation inadequate information was given to the couple. In particular no reference was made to what would happen if the results were discordant bearing in mind the statutory confidentiality obligations under the Public Health Act. There was evidence concerning whether it was appropriate to have joint consultations at all in the circumstances of this case. For example Dr Dayan, who was called as an expert for the defendants thought the more appropriate course was to have a separate consultation with each person. However she claimed not to have a good understanding of the practice in a GP’s surgery. She did not, if I understood her evidence correctly, conclude that it was necessarily bad practice for a joint consultation and I do not think it established that there should not have been one.

56 It would seem that the experts agree that the question of possible discordant results should have been discussed at the first consultation and the parties’ minds directed to the consequences of that possibility. Dr Walsh a GP called by the defendant opined that in low risk cases such pre-test counselling might be seen by patients as being confrontational and unnecessarily intrusive. He recognised, however, that the reference to one of the persons being tested coming from Ghana should have alerted a practitioner to a higher than usual prospect of discordant results than had the African background been absent.

57 No medical practitioner supported the post-test counselling of FH by Dr Harvey or Dr Chen. All agreed that the information of the type imparted to FH by Dr Harvey should never have been done otherwise than in a face to face meeting with the medical practitioner and most agreed that Dr Chen’s counselling fell far short of that expected of a competent medical practitioner.

58 However, Drs Mann, Law and Bellamy would seek to impose upon a general practitioner an obligation which, in my opinion, cannot be recognised by law. After referring to the need for counselling and the importance of persuading the infected partner to inform the partner at risk of his condition (which I accept as proper practice) they would have it that if those attempts failed the general practitioner should tell the patient at risk that her partner or proposed partner was HIV positive. None were of the opinion that it should happen immediately. In their view it should be preceded by appropriate counselling which would include reminding the infected patient of his obligations under the law, for example that it was an offence under s 11 of The Public Health Act to fail to take precautions against spreading HIV and s 13 which makes it an offence for a person knowing that he or she suffers from a sexually transmissible medical condition (and this includes HIV) to have sexual intercourse with another person unless before intercourse takes place that other person has been informed of the sexually transmissible status of the first person and has voluntarily agreed to accept the risk. But at the end of the day unless satisfied that the infected partner had told his partner of his condition they would disclose it to her.

59 Mr Harrison has referred to the consequences of medical practitioners disobeying the law and to the possibility that unlawful disclosure might amount to professional misconduct and/or the medical practitioner being sued for disclosing confidential information and being rendered liable in damages – it being assumed, apparently, that the law would recognise an entitlement to damages in circumstances where the medical practitioner did what the infected party should have done viz told his partner. However, I need not consider these submissions further because in my opinion (and recognising that some medical practitioners may, indeed, be prepared to disclose matters in breach of the law) the failure to do what the law prohibits cannot be the basis of a civil action against a medical practitioner. It was submitted, albeit less forcibly than other submissions made, that without a patient’s consent a medical practitioner disclosing information would have a defence to a prosecution under s 75 because of what was recognised by a responsible body of medical opinion to be the “higher duty” of the medical practitioner to the public in general and to their patient in particular. I do not accept this submission.

60 Moreover I do not accept the scaled down submission that although a medical practitioner cannot, in terms, disclose information without the consent of the patient he or she is entitled to use body language or other subtle methods of communication to alert another patient to the status of the affected party. It would seem to me, with respect to people who have other views, the statutory obligation which precludes a medical practitioner from breaching confidentiality and imparting information about one person to another person without the consent of the first person cannot lawfully be avoided by these means. One medical practitioner was of the opinion that it would have been appropriate to have told PD that the practice had received FH’s test results and that she should tell him to come in because he was seriously unwell but without saying what it was that was causing his ill health. She said she was of the opinion that PD might have thought, for example, that it was some other sexually transmitted disease other than HIV or AIDS. I do not accept this submission. In the context of this case that statement to PD would have told her that FH had HIV or AIDS.

61 But these observations do not have the consequence that there was nothing the doctors could do to protect PD or at least to make her aware of the risks to which she was exposed. The pre-test counselling that was given did not follow the guidelines imposed by the Health Department particularly where, as in this case, the consultation was a joint consultation. These guidelines provide as follows;

“The extent of pre-test counselling may vary according to the person’s level of knowledge and understanding of HIV transmission and their risk to exposure. Accordingly pre-test counselling may need to encompass the following:

- assessment of the person’s risk to exposure to HIV with a frank discussion of sexual activity and safe injecting drug use, exposure to blood products and other risk factors;

- explanation of the inability of the test to detect recent exposure to HIV (the three month “window” period) and of the necessity to re-test after three months of safe behaviour if the risk assessment reveals any possibility of recent exposure;

brief explanation of the legal issues associated with a positive result;

- assessment of the person’s support systems and coping skills in order to determine their likely response to a positive result; and

explanation of coded notification procedures and confidentiality arrangements

62 I find Dr Chen did not know of the existence of PD much less that she was a patient of the surgery who had attended with FH for a joint consultation for the purpose of having tests to see if either were HIV positive. But this, in my opinion, cannot be relied on by way of exculpation. He should have known of the joint consultation and the connection PD had with FH. It is the medical practice itself that had the relevant information and, in my opinion, it does not lie in the mouth of Dr Chen to argue, as has been done on his behalf, that he was justified in paying no attention to any duty members of the practice might have owed to PD because he did not know of her existence. The prospect of discordant results, although unlikely, was not wholly remote when one of the patients was black and came from Africa. Moreover and although Dr Chen said he did not speak to Dr Harvey I find it bordering on the incredulous that if, as I am told, an HIV positive result was such an unusual experience for this practice Dr Chen did not speak to Dr Harvey prior to his consultation with FH.

63 As I would understand it the case for the defendants it is as follows. First there was no breach of any obligation owed by the defendants to PD that was not discharged according to law. That is to say there was no obligation on the defendants to direct PD’s attention to the possibility of discordant results and there was no obligation on the defendants, once they knew FH was HIV positive to have any further contact with PD or to raise with her, on the occasions she was seen, any aspect of the joint consultation after the discordant results were known and well before she became infected. Moreover it is submitted that by referring FH to the RPAHIC the members of the practice, in effect, no longer had a legal obligation, breach of which could sound in damages, to make further efforts to protect PD whether or not other doctors thought they would have a “moral” obligations to track down FH and persuade him to tell PD of his condition and failing that to report the matter to the Department.

64 It is also submitted by the defendant that even if there were relevantly a breach of an obligation to ensure that FH kept the appointment with the RPAHIC and/or, to raise with PD in December 1998 or February 1999 the matters relating to the joint consultation the conduct of FH toward the end of November 1998 operated to break the chain of causation as a novus actus interveniens with the consequence that, in law, I should conclude that her infection with HIV in about August 1999 was the result of FH’s conduct and not relevantly the result of any breach of duty owed by the practice to PD.

65 I have been referred to evidence from specialists in the field of sexually transmitted medical conditions including HIV and AIDS. That evidence, largely unchallenged, is that by a process of counselling and, as a last resort, coercion, HIV positive patients will tell their partners of their condition. However, the defendants in this case submit that having referred FH to the RPAHIC that concluded their obligation because they were entitled to assume he would attend where he would be given the appropriate counselling and hence would notify PD.

66 Without calling PD to a special consultation there were at least two occasions when it was open to them to raise with PD her future intentions concerning her marriage to FH. Had this matter been mentioned or reference made to the joint consultation she would have told them that both were clear and that she was proposing to get married (unless, of course, there were other reasons for not marrying but as is known there were not.) At that point the doctors would have been on notice that FH must have lied to her and, probably, that he had deceived her by means of a forged certificate. They were not at liberty to tell her of the information they had concerning FH’s HIV status but they could and should have taken other steps to ensure that, as far as was legally possible, PD was aware of the danger she was in. Had they contacted the Medical Defence Union they would have been told that although they could not warn PD in terms of her dangerous position the Director-General and/or his delegate could. Had specialists been notified they would have been told that FH should be referred for counselling in circumstances where he could be persuaded to disclose his condition to PD. Also of course they could have contacted FH and told him that unless he assured them he was proposing to tell PD of his HIV status they would assume he was placing her in danger and would remind him of the provisions of the legislation and of their entitlement, if not obligation, to refer the matter to the Director-General of Health. But they did none of these things. It is fairly clear that FH would have told the doctors he proposed to tell his wife of his condition without necessarily intending to do so. But if he had said that it would have justified the doctors in arranging for another joint consultation when the matter could have been further explored.

67 I am aware of the danger, frequently stated in the authorities of expressing breach of duty and its causal nexus to damage by reference to a hypothetical “what if” situation and that is particularly so in circumstances where what is alleged is omission as opposed to commission. But I do not think I am putting the matter too highly when I conclude that if PD had even a suspicion about FH’s honesty concerning his results she would not have continued the relationship with him.

68 In my opinion it is not imposing an undue obligation on a general practitioner in the circumstances of this case to have asked FH whether he was proposing to tell PD of his condition. I am not unmindful of Mr Harrison SC’s submission that these obligations should not be imposed by hindsight and that merely because a step could have been taken it does not follow that the failure to take that step amounts, in law, to negligence. Nonetheless it was not, in my opinion, good enough to send him to RPAHIC without more and I doubt whether the Clinic would have had all the relevant information known to the doctors. I doubt whether, for example, there would have been any reference to the joint consultation and the purpose of it because by that time it appeared to be no longer important to the doctors.

69 Had FH been asked whether he proposed to tell his future wife of his condition and been reminded at that time that if he had sexual intercourse with her without telling her of it he was committing an offence he would, I infer, have said he would tell her. But on the evidence before me I conclude that it would have been extremely difficult for FH to have maintained his deception if those he was proposing to deceive were aware of the joint consultation. I do not accept that a doctor was entitled to assume PD would become aware of FH’s condition. Mr Harrison SC has submitted there was nothing about the plaintiff’s conduct, which would have alerted members of the practice to the possibility that FH would act irresponsibly much less deceitfully. One practitioner, on behalf of the plaintiff has said “I expect nothing good of any of my patients”. That may be putting the matter a little too highly but it is some recognition, in my opinion, of the fact that in circumstances where persons may be expected to go into denial, become angry etc. responsible behaviour cannot be assumed and certainly not simply because the patient is well dressed and understands English. In any event in the instant case it must be steadily borne in mind that none of this was raised in terms.

70 Moreover I do not think it would have been unduly onerous an obligation to have contacted RPAHIC to find out whether FH kept the appointment and to have raised with the Clinic the circumstances surrounding the joint consultation and (with PD’s consent) that PD was HIV negative. On behalf of the doctors it has been submitted that it would place an impossibly onerous task on medical practitioners to ensure their patients kept their specialist appointments. But that, in my respectful submission, misses the point so far as this case is concerned. Ordinarily if an appointment is made for a patient and that patient does not keep the appointment it may be that the medical practitioner is not under an obligation to chase them up. But in the present case most GPs, I think, would consider they had an obligation to ensure a person in FH’s position kept an appointment with RPAHIC. They would recognise a public duty to prevent, as far as possible, the spread of HIV into the community and, in the particulars of the present case, to protect, as far as they were legally able to do so, their own patient. Once they became aware FH had not kept his appointment the Director-General could have been informed.

71 Counsellors in this field appear to place considerable emphasis on the need to gain the confidence of the infected person because it is deemed necessary as far as possible to encourage people to present for treatment and counselling if they are infected by HIV or have AIDS. What has been called the protocol commences with counselling and may, in the case of a recalcitrant person be the subject of consideration by a panel set up by the Director-General and finally if necessary for the Director-General or his delegate to inform a person particularly at risk. The process is unquestionably very slow and some people may consider that insufficient recognition is given to the danger to people who remain at risk while it continues. In the present case nobody except the RPAHIC knew FH had not attended the Clinic until some time between May 1999 and 15 June 1999. On the evidence before me I have concluded that had the process of counselling been properly commenced before the end of 1998 PD, more probably than not, would have become aware of the HIV status of FH well before August 1999 when she became infected.

72 In Rogers v Whitaker (1992) 175 CLR 479 at 483 it was stated in a joint judgment of the Court:

provision of information in an appropriate case

(Emphasis mine)

73 That the medical practitioners owed PD duty of care is not in dispute. What is in issue is the scope and content of that duty in all the circumstances. Relevant to this question in the present case is, in my opinion, the statutory provisions of the Public Health Act establishing special rules of confidentiality and the circumstances where that confidentiality can be broken in the public interest or for the protection of a person e.g. by referring the matter to the Director-General of Health. I reject the submission as advanced by Mr Harrison that the doctors were precluded from taking steps to prevent reasonable foreseeable loss because there was “an overriding inconsistent duty” of the type referred to by Gauldron J in Hill v Van Erp (1996) 188 CLR 159. In the present case the statutory obligation to preserve confidentiality was overriding only in the sense that the details could not be given to PD without the consent of FH. The steps were open to the practice to take and which were not taken inconsistent with that obligation. The statutory obligation operated as a constraint only. It did not preclude members of the practice taking the steps I have concluded they should have taken, but did not, and which resulted in the plaintiff becoming HIV positive.

74 In the instant case it is significant that PD and FH had a joint consultation and although the topic of confidentiality was not raised by anybody PD believed she would have access to FH’s result and, I infer, FH agreed to allow her to have access to his (even though later he deceived her). Both were invited to come back to get their results and I do not think the duty of the members of the practice ended when they told her that, contrary to her reasonable expectations, she would not have access to FH’s results.

75 Mr Harrison has submitted that medical practitioners in the present case were not under a duty to ensure that PD was not infected. That, I think, is correct. The duty is not that high. However the scope of the duty required the doctors to take all reasonable steps to protect the plaintiff from what, in my opinion, was clearly a foreseeable danger to her. The doctors could not be expected to guarantee an outcome because they were by law prohibited from giving her direct information and in any event they could not, of course, control what she did with the information. They were not, however, prohibited from undertaking fairly obvious steps designed ultimately to make her aware of the danger she was in.

76 Once it became apparent that the results were discordant members of the practice could have done three things. They could have sought advice from experts in the field, for example, the Albion Street Clinic. They could have sought advice from the Medical Defence Union and they could have spoken to the Department of Health. Had they done any of those things they would have been told FH needed to be counselled to ensure he made PD aware of his medical condition and I do not think that duty was discharged, merely by referring him to the RPAHIC without more.

77 So far as PD was concerned FH was HIV negative. She believed that because he deceived her. I do not think the members of the practice could have reasonably have foreseen FH might present a forged result. But, in my opinion, they could have foreseen that he may not have told her his result and/or he might have lied to her.

78 From the time PD and FH left the surgery after giving blood they were treated by the practice as two separate and unrelated patients – in circumstances where Dr Harvey knew that was not so and Dr Chen ought to have known it was not so. PD was never spoken to again concerning the outcome of the joint consultation otherwise than by being told that she could not have access to FH’s pathology report. In my opinion the practice had an obligation to PD while she remained its patient to ensure, as far as could be lawfully done, that she had information concerning her proposed husband’s HIV status and the risk to which she was exposed.

79 It has been submitted on behalf of PD that the obligation continued until May or June 1999. I am not persuaded that the duty of care extended to a period after PD had ceased to be a patient and I do not know when that was. However I need not determine whether an obligation was owed in May or June because I am of the opinion that while she remained a patient the doctors were in breach of their obligation to her. Had anyone raised with her in late December 1998 or early 1999 the test results which followed the joint consultation she would have told that person that she believed FH was HIV negative and that would have set the “alarm bells” ringing that Dr Harvey did not think began to ring until about May 1999.

80 It is for this reason I reject the submission that FH’s conduct in presenting her with forged HIV negative results towards the end of November 1998 relevantly constituted a novus actus interveniens. It is true that the actual forgery may not have been foreseeable but, in my opinion, possible deceit and/or irrational behaviour on the part of FH was. The medical expert evidence seems to make this clear. I think it is also true that the plaintiff continued to believe in the authenticity of the forged document from the time she commenced unprotected sexual intercourse with FH until she found out in late 1999 or early 2000 that he had in fact tested positive. But that was because she had no occasion to think other than that the document was genuine.

81 In March v Stramere (E.& M.H) Pty Ltd 171 CLR 506 the Court drew attention to the legal concept of causation and how it differed from philosophic and scientific notions of causation. It reinforced the common law principle that in law “cause” is to be approached by reference to principles of commonsense.

82 Had the obligation to PD with respect to the blood tests ended when she was given her results by the receptionist and told she could not have those of FH there may have been an argument to the effect that although there had been inadequate pre-test counselling the damage she suffered was relevantly “caused by” the conduct of FH. But, in my opinion, the obligation to the plaintiff did not cease when she was handed her results by the receptionist and told she could not have those of FH. The obligation to look after her interests in so far that could be lawfully done continued while she was a patient of the practice i.e. until at least the end of February 1999. I have already referred to the fact that she returned to the practice for further consultations concerning a prescription for the oral contraceptive pill and vaccinations before travelling to Ghana. It may be argued that it has not been established that the doctor who vaccinated her for the trip to Ghana or the doctor who prescribed contraceptive pills were aware of FH’s positive result and that he was the person she was proposing to marry. But the Alpha Medical Centre had that information and I do not think the duty owed to the patient can be avoided by what appears to be an inadequate cross-referencing of patients’ cards.

83 Accordingly I find the defendants were in breach of the duty of care they owed PD and that as a result PD became infected with HIV in or about August 1999.

Damages

84 The plaintiff was born in Poland on 14 November 1974. She came to Australia in 1989 and attended the Riverside Girls High School. In 1995 she was awarded a Bachelor of Arts from Sydney University. She obtained secretarial work with Telstra prior to her involvement with FH.

85 She was almost twenty-five when she was infected with HIV in August 1999. She is now twenty-eight. Her marriage to FH was dissolved in May 2001.

86 Sometime in 2001 and after her divorce she entered into a relationship with a man from Sweden to whom she is presently engaged and who is also HIV positive. A child of that union was born on 29 November 2002. It is unlikely that he will be allowed to stay in this country permanently by reason of his HIV status.

87 Earlier I have referred to the fact that the plaintiff was admitted to Canterbury Hospital in September 1999 with a fever and a rash over her body. Later and just before the birth of her first child in February 2000 it was realised that her condition in September 1999 was the result of her HIV infection.

88 After she became aware that she was HIV positive she underwent anti-retroviral drug therapy which, together with having a caesarean delivery, resulted in her child being born HIV free. She underwent similar treatment just prior to the birth of her second child which to date appears not to be infected with HIV although the risk of it cannot be eliminated until he remains negative for at least twelve months.

89 After the birth of her first child Telstra allowed her three months paid maternity leave followed by twelve months unpaid leave. She returned to work part-time in August 2001. Had she remained in full-time employment with Telstra from August 2000 until September 2002 she would have earned net $54,399. During that period she earned net $25,572.

90 Her claim for loss of earnings in the past commences on 13 August 2001 and ends about September 2002 when she ceased work prior to the birth of her second child. Her loss is calculated by reference to the difference between full-time employment and part-time employment to which she returned. That at least was her claim as originally formulated. Upon that formulation she claimed the difference between part-time and full-time work and claimed approximately $8,000 for past economic loss (together with interest at 2%).

91 During the hearing a submission was made that she was entitled to $25,572 for loss of earnings to date being the difference between what she could have earned working full-time ($54,399) and what in fact she earned ($25,572).

92 The defendant submits that her diminution in earnings is referrable solely to the need to care for her children and is not due to her infection. The medical evidence, which I accept, is that by reason of her infection she has suffered a severe depressive episode with some fatigue but to date there is no physical reason why she could not work full-time.

93 I do not accept the submission that she is entitled to loss of earnings being the difference between what she was able to earn had she worked full-time and what she in fact earned. In my opinion although it is true that probably she would not have married FH and had a child by him had the doctors not been in breach of their duty to her the unpaid maternity leave is, in my opinion, referrable to the birth of her child and is not to be regarded, in law, as a compensable consequence of the negligence of the defendant.

94 I accept she has suffered and continues to suffer from a depression illness and a consequent feeling of fatigue and this has contributed to the need for her to work part-time. However I have also come to the conclusion that although her depressive illness operated as part of the reason for part-time work most of it was referrable to the need to look after her children. Doing the best I can I assess her loss of earnings to date referrable to her HIV infection to be $3,000.

95 The plaintiff’s future is uncertain. Prior to the “strategic utilisation” of highly active anti-retroviral therapy which first became available in 1996 it was generally thought that patients who had been infected with HIV had a life expectancy of approximately eight to nine years from the onset of infection until death by an AIDS defining illness – eighteen months to two years later.

96 Since 1996 the life expectancy of a person infected with HIV has lengthened but, according to Dr Furner the Director of Clinical Services at the Albion Street Centre, whose evidence I accept, there is insufficient evidence to determine with any degree of precision how long a given patient is likely to survive after HIV infection post 1997 given that at some time the person would undergo highly active anti-retroviral therapy. Moreover the extended life expectancy comes at a cost because it is not uncommon for the drugs used in the therapy to cause unpleasant side effects such as nausea, diarrhoea, diabetes and, in extreme cases, renal failure. Dr Furner has mentioned that sometimes the side effects cause patients to discontinue taking drugs.

97 Previously it had been thought that the anti-retroviral therapy commenced at a time when a test of the immune function indicated a moderate degree of suppression of the immune system with a CD4 (t-cell) count of 500. The guidelines have since been revised and it is now generally accepted that therapy will not ordinarily commence until the CD4 (t-cell) count has fallen below 350 or the measure of virus in the blood (viral load) is greater than 55,000 copies per ml.

98 The evidence discloses that in May 2002 her CD4 (t-cell) count was 730 UL and her viral load 43,374 which was described as being within the “moderate” range. In March this year her CD4 (t-cell) count was 820 UL. It is not uncommon for readings to fluctuate but over a long period and without the intervention of drugs the loss is usually about 80 UL per year

99 Dr Furner thinks the worst case for the plaintiff is if the natural progression of the infection is not arrested by drug therapy. In these circumstances it is anticipated that the plaintiff would contract an AIDS defining illness about nine or ten years after infection and die one and a half to two years later. However at the present time she regards what she describes as the “worst case scenario” as no higher than a 10% probability.

100 The plaintiff has submitted that I should approach damages by reference to the “worst case scenario” and thereafter make certain allowances to accommodate the likelihood that the plaintiff will not, in fact, be a “worst case scenario”. On behalf of the defendants it has been submitted that I should assume that an AIDS defining illness will not occur until about the year 2019 i.e. twenty years after her infection and that her death will occur sometime in 2020 or 2021.

101 It appears common ground that the period of survival after the commencement of an AIDS defining illness is between eighteen months and two years during which time the patient becomes increasingly ill until the point is reached about six months before death when the patient is admitted to hospital.

102 Although pressed to give some forecast Dr Furner claimed there were insufficient statistics for the survival of people who became infected after 1996 and who had access to anti-retroviral therapy. She said;

“It is my opinion at the moment that we are optimistic that patients will survive to twenty years but some patients may not but I don’t have any data.

103 Doing the best I can I have made an assumption that the period before which the plaintiff will become afflicted with an AIDS defining illness will be approximately fifteen years after the date of infection (2014) and thereafter she will have between twelve and eighteen months before she dies (2016).

104 The plaintiff will receive treatment for her depressive condition and, on the evidence before me, probably will benefit by it. However I bear in mind the views of the psychiatrists called on behalf of the plaintiff and the defendant that she remains vulnerable to depressive episodes and may have difficulty coping as her condition worsens. There will be periods when she will not be able to work at all because of bouts of depression and/or because of the possible side effects from the anti-retroviral therapy.

105 The evidence at the present time is that she is able to work and, I infer, that although her decision to work part-time has, in part, been due to her depressive illness that ought not preclude her from working in the future should she decide to do so.

106 An issue has been raised concerning the plaintiff’s entitlement to damages in the nature of special damages for the care of her second child during that period of her life when she can no longer care for him – i.e. from about the year 2014 when he will be twelve.

107 As I have said her HIV infection is unlikely to affect her earning capacity to a great extent during the next eleven or twelve years. There will be diminution of earning capacity by reason of her exposure to depressive episodic illnesses and, as I have already mentioned, the possible adverse side effects from the anti-retroviral therapy. But the time will come when she will no longer be able to care for her children. On the assumption I have made concerning her life expectancy and the progression of her disease that will occur in the year about 2014 when her daughter will be 14 and her son 12. It is not disputed she is entitled to have included in her verdict an allowance based on Griffiths v Kerkemeyer (1977) 139 CLR 161 not only for her own care (which in any event is unlikely to be provided for by anybody free of cost) but also for the cost of looking after her daughter until she is aged 18. It is not, however, conceded that any allowance should be made for the care of her son when she is no longer able to provide it.

108 The circumstances surrounding the plaintiff’s relations with the Swedish fiancée and which resulted in her having a second child was not really explored during the proceedings. As I have said it is fairly clear that it will be extremely difficult for him to get permanent residency in this country by reason of his HIV status.

109 In Sullivan v Gordon (1998-1999) 47NSWLR 319 a five member bench of the Court of Appeal considered an entitlement of a plaintiff to receive damages calculated as a type of special damages for the value of the lost capacity to care for children. It overruled an earlier decision of the full Court in Burnicle v Cutelli (1982) 2 NSWLR 26 which had held that while the loss of capacity to look after a child was compensable it sounded only in general damages.

110 A consequence of the decision in Sullivan v Gordon is that the plaintiff can claim damages for injury-caused inability to care for a dependant child. As I have said the defendants do not dispute that the plaintiff is entitled to be compensated for the inability, when it occurs, to care for her first child until she is eighteen.

111 In Sullivan the plaintiff had two children after being tortiously injured with the consequence that she was severely brain damaged and had become irrational and irresponsible. It was submitted on behalf of the defendant that there were three reasons why the plaintiff’s claim for the care of her children should not succeed. First that children were born after the accident subject of the claim should be excluded. Secondly there was no causal nexus between the tortious injury and the loss suffered by the plaintiff; it being asserted that the plaintiff herself broke the connection by deciding to have children. Thirdly that the plaintiff had acted unreasonably in all the circumstance in having more children.

112 The Court held that it mattered not whether the children were born before or after the accident but appeared to conclude that it was open to a defendant to argue that, that there may be a break in the chain of causation and/or the plaintiff had not acted reasonably in having children to deny, in a given case, a plaintiff’s entitlement to damages for the care of a child.

113 The plaintiff was successful in Sullivan but her success depended on the Court being satisfied that her pregnancies were foreseeable and that the accident caused her to become irresponsible and reduced her ability to determine whether or not she should have children either at all or in the circumstances in which she conceived and bore them. Thus it was held that although her conduct might be viewed objectively as unreasonable it was the result of the respondent’s negligence and hence there was no break in the chain of causation. That was the view of Beazley JA and concurred in by the Chief Justice, Powell JA and Stein JA. Mason P referred to the limits that may be necessary in adapting Griffiths v Kerkemeyer to the case of an injured plaintiff caring for children. His Honour, linked the birth of the children to the brain damage suffered by the plaintiff as did Beazley JA. However his Honour opined the result would be the same even if there were no link between the birth of a child and the injury the subject of the litigation.

114 Conceiving and raising children is a natural incident of the human condition. Uninstructed I would have thought there was some force in the argument that a plaintiff is entitled to claim damages for an inability to care for a dependant child even if there is no “link” between the birth of a child and the injury the subject of the litigation. However my understanding of the decision in Sullivan is that a link must be established. In the present case there is, plainly enough, a direct link between the birth of the plaintiff’s daughter and the negligence of the defendants. That link, however, is wholly absent in the birth of the second child and it seems to me therefore on the authority of Sullivan the plaintiff is not entitled to damages calculated by reference to cost of care for her son when she can no longer afford it.

115 I have concluded that the plaintiff will be precluded from exploiting what would otherwise have been her earning capacity by reason of recurring bouts of depressive illness and/or adverse side effects from the anti-retroviral therapy. As I would understand it the case has not been presented that the plaintiff is entitled to compensation for the care of her children (or for herself) until the year 2008 that being the year the plaintiff asks me to accept she will suffer from an AIDS defining illness. I have found that, contrary to the submission on her behalf, the period of time is longer but not as long as that contended for by the defendants. At the present time she has a capacity to earn $488 per week net were she working full-time. I am assuming in the near future she will return to work on a part-time basis largely because of her two children and the fact that the father of the second child is unlikely to be given permission to reside permanently in Australia. Doing the best I can I would estimate a loss of earning capacity referrable to her infection involving bouts of major depressive illness together with fatigue and the possible adverse effects of drugs at $80 per week until 2014 and thereafter when, on my findings she will be deprived of any capacity to work, $488 per week for 2 years (to the year 2016). The present value of $80 per week for 11 years is $39,200. The present value of total loss of earning capacity which will not happen for another 11 years is $35,919.

116 So far as the lost years are concerned the parties are not in issue as to the basis of calculation. However the plaintiff submits that her lost years will begin at about the year 2010 and the defendant submits that the lost years will commence in about the year 2021. I have assumed the lost years will commence about the year 2015.

117 Both the plaintiff and the defendant accept as the basis for the lost years claim a weekly sum of $118 per week. On my assessment her damages should be calculated for a period of 24 years at the rate of $118 per week and deferred for a period of 12 years i.e. (the present value of $118 per week for a period of 24 years deferred for 12 years (using the 3% tables) - $74,189.

118 There is little dispute between the plaintiff and the defendants concerning the cost of HIV care. The defendant acknowledges the present value of the cost referrable to HIV care in hospital and drugs is $123,310. The plaintiff claims the sum of $169,111. The difference between the two is, in essence, referrable to the plaintiff claiming that her HIV care cost will commence and accelerate in about the year 2008 whereas the defendant submits it will not happen until about the year 2019. I have found, doing the best I can, that it will not happen until about the year 2015. Doing the best I can I award the plaintiff the sum of $150,000 referrable to these costs.

119 I award general damages in the sum of $205,000. It has been submitted to me that I should make a separate award by reference to loss of expectation of life. However I have included in the allowance referred to above that the plaintiff has lost the expectation of life. Because of her infection she is living with the certainty of an early death on any view of the matter. Life prolonging therapy will probably have adverse consequences for her. I award interest on $100,000 parcel of the $205,000 referred to above.

120 On my understanding of the evidence there will be no requirement for care for the plaintiff or her elder child until the commencement of an AIDS defining illness which I have found will occur about the year 2014 (except, intermittently, if there are adverse effects from the anti-retroviral therapy and/or a recurrence of her depressive illness).

121 I do not know with any precision when the plaintiff will commence anti-retroviral therapy or how effective it will be but it is clear that on the assumption I have made concerning the onset of an AIDS defining illness the plaintiff will need a carer and someone to care for her child about the year 2014. In my opinion the plaintiff is entitled to a carer for a period of approximately 12 to 18 months before spending her last 6 months in hospital. She has claimed the cost of a registered nurse for a period of 18 months at 24 hours per day. That would cost approximately $46 per hour if present day rates were applicable. On that basis the plaintiff has claimed the sum of $530,531 which of course she acknowledges must be deferred. If it is deferred for 11 years (adopting the 3% tables) it would amount to approximately $425,000. However in my opinion it has not been established that during the period before the plaintiff enters hospital she will need a registered nurse 24 hours a day at an approximate cost in present day dollars of $7,560 per week. Doing the best I can I find the plaintiff will require a carer 10 hours per day 7 days a week for 78 weeks at $25 per hour amounting to $136,500 which of course must be discounted for a deferral of 11 years to $98,553.

122 In my opinion the plaintiff’s daughter will require care from age 14 (commencing 2014) until she is 18 (in 2018). During these 4 years it is unlikely the plaintiff will be able to care for her daughter at all. Accordingly I allow for a carer at 8 hours per day at $17 per hour for a period of 102 weeks (2014-2016) and for 4 hours per day at $17 per hour for a period of 102 weeks (2016-2018). The deferred value for each period is $70,109 and $32,092 respectively – totalling $102,201.

123 I have calculated superannuation loss as being 9% on the loss of earnings to date (excluding interest) and 9% for loss of earnings in the future (including the lost years).

124 There has been no agreement about out of pocket expenses. In written submissions the defendant drew to the attention of the plaintiff that there had been no agreement on out of pocket expenses and agreement was not able to be reached on the information presently before the Court. No further material has been advanced by the plaintiff. The plaintiff, in its submission, has said the out of pockets were to be agreed upon. There would have been an evident difficulty in me raising the matter at this late stage because to have done so would have signalled with mere certainty that I was proposing to enter a verdict for the plaintiff. What I propose to do is to enter a verdict referrable to the heads of damages I have set out in this judgment and later to determine, if that course is open to me, what amount should be awarded to the plaintiff for past out of pocket expenses.

Summary

125 (1) General damages (including damages for

loss of expectation of life) $205,000 (Interest on general damages
2% of $100,000 $4,000
(2) Loss of earning to date together
with interest at 2% $3,060

(3) Damages for loss of earning capacity
@ $80 per week partial loss of
earning capacity 2003 – 2014 $39,200
Total loss of earning capacity 2014-2016 $35,919 $75,119

(4) Lost years $74,189

(5) Future medical hospital expenses etc $150,000

(6) Future care for the plaintiff $102,201

(7) Future care for plaintiff’s elder child $100,161

(8) Loss of superannuation benefits
being 9% of items 2,3 and 4 $13,707

Sum total $727,437

**********

Last Modified: 06/16/2003

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Citations

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

Most Recent Citation

AAA v BBB [2005] WASC 139

Cases Citing This Decision

2

Kate Bradley (by her Tutor Michael Bradley) v Lily Heimhilcher [2003] NSWSC 684

AAA v BBB [2005] WASC 139

Cases Cited

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Statutory Material Cited

2

Astley v AusTrust Ltd [1999] HCA 6

Griffiths v Kerkemeyer [1977] HCA 45

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