Harvey & 1 Ors v PD [2004] NSWCA 97

Reported Decision : 59 NSWLR 639

New South Wales Court of Appeal

CITATION : Harvey & 1 Ors v PD [2004] NSWCA 97 HEARING DATE(S) : 14 October 2003 JUDGMENT DATE : 30 March 2004

JUDGMENT 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 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 CASES CITED : 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 [1999] 198 CLR 180 Pledge v Roads & Traffic Authority [2004] HCA 13 Re "Jane" (1988) 94 FLR 1 Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091 Rogers v Whitaker (1992) 175 CLR 479 Ruddock v Taylor [2003] NSWCA 262 Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 Sullivan v Gordon (1998-99) 47 NSWLR 319 Sullivan v Moody (2001) 207 CLR 562 Tambree v Travel Compensation Fund [2004] NSWCA 24 Van Gervan v Fenton (1992) 175 CLR 327 Dr Nicholas HARVEY (First Appellant) PARTIES : Dr King Weng CHEN (Second Appellant) PD (Respondent) FILE NUMBER(S) : CA 40543/03 COUNSEL : P Brereton, SC/ J Lonergan (Appellants) J Anderson/ P Strain (Respondent) SOLICITORS : David Ian Brown (Appellants) Maurice Blackburn Cashman (Respondent)