Guide to Australian HIV Laws and Policies for Healthcare Professionals
Civil law is the type of law used when one person sues another for an injury or interference to their person, their reputation or property. The person who initiates the action (the Plaintiff) asks for ‘damages’ (money) to be awarded, and these damages are paid by the accused (the Defendant). That means civil action is only useful when the Defendant has assets and can pay, noting the Court can force release of assets. Importantly, the standard of proof for civil law is lower than that required under criminal law: Facts must be proved ‘on the balance of probabilities’ (civil law) compared to ‘beyond reasonable doubt’ (criminal law).
In April 2010, the first ever Australian civil case related to sexual transmission of HIV resulted in the awarding of substantial damages ($750,000). The evidence provided in the NSW case may be summarised as follows: Two men commenced a relationship in 2004. One of those men (the Defendant) had previously been diagnosed with HIV. The Plaintiff stated that the Defendant assured him he did not have HIV, and the two had unprotected sex on numerous occasions. Some six months into the relationship, the Plaintiff received a phone call from a third party telling him the Defendant was HIV-positive which the Defendant again denied. The Plaintiff then had an HIV test which showed he had HIV. The Plaintiff had a significant reaction to his HIV diagnosis, attempting suicide and then experiencing severe depression and anxiety. He was later scheduled under the NSW Mental Health Act and diagnosed with a chronic post-traumatic stress disorder and recurrent major depressive disorder. The Plaintiff also has a number of physical conditions related to HIV and its treatment. He has not been able to resume his usual work.
It now seems likely that more civil proceedings for sexual transmission of HIV will arise, however, a number of particular characteristics in this case should be noted:
- No defence provided: The case was decided on the Plaintiffs evidence only. Despite being served with a summons, the Defendant did not appear in court, provide his own or other’s written evidence or counter the Plaintiff’s claims. The Plaintiff was not cross examined. Consequently, the Judge made a ‘default judgement’ which means the case was decided without the full examination of evidence a hearing would enable.
- HIV had severe impact: The Plaintiff was able to provide expert medical evidence that his HIV diagnosis had significantly impacted his physical and medical health, including serious episodes requiring significant medical intervention.
- Exemplary damages were awarded: Exemplary damages (which increase the final sum awarded) are rarely applied. However, it seems the Judge wanted to make an example of the Defendant and ‘express the Court’s disapproval of the defendant’s disgraceful conduct’.