$750,000 payout for HIV infection
A NSW man has successfully sued his ex-boyfriend for $750,000 for knowingly infecting him with HIV.
In what is believed to be an Australian first, the plaintiff, who cannot be named, was awarded a range of damages by the court for his pain and suffering, loss of income and loss of life expectancy, adding up to a total of $757,487.
In a rare move, the court apportioned $50,000 in exemplary damages as an expression of its “disapproval of disgraceful conduct”.
The plaintiff and the defendant, who also cannot be named, began a relationship in early 2004 and had repeated conversations about their HIV status. The court accepted that the defendant assured he was negative and, after consenting to engage in unprotected sex, the plaintiff contracted HIV.
“When the doctor put his hand on my leg, I just burst out crying,” the plaintiff told Sydney Star Observer.
“The strain of it all got to me and I attempted suicide, because I couldn’t live with the fact that I could have infected my partner.”
Three weeks after his diagnosis the plaintiff learned his partner had been diagnosed HIV positive at least a year earlier.
“I was just gobsmacked. I was led to believe I was the one who infected him,” the plaintiff said.
“He didn’t look at me, but said to the specialist, ‘I’m sorry that this has happened’. I just wanted to pick him up and throw him through the wall.”
The plaintiff remained with the defendant for a further three years but ended the relationship after being contacted by another man who believed he had also been infected by the defendant.
“It was the final straw. Besides cheating on me, he had infected me in 2004, and [possibly] another person in 2005.”
The plaintiff said the stress of dealing with a positive diagnosis and a relationship breakdown caused him to have “a total breakdown”. He attempted suicide a second time and was subsequently scheduled under the Mental Health Act and admitted to St Vincent’s Hospital.
He decided to pursue legal action in 2007, reported the matter to police and initiated civil proceedings.
The plaintiff sought legal direction but was initially told there was nothing he could do.
“I got very angry. I thought, ‘How could someone infect me and get away with it?’, and there was nothing I could do.”
He acknowledged he had consented to having unsafe sex, “but I didn’t consent to getting infected with HIV”.
Advocates for people living with HIV and organisations from within the HIV sector have never supported legal action over HIV transmission out of fear it could deter people from getting tested and add to the stigma of HIV.
The plaintiff said legal action is not and should not always be an option but “all I wanted was to hear the word ‘sorry’, and an explanation of why he did it. I know I will never hear those words.
“The money side of it is a deterrent to other people, to think twice before you have unsafe sex with someone that you haven’t told you’re positive. It’s a deterrent to [the defendant], and holds him accountable.”
The plaintiff’s lawyer, Alex Maroulis, said, “Each individual has the right to explore legal avenues, as it relates to their circumstances”.
“I think it is wrong for any organisation or person to impose their personal views, to stop that person exploring their rights, civilly and criminally.”
NSW Police are now considering criminal charges against the defendant under the Crimes Act. If charges are laid it would be the first same-sex case of its kind in NSW.
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I’m a HIV pos gay man and have been for 5 yrs and it absolutely scares the fuck out of me that the gay community can turn on its own i refuse to have sex with other men now not because of the fear of giving Hiv to another man but because there is so much hatred and fear generated by gay people and the lack of personal responsibility that the gay community takes for there own sexual health and well being we are becoming a society that wants to pass the blame on other people just because were to ashamed to admit we made a mistake of judgement in the heat of the moment, if you don’t want to catch a STD than the answer is simple then close your fucken legs and become a fucken Christian. This man who has sued his ex partener is one of many people who is paving the way to destroying the gay way of life just for a quick buck, and another thing too people on this site who say people are still dying from Aids were did you get your info from the 70s its a know fact now that people live full lives with Hiv as the medications have improved considerably
and secondly the people don’t usually die from the Hiv virus , but more so the medications as they are toxic to the liver over a long period of time so eat shit :)
I am a heterosexual female who was deliberately exposed to HIV by a man I was seeing in an effort to conceal his involvement with men and positive status. Yes it is criminal to knowingly infect someone. Yes we have a responsibility not to harm others, especially when infected. I feel if you don’t want to risk infecting someone or criminalization why not just wear a condom. Even though everyone should be considered positive, when you are in a relationship with someone you want to trust them to tell you the truth or what’s the purpose. We talk about discrimination…well I think deliberately infecting people does not help matters either. Situations like these prepetuate fear. I wouldn’t have appreciated the disclosure. And I would have wanted to continue the relationship because I loved the person for who they were period. But I was robbed of the option. That is what is criminal!
Mathew- My partner is a Medical Director at a major hospital. I assure you people still die from it.
You really have to ask yourself what is the risk these days compared when people actually died from it? It’s Over It’s Passed! Move On!
I would like to add the Health Act has provisions for people who deliberately transmit reportable diseases. If you know of such people doing this, and have proof, then call the police or contact the Department of Health. Such people can be locked up for the protection of the community. It is a very serious offence to do this. HIV/AIDS is just one of many reportable diseases.
Yani – There is no way at all 10,000 cases would be in court as it is a very tiny amount of people who have acted like this. The overwhelming majority of people with HIV/AIDS never do anything like this. Many people I know who are HIV+ are disgusted by such reckless conduct.
I don’t think we will see 10,000 cases in court. Most HIV positive people don’t have the cash to be worth the law suite. Way too many are in survival mode. This is a particular case involving people in a relationship and in that context as it’s presented above can’t be separated from the other aspects of the relationship. Is this abuse and deceit or were other complex factors involved? It would take a fair bit of deception to have HIV, be in treatment and a partner not to notice.
The real question here is why wasn’t this settled out of court?
This victim did not deserve to be lied to. He did not deserve to get the virus. It was not his fault. Thankfully the jury found that.
Not everyone will respond to treatment for HIV or AIDS. Not everyone will go on living to a ripe old age who has such a virus. Some of those who will live to a ripe old age with HIV may experience some bad side effects from the drugs. It can impact other drugs they need to take for other problems they may develop getting older. I hardly think it is a common cold. Perhaps that is the perception of some. This problem is not unique to our community. It exist in the heterosexual community also as I have said.
People are rightfully outraged by such conduct. Gay or Straight it is criminal to disregard a fellow humans health for your own sadistic pleasure.
Good to see the feeble minded short sighted nonsense of the HIV industry roundly condemned. Deliberately concealing that you have a serious contagious illness and then knowingly doing the thing that spreads it to another, should have legal consequences. Why should HIV be a special case, if someone injected another person with cancer cells most would consider it a crime. Condemning such acts is not the same as condemning people who are HIV positive. I do not agree with the so called transmission offence where failure to disclose HIV status during (safe) sex can be a crime. We all should be approaching casual sexual encounters on the basis that our partner is HIV positive. I certainly do and am sure that I have had sex with many HIV positive people. I have no problem with this. I do not want the person I meet at the sauna for a bit of safe fun turned into a criminal but someone who lies to me and tricks me into doing something that will endanger my life should be treated as a criminal. The first priority of any one involved in the so called HIV industry should be reducing the spread of the disease and then care for those who have it. Both concerns are not contradictory.
Let us consider the following hypotheses, without prejudice: a) the plaintiff’s lawyers first enquiry was ‘how much is the defendent worth?’, b) given Latrobe University’s HIV Futures Six (12/09)findings indicate 43% of hiv patients live below the poverty line, 31% abstain from sex, and 10% of those who do have sex do so exclusively with hiv partners; it seems the pool of available defendants might be small. Is it possible that this plaintiff was simply vexatious toward his former lover, from whom he may likely have extracted substantial compensation anyway under the break-up of relationship laws? How will potential plaintiff’s fare in suing poor hiv defendants, of whom there are clearly many?
Whatever the outcomes of the crucial debate as to criminalisation around the transmission of hiv, are we as gay men content to see defendants sued and jailed over the issue?
I think blaming HIV positive men implicitly with no consideration for the impact such public witch hunts and sweeping statements can have on all our freedoms is just as irresponsible as not disclosing your HIV status and barebacking. Such arguments on either side of the HIV divide don’t consider ‘the other’ or the real issues around sexual citizenship diagnoses and early treatment.
For a community that has been persecuted for centuries the venom towards PLHIV by our very own, is alarming. If one HIV poz guy barebacks then they are all barebackers and don’t disclose to any of their partners. When simply the longitudinal research into the intensive sex partying scene (see Michael Hurley and Garrett Prestage studies) their findings does not support this urban myth.
I think there are two sides to infection 1. The negative man must play his part as ‘Caveat Emptor’ the knowledgeable gay man who is taking all responsibility for any harm to themselves. A buyer beware clause is considered by certain members of this group as being socially acceptable. 2. Or Cordon Sanitaire which is defined by Mark Davis as a form of quarantine from HIV prevention through using e-dating sites profile descriptor fields through words such as clean and disease free, or using the Safe Sex Passport website service in the USA. On either side such virtues expectation of HIV positive and negative men from a deontological ethical stance is based on a logical sense of obligation, duty, and moral care which only led’s to mistaken HIV identity, in which infection is passed on willingly or not.
The stakes are high with HIV evidently worth under a Million bucks, although it may be seen to be invisible in the era of post-AIDS when people are not dying. The risk from the next wave of infection will be caused not by those people in treatment. Taking the Swiss Report into consideration PLHIV in treatment with undetectable viral loads are not infectious and can’t infect partners. This may seem like blasphemy now but so was triple combination therapy not so long ago. How quickly things change in HIV treatment expectations, and how swiftly as a community we have changed our response to HIV in light of these developments.
Infection is not caused by these PLHIV informed and practicing safer sex, but from those who don’t even think they have the virus or could possibly be in any risk of infection. Then there are some who won’t get tested when they read this kind of embedded hatred towards PLHIV. Such statements do exist in the Aussie gay culture I finally can see it in print. Because I experience it every time I go out, ‘His got AIDS’.
Finally that sleeping elephant is front and centre on conversation between the Lycra and undie models. I think gay men are asleep, many are still being panic merchants trapped in the 80s about HIV. Have you not worked out that HIV is manageable and that is it not AIDS. If AIDS and HIV was at crisis levels then we would have more cases in the community but there is less virus in circulation because at least 50% of PLHIV on treatments have undetectable viral loads.
Such views projected on here I consider to be mostly by those non HIV positive ill-informed members of the community. Probably the same guy who take drugs, pops a viagra then head str8 for some backroom scene for bareback sex because it feels so intimate. A sweeping statement I know that all gay guys with a hard viagra d&*k, can’t think straight or make value judgements to have safe sex, so positive people have to do all the work and take the blame for your irresponsible night at the tubs. One guy said to me recently ‘It’s ok there is a morning after pill, its called PEP, you can fuck me raw cum inside me, then I will go to hospitable in the morning and get a script’. PRICELESS or possibly $750K eitherways thats an expensive one night stand.
Mark Davis (Sex, Technology and public health. London : Palgrave MacMillan) extends this view that ‘sexual citizenship’ is subject to the influences of bio-technologies such as Viagra, e-dating, PEP, and even current public health policy around reducing factors that alter sexual practice, risk and pleasure seeking: all contribute to how risk is minimised or misunderstood by sexual citizens. Ownership of infection becomes a blaming game where the unskilled, rejected isolated HIV positive gay man becomes the site of blame, and the innocent HIV negative man has had no part in his or her infection path.
I must agree that we need to debate the issue.
Let everyone remember that our power is limited to the ballot box and we remain an upopular minority.
We can debate the issues that affect and concern us but the people who make the decisions are not part of our community and make the decision on our behalf.
An aspect of this issue that has not been introduced into the discussion is the gay migrant population from third world countries.
The people reading this newspaper are literate and computer literate.
As many of you know a lot of our migrants do not even know the road rules never mind the protocols and procedures for practicing safe sex or accessing testing facilities.
The instances of transmission of HIV without knowledge or consent have occurred amongst and between citizens who have attained a level of literacy to represent those instances.
I suggest there is probably another world out there that we know nothing about because the people in that world cannot or will not represent their experiences to the community.
Lawyer Alex Maroulis of Hillman Laxon Tobias acted for the successful plaintiff in the case reported on the cover of the 28 April edition of your paper. Our firm has a long tradition of support and work for the GLBT community in the varied disciplines in which we practise
In the debate that must follow this ground breaking case, please do not lose sight of the fact that the defendant had wilfully and deliberately transmitted HIV to the plaintiff and had knowingly lied to the plaintiff about his status. In recovering damages in a civil prosecution for deliberate HIV infection, the results could not have been more satisfying for the client, without straying from a fair application of the law. This was not a case of unwitting or unwilling transmission.
It is difficult therefore to understand the reactions of representatives of HIV/AIDS organisations in condemning this achievement for our client and others as a “retrograde” step or as somehow setting a poor precedent. Such comments are based on incorrect underlying assumptions and completely overlook the very deliberate role of the defendant. The evidence submitted and accepted fully by the Court, demonstrated a deliberate and contrived behaviour on the part of the defendant, not only to conceal his HIV status, but also to actively encourage the belief that he was not HIV positive and that his relationship with our client was monogamous, committed and long term. None of these matters was true, although the defendant asserted very strongly to our client that each of them was true and warranted full confidence in unprotected sex.
It needs to also be made clear that this was not a criminal prosecution. Our client sought and recovered damages as compensation for the losses that he has incurred and will incur in the future as the result of the intended and deliberate actions of the defendant in this case.
The consequences for our client include of course, serious health problems, deep ongoing psychological and psychiatric problems, employment difficulties, and ultimately a considerable reduction in life expectancy.
If these consequences had been the result of deliberate action and recklessness by one person to another in a field other than sexual activity, such as assault or fraud, we are sure that the laws of any civil society would provide for compensation to be paid. To argue that the deliberate and reckless action, as the result of sexual activity, removes the responsibility for that conduct from a perpetrator, is unjust and irresponsible.
People, who have full capacity for their decisions, must also accept full responsibility for their actions. When these decisions and actions result in injury to others, then those responsible must be held to account and, if appropriate, compensate their victims.
HILLMAN LAXON TOBIAS
Brian Hillman
Email: [email protected]
Direct line: (02) 9339 2904
Website: http://www.hlt.com.au
John Laxon
Email: [email protected]
Direct line: (02) 9339 2902
Gary Penny
Email: [email protected]
Direct line: (02) 9339 2906
chillisauce100- I see where you are coming from and I understand your concerns.
We already have laws to protect people who knowingly go out and transmit such diseases. They have existed for many years. The enforcement of these laws is greatly lack in our community, as we have seen in recent cases. The Department of Human Services was notified in Victoria, but did not act. It proffered counseling. This was simply the wrong approach to some one going about trying to infect as many people as possible.
As far as Gay Hate Group’s such The Australian Christian Lobby coming to these sites, we can never control what they will or will not write. We are vilified all the time by such groups even if we do nothing but exist.
I think our community needs to have this debate. People are rightly angry about what a tiny minority of people are doing. As I said this is not just a problem with our community. There have been high profile cases of heterosexual men passing on the virus knowingly. We are not talking about a condom breaking. We are talking about serious criminal activity that has devastating consequences.
chillisauce100, I think you miss the point.
How I see it.
Where the HIV+ person has disclosed, the negative person is accepting the risk if they continue to have unsafe sex.
For HIV+ persons who don’t disclose, if they take all precautions and have safe sex, and inform their partner if a condom breaks so they can take PEP – also not an issue, as all precaustions taken to protect negative partner.
For the MINORITY of HIV+ persons who do not disclose nor seek to find out their partners status and have unsafe sex, negative partner has rights to take action if they become HIV+.
I know this puts the onus on the HIV+ person, but they are the one with the knowledge. Would this make testing less attractive to some? Maybe.
But. These policies have evolved from an era where there was no effective treatment, and testing really didn’t achieve anything but help prevent transmission.
Today, testing is even more important as early treatment is proven to save lives.
Rather than continue with the status quo that has evolved. Our communities need to have a complete and honest rethink and debate about what HIV in this millenia means, not fall back on old political positions, that may no longer serve the prevention of an epidemic.
Am I completely right in what I am suggesting, probably not – and its a lot more complex than what is presented here. But placing almost no onus on someone who deliberatly lies and knowingly transmits a life threatening disease to another is not the way to go.
chilli sauce…its about time the gay community makes a lot of noise about this issue, no matter what the cost!….and there are individuals amongst us who should be detained!
Dear Folks, Please be careful what you ask for.
Non-gay groups read this website and can and will use the opinions expressed hear to support their policies.
People responding to this article are saying things like;
The government did not act
No enforcement from the police
The cost of doing nothing is huge
Not criminalising HIV transmission is doing a disservive to HIV negative people
People will take these comments as support for proposals to detain HIV positive people.
They already detain refugees – it is not imprisonment it is detention – for the safety of the Australian community
If the gay community makes too much noise about this matter the Christian community will come to our aid and propose detention for HIV positive people to protect – ‘the gay community’
If you keep complaining about a very complex and complicated issue without offering any sensible solution but rather offer insensible solutions you will do more harm to the community than do the irresponsible and indifferent people who knowingly transmit the virus.
Protect yourself and do no harm to others.
Tens of thousands could begin prosecutions – so far, apart from Michael Neal in Victoria (2008), this fellow got caught! Now, what about the tens of thousands, who willingly participate in unprotected sex, even seek it, even when potential partners advise their psitive status; to what extent are they liable for their own outcomes? There may be no end to all of this, especially for the greedy lawyers!
I have to say good on the person for standing up and saving others. This is not a problem unique to our community. Almost everyone with AIDS does not act like this, but our community is no different from others. AIDS does not discriminate and neither should police enforcement of our laws. AIDS should not be treated differently to many other diseases.
We need a stronger police commitment and I think a special unit to deal with the sensitivity of such crimes. We have the laws to lock these people up and we should. People should feel confident if they report such crimes they will be investigated as any crime would. If I have Tuberculosis that is active and go onto a plane, I will be locked up.
In Victoria when the government did not act, we had a terrible case of many people getting infected by a single person deliberately infecting others. That is what happens with no enforcement from the police. The cost of doing nothing is huge.
Sadly, I think though some people have a suicide yearning by having unprotected sex with strangers. A lot of research and work needs to be done in this area, as well as those that knowingly infect others.
From a public health perspective, the criminalisation of HIV transmission would be a substantial set back and may discourage testing.
On the other hand , if what I have heard around the traps is true, the NSW Health panel that deals with reports of people who are HIV-positive deliberately putting others at risk of infection, has for many years pretty much only supported police investigations into heterosexual transmissions, apparently putting forth the view that as all gay men should know about HIV, it would be difficult for a gay HIV-negative man to claim they were not aware of the risk they are taking by having unprotected sex.
Do HIV-positive men do everything they can to prevent passing HIV on to others? I am sure that most do. But there certainly seem to be those that make an assumption that if you don’t ask their status, or don’t reach for the condom, you must be positive too. Not to mention a SMALL number that just don’t seem to care, or deliberately lie about their status or remove condoms without their sexual partners consent. Are there laws in NSW that make this illegal? Yes. Are they enforced? No. Does the community and the law do enough to put in place measures that will encourage this minority of HIV-positive men that put others at risk to act responsibly? I will leave this to your readers to consider.
This case probably means that unless HIV-positive gay men are completely and candidly open about their HIV-positive status when having unsafe-sex, they now run the risk of losing their homes and assets. Watch for a sudden run of civil court proceedings as gay men, who have been infected by gay men who knew they were HIV-positive, seek compensation and/or retribution. For many reasons, disclosure can be extremely difficult for HIV-positive men, but from now on, its may be a HIV-positive person’s only legal defence.
The responses to this case by our community organisations speak about their concern that criminalisation of HIV transmission may discourage testing and that it is everyone’s responsibility to protect themselves. This does a disservice to the HIV-negative people they are also meant to represent. If a HIV-negative person is deliberately and knowingly infected, or put at substantial risk of infection, without their full informed consent do they not deserve the support of their community organisations and the right of legal redress?
as far as i see its murder!
And here they come the weasel words of the AIDS industry. This guy repeatedly lied to his partner and infected him with HIV, say agian to yourself if you’ve missed it. I will bloody well stigmatise this dude because he is a lowlife and a pathological something (I assume the industry can say he had “mental health problems”). No-one is talking about criminalising transmission but you know what transmitting HIV when you know you’ve got it is criminal, if not in common law than in moral/ karmic/eye for an eye/ fair go law. If people don’t get tested so they can’t be charged then they must have some idea that they are positive (or had a risky event) and don’t want to deal with the adult world where they are responsible for their actions. Stop being apologists ACON, positive life for the childish immature behaviour of some of your “communities”.
Aids groups that don’t acknowledge others legal rights are a fraud on the GLBT community: they do not represent AIDS sufferers’ best interests.
The $750,000 won in compensation will go someway to give the recipient a half-decent life, a cost these groups now do not have to find.
Their small-mindedness thinks that because other achieve some justice, all AIDS suffers will not come forward is not an evidence-based approach and, in this case, shows, they are clearly wrong.
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Andrew Woodhouse
I applaud this courageous individual for taking action. The responses from ACON, HALC and PL seem to infer that he should not have stood up for himself. How is this serving the community rather than their political agenda??? I find it abhorrent that we should wait for someone to knowingly infect multiple people before doing anything. People do not dodge being charged with physically assaulting one person just because they haven’t done it twice. While I understand the concern with people not testing so they can’t “lie” there is somewhere in between these arguements. I too am glad that this issue is on the table and condoms are being talked about.
Finally the elephant in the room is being talked about. Contrary to what ACON CEO Nicolas Parhill says there are significant numbers of hiv positive men in our community who could not give a dammn about the health and wellbeing of their sexual partners and their community. They lie about their status , they coerce weak minded or vulnerable individuals to have bareback sex with them , i have even experience the morally reprehensible actions of such an individual at a sex on premises while using a glory hole doing the quick ‘mouth to arse swap over’ without my knowledge or consent.To my horror i found myself having without my consent bareback sex. Over the years on many occasions with casual partners the sex session has started with the use of condoms and the minute my back is turned the condom has been ripped of or a raw arse is suddenly and aggressiveley offered. I have even had individuals do the “lube swap” that is stating of with the condom compatible waterbased type only to discover half way through baby oil has suddenly replaced it and to my horror the condom has melted inside my hiv postive partners arse.There are evil and dangerous individuals amongst us …beware!