Court win changes ACC rules for HIV sex cases

Justin Dalley did not tell a woman he was in a relationship with that he was HIV-positive. Photo / Supplied
Justin Dalley did not tell a woman he was in a relationship with that he was HIV-positive. Photo / Supplied

A precedent has been set for people who unwittingly have sex with HIV-positive people to be covered by ACC for mental injury.

In a Court of Appeal's decision released yesterday, a woman won her battle to get ACC compensation for post traumatic stress disorder triggered by finding out her lover was HIV-positive.

In 2004, the woman, who has name suppression, started a four-month relationship with Justin Dalley who was HIV positive but did not tell her. During their relationship, the pair had unprotected sex.

For failing to tell her he was HIV-positive, Dalley was found guilty of criminal nuisance in 2005. He was sentenced to 300 hours' community work and six months' supervision, and ordered to pay the woman $1000 towards her counselling and other costs.

Though the woman did not become infected with the virus, she suffered post traumatic stress disorder because of the experience.

She also lost her job because of the time she took off work due to the stress.

"You wake up every morning with the realisation that you could possibly die from a horrible, horrible death," the woman told One News.

The woman sought compensation from ACC for her mental injury. But it refused to cover her, saying she consented to having sex and criminal nuisance was not on its list of crimes for cover.

The woman has since been fighting to reverse this decision and took her case through the district and high courts which both ruled in favour of ACC.

But in yesterday's decision, the Court of Appeal found that she had been sexually violated because Dalley did not tell her that he was HIV-positive - his non-disclosure of his HIV status invalidated her consent to have sex.

As mental injury as a result of sexual violation was covered by ACC, the woman was eligible for cover, the court ruled.

"We agree that unprotected sexual intercourse with a person who has not disclosed his or her HIV status changes the nature and quality of the act because of the associated risk of serious harm."

The woman's lawyer, John Miller, said she was obviously very pleased with the decision following her six-year legal battle. "It's been a long time, a long battle," he told One News.

ACC said it accepted the ruling and was calculating how much money the woman had lost in potential earnings.

- Staff reporter

- NZ Herald

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