Issa v State of NSW

[2002] NSWSC 989

CITATION:	ISSA v State of NSW [2002] NSWSC 989 revised - 25/10/2002
FILE NUMBER(S):	SC 20213 of 1999
HEARING DATE(S):	14/10/02, 15/10/02, 16/10/02
JUDGMENT DATE:	23 October 2002
PARTIES :	Omar ISSA -v- STATE OF NEW SOUTH WALES
JUDGMENT OF:	Cripps AJ

COUNSEL :	Plaintiff- Mr B Toomey QC & Mr B Slowgrove Defendant - Mr P Greenwood SC & Ms K Williams
SOLICITORS:	Plaintiff - Albert A Macri & Co Defendant - Hicksons Solicitors
CATCHWORDS:	Negligence - duty of care - school supervision
DECISION:	Verdict for the defendant and the plaintiff to pay the defendant's costs

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

23 OCTOBER 2002

20213/99 - OMAR ISSA v THE STATE OF NEW SOUTH WALES

JUDGMENT

1 CRIPPS AJ: On 19 April 1999, Omar Issa (the plaintiff) commenced proceedings in the Supreme Court against the State of New South Wales (the first defendant) and the Department of Education (the second defendant) claiming damages for personal injuries said to be the result of an assault by a fellow student at the Birrong Boys’ High School on 2 February 1994. On 17 August 1999, the plaintiff discontinued the proceedings against the second-named defendant.

2 The plaintiff was born on 2 August 1979. In February 1994 the plaintiff, then fourteen years and six months, was starting Year 9. He had been at Birrong Boys’ High School since 1992. The person he claimed had assaulted him, Khaled Mehajer, was also in Year 9 as were two fellow students, Jamal Kanan and Scott Piipari, who both gave evidence in the plaintiff’s case.

3 In February 1994 the student population of Birrong High School was approximately 750 students. There were about 50 teachers.

4 The plaintiff claimed that during the lunch hour on 2 February 1994, he was assaulted by Kahlid Mehayer causing a haemorrhage into his right fronto-parietal region secondary an anterio-venous malformation.

5 The essence of the plaintiff’s claim against the defendant is that the staff at the school failed to supervise adequately or at all, the students in the recreation area during the lunchtime break, and as a consequence, the plaintiff was assaulted (and suffered an injury causing cerebral damage) in circumstances where had supervision been adequate, that would not have happened.

6 The plaintiff alleges that he was assaulted in the recreation area under the library. He said that he was punched around the head ten or fifteen times before being placed in a headlock when he was punched another ten to fifteen times. A history was given to some doctors that he was strangled although the plaintiff did not make that claim in his evidence.

7 It is the plaintiff’s case that the assault lasted about fifteen minutes, without intervention by teachers during which time between twenty and twenty-five boys were chanting “fight, fight, fight” in loud voices. The plaintiff said that after the fight he was taken to the principal’s office but remained at school. He has said that on the afternoon of 2 February 1994, and during the next two days he was feeling hot and suffering from increasingly severe headaches. He complained to his mother about his headaches and was given Panadol. He did not tell her that he had been assaulted. He was at school on 3 and 4 February but shortly after returning home on 4 February (Friday) he had a seizure, collapsed, and was taken first to Auburn District Hospital and later to Westmead Hospital where he remained in intensive care for twelve days, and spent the next eleven months in the Brain Injury Unit. He had suffered a large intracranial haemorrhage, which has resulted in severe and permanent disability. His condition is now stable. He has marked difficulty in walking, a serious deformity of his left arm and significant visual impairment. He will probably never work and will require constant care for the rest of his life.

8 Dr Bentivoglio, a neurosurgeon, expressed the opinion that notwithstanding the period of time between the fight and collapse, the strangulation which he assumed to have occurred when the plaintiff’s assailant applied a headlock more probably than not caused the haemorrhage. That was because the pressure on his neck could have blocked venous return, thereby increasing venous pressure within the arterio-venous malformation. He did not think that there was a relevant connection between the blows, which he assumed were struck, and the collapse.

9 The defendant does not accept the plaintiff was involved in a fight on 2 February 1994. Ms Martin, now the principal of the Black Wattle Bay High School, but then the deputy principal at Birrong Boys’ High School has given evidence. It was her first day as Deputy Principal. She was the person responsible for the supervisory work of teachers during the recreation periods. She had no knowledge of the alleged fight and was not informed that the plaintiff alleged he was assaulted until 1998 - approximately three years after she had left Birrong High.

10 She has given evidence, which I accept, that it was her practice to impress upon staff members their responsibility when supervising students during recreation periods to ensure that as far as possible they would not be exposed to physical injury. Her responsibilities, of course, went beyond this but that is all that is relevant for the purpose of this case.

11 No records of the school were introduced into evidence. Ms Martin was cross-examined concerning whether the roster, identifying teachers who were on duty in 1994, was still available. She expressed the opinion that it was highly unlikely that they would be kept.

12 The defendant points to the inconsistencies in evidence given in the plaintiff’s case. The plaintiff’s version of the events was supported generally by a Mr Piipari and a Mr Kanan, both of whom were friends of the plaintiff and who both claimed to have seen the fight. The defendant is also critical of what was described as improper attempts by the plaintiff to further his cause and to the absence of any of the signs of battery which must have been present, had the assault been as severe as the plaintiff alleges. It points to the circumstance that the plaintiff’s mother gave evidence concerning the plaintiff’s complaints of headache but made no mention to any other signs of injury. I was asked to have regard to the plaintiff’s pre-existing arterio-venous malformation, which rendered him vulnerable to cerebral haemorrhage without any external cause, for example by sneezing – according to Dr Bentivoglio.

13 It would follow, I think, that if the assault was as the plaintiff has alleged, both as to its duration of fifteen minutes and its viciousness and that it continued unnoticed or ignored by staff assigned to recreation duty, a case of negligent supervision has been made out. Moreover, although the plaintiff’s pre 4 February 1994 condition was such that he was vulnerable to a cerebral haemorrhage without any external cause, the temporal proximity of his collapse to that aspect of the assault referred to by Dr Bentivoglio, together with the increasing headaches during that period, points more probably than not to a cause and affect conclusion.

14 But the question remains whether the plaintiff has satisfied me that he was assaulted on 2 February 1994, and if he was, whether the fight continued long enough for it to have been stopped before he as put in a headlock. The defendant does not deny a supervisory regime of the type referred to by Ms Martin, should have been in existence. It asks me to assume, however, that it was in existence and that no breach has been established. The plaintiff’s case is that he was involved in an assault which lasted a long period of time (or at least long enough to have been observed and stopped before he was placed in a headlock). It was his case that in the course of which he was being held in a headlock he suffered an increased venous pressure within the arterio-venous malformation and it was that which led to his haemorrhage.

15 Until 1998, the plaintiff, apparently, could not recall the event. On 4 December 1997, he was interviewed by the Commonwealth Rehabilitation Service and he gave a history in which he stated that:

“he could not remember any details at all about the time of his illness. He stated that the information that he gave is based on what he has been told by other people.”

The second hand history he gave to Ms Wheatley was that he was involved in a fight in 1993 and forty-eight hours later collapsed into unconsciousness.

16 Other doctors recorded histories. Sometimes, obviously, they were given by other people, sometimes by the plaintiff and sometimes where it is reasonable to conclude that probably the version given was not given directly by the plaintiff. These histories were admitted over Mr Greenwood SC’s objection because it seemed to me that because I had to make up my mind concerning the reliability of the plaintiff’s evidence whether or not an event took place as the plaintiff alleged, it seemed to be to be of little moment what other people might have said about the plaintiff on his behalf.

17 The plaintiff gave evidence that in 1998 he recalled the details about the fight after he was spoken to by another school friend, a Mr Soliolo. He said that the other people that he spoke to at that time, a Mr Fareda and Mr Hajaj were friends of his and were also present at the time. Mr Fareda and Mr Hajaj did not give evidence.

18 I record that I draw no inferences adverse to the plaintiff by reason of the failure of Mr Soliolo, Mr Fareda and Mr Hajaj to give evidence. I know that the three were friends of the plaintiff while he was at school but I do not know whether the relations between them are still as they once were. However, as will be seen, both Mr Piipari and Mr Kanan, who gave evidence on behalf of the plaintiff, stated that Mr Soliolo was present at the fight and there is evidence, which I accept, to the effect that Mr Soliolo was not at school on that day. The records of the school tendered in evidence disclosed that, not only was he not at school on 2 February 1994, but beside his name a note which said;

“returned 3 February 1994”.

19 It was put to the plaintiff that he had offered money to Mr Piipari to give evidence. The plaintiff denied this but later said it was a small amount. He denied, as it was put to him, that he offered Mr Piipari $2,000. Later, and after Mr Toomey received some instructions in re-examination he gave evidence to the effect that he had paid him because he was going to help him get people who witnessed the fight and in order to have his co-operation he demanded money. Mr Piipari has given evidence that he was offered $2,000 by the plaintiff to assist him in his case and that the promise was conditional upon the plaintiff receiving a verdict.

20 Both Mr Piipari and Mr Kanan gave evidence as to what took place at lunchtime. Neither of them referred in terms to 2 February 1994, although Mr Piipari said he remembered the fight occurred in 1994, because that was the occasion he started being absent without leave from the school. His version of the events is closer to the plaintiffs than Mr Kanan. Although he does not put a time period on the fight it is apparent that, on his version, it lasted longer than the time suggested by Mr Kanan. Mr Kanan said that he saw a fight. He denied that all the punching was being done by Khaled Mehajer but said that the plaintiff was hitting him only when he was trying to defend himself. Mr Kanan said that he and Mr Soliolo took the plaintiff to the sick bay area. Mr Piipari said that Mr Soliolo was with him when he saw the fight. Mr Kanan said that the plaintiff’s nose was bleeding and blood was coming from his forehead.

21 In cross-examination he admitted that when he was first approached in 1999 to give an account of a fight that occurred at school, he said that it had occurred in the middle of 1993. He agreed that later people told him that his statement was wrong and suggested that it was February 1994, and he adopted that suggestion. He was then asked the following questions and gave the following answers:

“Q. But you don’t remember it occurring on the first day?
A. No.
Q. You remember it occurring in about the middle of the year.
A. Yes.
Q. And you recall don’t you that after the incident with Mr Mehajer Mr Issa continued on at school? Isn’t that right?
A. Yes.
Q. And it was not until some months later that suddenly Mr Issa was no longer at school.
A. Yes that it correct.

22 On behalf of the plaintiff, it was submitted that it is understandable that the plaintiff may have forgotten the details of the fight, and to have recalled the details when they were brought to his attention by Mr Soliolo. Mr Kanan and the plaintiff thought that the Deputy Head Principal at the relevant time was not Ms Martin, who in fact was, but Mr Aldridge who was the Deputy in 1993. However, the plaintiff’s counsel has asked me to assume that a misstatement as to who was the Deputy Principal in 1994 on the first day of school might very well nominate the Deputy Principal on the last day of 1993.

23 On behalf of the plaintiff I was asked to draw the inference that the failure by the defendant to call Khaled Mehajer should lead me to infer that he would not have helped the defendant’s case. I record that I draw no inference one way or another concerning the failure of either party to call Mr Mehajer. I accept that he was available to give evidence and could have been called by the defendant. I do not know whether he was available to the plaintiff. In his evidence-in-chief, the plaintiff said that although Khaled Mehajer was part of the group he mixed with, he was not a friend of the plaintiffs. But nonetheless I do not regard him as being self evidently in the defendant’s camp.

24 The defendant’s first submission is to the effect that I should not be satisfied on the balance of probabilities that there was a fight between Mr Mehajer and the plaintiff on 2 February 1994. I record that I am not satisfied on the balance of probabilities that there was a fight on that day, in the circumstances proposed to by the plaintiff and his witnesses.

25 Mr Toomey QC submitted that bearing in mind that three people have sworn to a fight having occurred on 2 February 1994, I should not reject that evidence in the absence of compelling evidence to the contrary. Leaving to one side the fact that only the plaintiff described the incident as having happened on 2 February 1994, I do not accept that submission. It is possible that the plaintiff memory was revived following the conversation with Mr Soliolo but my assessment of the plaintiff leads me to conclude that more probably than not what he claims to remember about the fight is what he has been told.

26 For the plaintiff to succeed I must be satisfied on the balance of probabilities that a fight took place between the plaintiff and Mr Khaled Mehajer of such duration that the teacher on duty could and should have stopped it at a time prior to the plaintiff being placed in a headlock. On any view of the matter I reject the submission that the fight lasted for fifteen minutes or anything like that. Accordingly I am not satisfied that even on the assumption that there was a fight between the plaintiff and Mr Khaled Mehajer on 2 February 1994, it lasted long enough that a reasonable level of supervision would have ensured that it was stopped before the headlock episode occurred.

27 I do not dismiss the possibility that there may have been a fight at some time between the plaintiff and Mr Mehajer. But I am not satisfied, on the balance of probabilities that it occurred on 2 February 1994. If it did not happen on that day (or at least if I am not satisfied that it happened on that day) I cannot be satisfied that the present condition of the plaintiff was the result of any negligent conduct by the teachers at the school.

28 Accordingly, there must be a verdict for the defendant. The plaintiff to pay the defendant’s costs.

oOo

Last Modified: 10/28/2002