Sidhoum v Minister for Education
[2022] WADC 35
•22 APRIL 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SIDHOUM -v- MINISTER FOR EDUCATION [2022] WADC 35
CORAM: TROY DCJ
HEARD: 31 JANUARY & 2, 3 & 4 FEBRUARY 2022
AND WRITTEN SUBMISSIONS RECEIVED ON 25 FEBRUARY & 4 MARCH 2022
DELIVERED : 22 APRIL 2022
FILE NO/S: CIV 688 of 2016
BETWEEN: HEYKEL SIDHOUM
Plaintiff
AND
MINISTER FOR EDUCATION
Defendant
Catchwords:
Torts - Negligence - Duty of care - Duty owed by schools to protect students from actions of other students - Admissibility of document as a Business Record - Contributory Negligence - Quantum - Psychiatric condition
Legislation:
Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA)
Result:
Judgment for the plaintiff
Contributory negligence assessed at 35%
Representation:
Counsel:
| Plaintiff | : | Ms F A Stanton |
| Defendant | : | Ms H M Cormann |
Solicitors:
| Plaintiff | : | Anthony Prime Legal Services |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Allbrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Barker v The State of South Australia (1978) 19 SASR 83
Cavill v The State of Western Australia [2008] WASCA 108
Coffman v The Queen [2010] WASCA 54
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
Donohue v Director of Public Prosecutions (WA) (2011) 215 A Crim R 1
Geyer v Downs [1975] 2 NSWLR 835
Gugiatti v Servite College Council Inc [2004] WASCA 5
H v Pennell and The State of South Australia (1987) 46 SASR 158
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher (1999) 197 CLR 138
Johns v Minister of Education (1981) 28 SASR 206
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
McKay v Commissioner of Main Roads (No 2) [2010] WASC 153
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110
New South Wales v Griffin [2004] NSWCA 17
New South Wales v Lepore; Samin v The State of Queensland; Rich v The State of Queensland (2003) 212 CLR 511
Nikolich v Webb [2020] WASCA 169
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Ratten v The Queen [1972] AC 378
Richards v Victoria [1969] VR 136
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Shmee Pty Ltd v Bresam Investments Pty Ltd [2008] VSC 291
Taylor v Fisher [2018] WASCA 126
The Commonwealth of Australia v Introvigne (1982) 150 CLR 258
The State of Victoria v Bryar (1970) 44 ALJR 174
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
White v Redding [2019] NSWCA 152
Wreford v Lyle [2018] WADC 173
Wreford v Lyle [2021] WASCA 20
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Xavier v ROPS Engineering Australia Pty Ltd [2019] WADC 146
TROY DCJ:
Introduction
An example of the object that is at the heart of this trial is photographed below:
It is a plastic computer stand weighing 37 g. If broken apart it ends in two sharp points.
Mr Sidhoum had retained an example of a computer stand and the plaintiff tendered it as exhibit 5.
On 26 February 2013 the plaintiff, Mr Sidhoum, then aged 16, and a number of his classmates misbehaved by, in particular, throwing the stands at each other during a class.[1] The teacher dealt with the situation, but she then left the classroom. Mr Sidhoum and another student, William (Will) Beer (Mr Beer) resumed the activity of throwing stands. Mr Beer threw one of his stands at Mr Sidhoum. I am satisfied that he had prised it apart, so as to expose a sharp point. The point penetrated Mr Sidhoum's left eye causing significant injury with lasting consequences.
[1] Described by the teacher in her incident report as a Mentor Period. Mr Sidhoum testified at ts 102 that the class started off as a mentor class and then transitioned to business.
Was the teacher and therefore the Minister of Education as the defendant negligent? If so, is Mr Sidhoum guilty of contributory negligence and if so to what extent? If liability is established what is the appropriate award of damages?
For the reasons that follow I find that the defendant was negligent. And that Mr Sidhoum is guilty of contributory negligence to the extent of 35%. And that the appropriate award of damages (after a reduction of 35%) is $362,712.50.[2]
[2] To which should also be added any appropriate indemnity from the defendant in respect of any amounts repayable to Medicare Australia and interest on past medical expenses.
Background
Mr Sidhoum was a student in Year 12 at Shenton College. To the knowledge of a number of teachers at the school, he had been diagnosed with attention deficit hyperactivity disorder (ADHD). From late 2011 a treating psychiatrist had prescribed the medication Ritalin.
The teacher, Ms Sandra Davis, was highly experienced. Mr Sidhoum and at least one other student, Mr Beer began throwing the stands at each other. Ms Davis confiscated the stands and put them on her desk.
In its opening written submissions of 25 January 2022 at [79] the defendant contended for the possibility that Mr Beer retained one or more of these stands without Ms Davis' knowledge. This is based upon interviews conducted on the same day as the incident, with four students.[3] One of the four students, Suzana Paravac, is reported to have said that Mr Beer appeared to still have a stand in his possession which he did not give to Ms Davis and which he then threw at Mr Sidhoum. None of these students gave evidence at the trial. I deal with the admissibility of the summary of those interviews later in these reasons.
[3] Book of Documents Volume 1, tendered as exhibit 1 at page 68, Trial Brief (TB) 68.
Ms Davis then directed Mr Sidhoum, Mr Beer and another boy, James Stewart (Mr Stewart), to sit on the floor. Mr Stewart became angry. Ms Davis told Mr Stewart to leave the classroom, which he did. After a gap in time, the length of which is in dispute, Ms Davis went out to speak to him.
With Ms Davis outside the classroom, Mr Beer retrieved the stands from Ms Davis' desk. Mr Sidhoum also looked around for a stand to throw. Whilst he was doing so, Mr Beer threw one of his stands at Mr Sidhoum. The point penetrated Mr Sidhoum's left eye causing significant injury with lasting consequences.
The defendant is the Minister of Education. The defendant accepts, as high authority makes clear,[4] that there is a non-delegable duty of a school, or school authority, to take reasonable care for the safety of students. Whilst performance of the duty to ensure that reasonable steps are taken may be delegated to teachers and others, delegating the performance does not discharge the school's duty. Where the school or school authority, here the Minister of Education as the defendant, delegates the performance of the duty to a teacher, it is liable if the teacher fails to take reasonable care to prevent harm to the student.
[4] The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 and New South Wales v Lepore; Samin v The State of Queensland; Rich v The State of Queensland (2003) 212 CLR 511.
Quantum as a whole has not been agreed, although a number of components have been.
By reference to the pleadings, the issues are:
•What is the nature of the duty of care that the defendant owed to Mr Sidhoum?
•Did the defendant breach that duty of care?
•Did any breach of duty cause Mr Sidhoum to suffer injury, loss or damage?
•If relevant, is Mr Sidhoum guilty of contributory negligence?
•If so, to what extent?
•If relevant, what is the quantum of the loss recoverable as general damages?
•In particular, has the plaintiff established that Mr Sidhoum is suffering from a recognised psychiatric condition, namely post‑traumatic stress disorder (PTSD)?
In terms of liability, the disputed factual matters are, firstly, the extent to which the defendant knew, or should have known, the extent to which Mr Sidhoum and other students posed a potential threat to one another as of 26 February 2013.
Secondly, whether the behaviour, prior to the incident, was as bad as Mr Sidhoum has alleged.
Thirdly, and most importantly, whether the class had settled and was working quietly for 10 minutes between the confiscation of the stands and Ms Davis leaving the classroom. The plaintiff asserts that there was only a couple of seconds between these two events.
In its opening written submissions of 25 January 2022, the defendant contended that Ms Davis was able to observe events in the classroom through a window in the classroom door when she was in the corridor dealing with Mr Stewart. I do not understand this submission to be maintained.
Evidence at trial
In terms of liability, the only witness of fact who gave evidence at the trial was Mr Sidhoum. Sadly, Ms Davis died in 2014. Neither party called any of the other students who were in the classroom that day. The defendant called Mr Michael Morgan who was the principal at Shenton College in February 2013, as he is today. The defendant also called the former associate or assistant (the terms are used interchangeably) principal, Ms Suzanne Pendlebury who is now retired.
Issues of admissibility
There is some complexity concerning the admissibility of various items of evidence. It is useful to set out the controversies in tabular form:
Item of evidence Date TB Page Basis of objection (solely on behalf of plaintiff, unless otherwise stated) Ultimate ruling Mr Sidhoum's evidence - - None N/A Ms Davis' written incident report 26.02.13 70 None N/A Ms Kane's5 report of interviews with four students 26.02.13 68-69 Objected to by both parties.
For the plaintiff on basis that it is not a business record.
The plaintiff submits that if, over objection, the Review Document is received, this document should also be received.
Without repetition, that applies to all documents that the plaintiff otherwise takes objection to.
Inadmissible Mr Morgan's
Acknowledgement of school incident form
26.02.13
(updated on 01.03.13)
Document 18
62-67[5]
Hearsay.
Not Business Record.
Despite its overall objection, the plaintiff submits that it is open to the court to find that the passages at pages 63 and 65, whilst hearsay, are, given timing of their creation, reliable and should be admitted (presumably as part of the res gestae).[6]
Inadmissible applying s 76C(6) Summary of events of 26.02.13[7] by Ms York, the school admin officer[8] undated 95
(part of document 25)
Hearsay.
Not Business Record.
Admissible but irrelevant to any disputed fact Incident report, broadly as the report at p63 save that the four students who were interviewed are named. undated 96
(part of document 25)
Hearsay.
Not Business Record.
Inadmissible Minutes of meeting with Will Beer and his parents 27.02.13 71-72 Objected to by both parties.
For the plaintiff on basis that not a business record.
Inadmissible Review Document Undated but no earlier than 01.03.13 Document 22
At pp73-75
Hearsay.
Not Business Record.
In alternative should be excluded under s79C(6) discretion
Inadmissible applying s79C(6) Accident/Incident report 07.03.13 82
(part of document 25. Pages 83-89, 94 & 97-98 already dealt with)
Hearsay.
Not Business Record.
Admissible Correspondence 07.03.13 to
16.03.13
90-93 Hearsay.
Not Business Record.
Admissible but irrelevant to any disputed fact [5] Page 62 is the record of the 26 February 2013 email submitting the form at page 63. Pages 64 and 67 are blank. Page 65 is an update to the form at page 63 completed on 1 March 2013, seemingly attaching the document at page 66 which is addressed separately.
[6] As set out in submissions filed on behalf of the plaintiff on 15 March 2022 in response to a query sent to the parties on behalf of the court on 11 March 2022. The defendant sought leave, which was granted, to file submissions in response on 18 March 2022, to which the plaintiff almost immediately responded with further submissions.
[7] Erroneously referred to as 25.02.13.
[8] Counter signed by three others.
The review document was prepared by Ms Pendlebury, and seemingly saved (given the reference number in the footer) by Mr Morgan.[9] In closing written submissions, the plaintiff refers to it as 'the Review Document' given its heading, 'REVIEW of Procedure and policies following the Critical Incident on 26 February 2013'. I will adopt that description.
[9] TB 73 - TB 75 and ts 188.
The need to consider the admissibility of the Review Document arises in conjunction with the contentious issue of the extent to which the class had settled in between the episode when the boys were throwing computer stands and when Ms Davis went out into the corridor to speak to Mr Stewart.
Nature of the duty of care
The defendant admits it owed Mr Sidhoum a duty to take reasonable precautions to protect him against reasonably foreseeable risks of harm.[10]
[10] Amended Defence, par 4 and written opening submissions, par 4.
The special nature of a school's non-delegable duty of care means that it cannot be expressed merely in terms of refraining from doing something that involves a foreseeable risk of injury. It is a positive duty to take reasonable care to provide a safe school environment.[11]
[11] Lepore [104] (Gaudron J).
A breach of duty can arise if a teacher fails to maintain discipline when he or she knows that much of his/her class was engaged in a dangerous activity.In The State of Victoria v Bryar,[12] cited with approval by McHugh J in Lepore,[13] students fired paper pellets at one another using elastic bands. The teacher had seen the majority of his pupils engaged 'in a concentrated exchange of paper pellets fired by means of elastic bands and that he so far condoned this indiscipline as to do nothing about it'. That is not the case here.
[12] The State of Victoria v Bryar (1970) 44 ALJR 174.
[13] Lepore [158].
The defendant's duty, through his[14] servants and agents, including Ms Davis and those who were responsible for directing her, included maintaining proper supervision of Mr Sidhoum and other students when they were in the classroom.
[14] The Minister at the relevant time being male.
This duty is not one to insure against injury, but to take reasonable care to prevent it. A responsibility to take reasonable care for the safety of another, or to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm.[15] Safety in this context means free of a foreseeable risk of harm.[16]
[15] Lepore [31] (Gleeson CJ); [103] (Gaudron J); [159] (McHugh J) and [261] (Gummow & Hayne JJ).
[16] Lepore [103] (Gaudron J).
A school's duty must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards. A school must take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury. The school must also take all reasonable care to see that the system is carried out.[17]
[17] Introvigne (274) ‑ (275) (Murphy J).
The duty of care does not require that 16‑year-old boys be kept under constant observation and supervision.[18] That does not mean that no supervision was called for here. It has been said that it is notorious that school pupils in large numbers, if left to their own devices in a recreation area, will on occasions engage in activities involving some risk of personal injury.[19] Here, it is alleged that a small group (the plaintiff does not distinctly assert that the class size exceeded nine students) of students were left to their own devices in a classroom.
[18] Introvigne (265) (Mason J).
[19] Introvigne (266) (Mason J).
For the reasons explained in Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba,[20] it is not reasonable to have a system in which children are observed during particular activities for every single moment of time.[21] That case involved an injury on a 'flying fox' in a playground, as opposed to a classroom.
[20] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161.
[21] Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [25] (Hayne, Callinan & Heydon JJ).
The defendant relies on that small class size, the fact that the students were final year students and were present in a class for teaching purposes. They were not in a playground, or playing sports, nor were they engaging in authorised or approved activities that had a risk of harm attached.
As White J noted in H v Pennell and The State of South Australia[22] what constitutes adequate or inadequate supervision depends on all the circumstances.
[22] H v Pennell and The State of South Australia (1987) 46 SASR 158, 166.
As Glass JA said in Geyer v Downs,[23] the duty of care exists,
not only to avoid external dangers which might threaten immature children, but also to prevent them inflicting injury on each other.
[23] Geyer v Downs [1975] 2 NSWLR 835, 845.
Contended breach of duty of care in this case
By reference to the formal pleadings, as pressed at trial, Mr Sidhoum asserts that, through Ms Davis, the school failed to adequately supervise the students in the classroom.[24] I understand this to be a reference to the quite extraordinary misbehaviour Mr Sidhoum described in his evidence, along with the initial throwing of the stands. In particular, Ms Davis failed to adequately supervise Mr Sidhoum when she knew, or ought to have known, that he had ADHD and may behave impulsively in the absence of adequate supervision. Further, Ms Davis knew, or ought to have known, that Mr Sidhoum was known to be uncooperative, lacked concentration and was easily distracted from his work.
[24] Particulars of negligence in statement of claim, particulars 7.1 ‑ 7.3.
Secondly, and closely linked to the first complaint, the plaintiff pleads that Ms Davis failed to prevent the students from throwing computer stands in the vicinity of, or in the direction of, other students.[25]
[25] Particulars of negligence, particular 7.4.
Thirdly, Ms Davis failed to warn the students, adequately or at all, of the dangers of throwing stands in the vicinity of, or in the direction of, other students.[26]
[26] Particulars of negligence, particular 7.5.
Fourthly, Ms Davis left the stands in a visible and accessible location and then left the classroom. She therefore left two of the very students who had just engaged in this activity unsupervised and with access to the stands.[27] In terms, the plaintiff contends that Ms Davis ought not to have left the room without adequately confiscating the stands.
[27] Particulars of negligence, particulars 7.6 ‑ 7.9.
In its written closing submissions at pars 108 - 110, the plaintiff referred to its pleading that Ms Davis took the stands from the students, put them on her desk, and then left the classroom to speak with Mr Stewart who was sitting outside. The plaintiff submitted that those are the central matters which are alleged to amount to a breach of the duty of care.
I will proceed by regarding the matters complained about in particulars of negligence at particulars 7.1 ‑ 7.4 as forming the necessary contextual background to the events which gave rise to the alleged causative breach of the duty of care, namely vacating the classroom in circumstances where the students had ready access to these potentially dangerous items.
Whilst one might be critical of Ms Davis concerning the lack of discipline in this classroom up to the point where she left the classroom to remonstrate with Mr Stewart, it is not necessary for me to make any specific findings that this amounted to a breach of her duty of care. To repeat, it is the combination of leaving the classroom without taking the stands, in the circumstances that I find existed at the time, that I must focus upon.
In respect of the duty to warn, as particularised at par 7.5, the plaintiff confines itself in its written closing submissions at par 115 as follows:
It is also pleaded that Ms Davis failed to warn the students of the dangers of throwing the computer stands. The defendant pleads that there was no duty to warn because the risk was obvious. The relevant law in relation to the concept of an 'obvious risk' under s 5O of the Civil Liability Act 2002 (WA) 'CLA', and its application to the facts, is dealt with in the plaintiff's amended opening submissions.
In its amended opening submissions, the plaintiff, having rebutted the assertion of an obvious risk, contended at par 99 that:
A warning of that kind is likely to have caused them to cease throwing the computer stands at one another. This is not a case in which an injury was born out of malice or any desire to cause harm. The boys were friends. Mr Beer was devastated by Mr Sidhoum's injury.
I will consider whether there was an obvious risk so as to relieve the defendant of the duty to warn. But if there was not, then there remains a live question on this particular as to whether this particular breach of duty, if established, was causative.
Fifthly, the plaintiff pleads that the school failed to supervise, instruct and/or train its employees, servants or agents in appropriate methods of management and supervision of the students.[28]
[28] Particulars of negligence, particular 7.10.
The defendant denies that it had breached its duty of care. The defendant denies par 7 of the statement of claim and asserts that it took reasonable precautions to avoid the risk of harm.
The defendant asserts that Ms Davis appropriately reprimanded and censured Mr Sidhoum, Mr Beer and Mr Stewart for throwing the stands at each other.[29] She removed the stands from their possession,[30] directed Mr Sidhoum and Mr Beer to sit on the floor, which they did,[31] and directed Mr Stewart to leave the classroom, which he did.[32] Once the students remaining in the classroom had settled, she departed the room to address Mr Stewart.[33]
[29] Amended defence, par (6)(a)(i).
[30] Paragraph (6)(a)(ii).
[31] Paragraph 6(a)(iii).
[32] Paragraph 6(a)(iv).
[33] Paragraph 6(a)(v).
The defendant asserts that it thereby discharged its duty to take reasonable precautions to protect Mr Sidhoum against reasonably foreseeable risks of harm. That leads me to the factual issues which I must resolve.
The school's knowledge of Mr Sidhoum as of 26 February 2013
The defendant accepts it knew that Mr Sidhoum had been diagnosed with ADHD and had suffered learning and concentration difficulties.
Documentary evidence: Reports Years 8 to 10
Mr Sidhoum had attended the school continuously from Year 8. His biannual school reports commence on 30 June 2009. In Year 8 his behaviour and organisational skills were inconsistent in English. He was prone to lack of concentration and distraction in mathematics. He rarely completed set tasks. He was disruptive in society and environment. He talked far too much in class. There was a lack of concentration in health and physical education where he was characterised as a very distracting influence. His behaviour was disrespectful at times in French. He did not concentrate in science and often interfered with other students' learning. He lacked organisation in craft. He was easily distracted in music. He showed little interest in design and technology and was more interested in talking with his friends. He was a disruptive influence in home economics. He produced some good work in computing and did well in dance.[34]
[34] TB 345 - TB 355.
In Year 9, his English teacher referred to his poor behaviour and lack of organisation. He was also quite disruptive and disrespectful. He needed to learn to respect the work of other students in drama. His attitude in health and physical education was very inconsistent. He had difficulty working cooperatively in health and physical education. He needed to stay focused. He made no effort in a particular task in design and technology and was more interested in talking with his friends. He was energetic but had a poor attitude in media.
He found mathematics difficult but his attitude seemed to have improved at the end of each semester. His behaviour in science improved significantly during the second semester. He also showed an improvement in society and environment, having failed 80% of the assessments in the first semester. He displayed unhelpful classroom behaviour in French but improved in the second semester. He showed pleasing attitude and effort in information technology. He was energetic but had a poor attitude in media. He showed a more positive attitude to fine arts. His teacher in home economics noted that he had produced good quality products but that his lack of attention had adversely affected his grade.[35]
[35] TB 356 ‑ TB 368.
In Year 10 his effort in English was unsatisfactory. He had difficulty in applying many of the fundamental concepts. He lacked motivation in health and physical education and needed to reassess how to gain from the learning environment in media (photography). He appeared to be moving out of the 'angry young man' phase in information technology, but his early efforts were so poor that his grade had been affected. He found it difficult to focus on the task in art and design and let himself down in physical education with a lack of discipline and commitment.
He was motivated by some aspects of mathematics but needed constant encouragement to stay on a task. Towards the end of the year, he was commended for taking a positive approach to studies and was described as a diligent worker. He was considered to be a well‑mannered student in design and technology but who needed to apply himself better in some aspects.
According to an Internal School Advice (ISA) on 2 June 2011, he was given rubbish duties for playing games in class. He did not turn up to detention and then forged a signature.[36] In another ISA, dated 8 November 2011, Ms Davis recorded that Mr Sidhoum was removed from a society and environment class due to his constant disruption of the class. He was placed in a withdrawal room with another teacher and continued to misbehave. He was given a detention.[37]
Referral to Dr De Jong
[36] TB 32.
[37] TB 36.
On 7 November 2011, Mr Sidhoum's general practitioner, Dr Chang, referred Mr Sidhoum to a child psychiatrist, Dr De Jong, noting a history of poor grades, difficulty with homework and classroom (behaviour). Dr Cheng noted that his parents and a teacher (the head of Year 10, Mr Chris Hill), had raised the possibility of ADD.[38]
[38] TB 33.
In an undated letter Mr Hill advised Dr De Jong that a number of Mr Sidhoum's teachers felt he had made positive efforts, whereas earlier in the year he was generally uncooperative and disinterested. Despite his positive attitude and work ethic, his teachers felt he struggled to do the work, lacked the necessary concentration, was easily distracted and did not work to a plan or to deadlines.[39]
[39] TB 415.
Dr De Jong saw Mr Sidhoum on 2, 6 and 16 December 2011.[40] He decided to trial Mr Sidhoum on Ritalin, a medical treatment for ADHD, the primary condition he was treating Mr Sidhoum for.[41]
Year 11 reports
[40] See report at TB 150 - TB 151 and notes at TB 405.
[41] TB 408.
In Year 11 Mr Sidhoum made a successful beginning to his studies in English. His positive attitude, work ethic and general maturity contributed to an A grade. His application and drive suffered a setback in the second semester with erratic attendance and a lack of continuity. Overall, his teacher was very pleased with the improvement he made in that subject that year.
His mathematics teacher noted:[42]
Heykel has worked hard to consistently achieve excellent results. He's currently ranked third in this course and will continue to impress throughout the year with the appropriate application. Heykel is to be congratulated on his success and it's always a pleasure to teach him.
[42] TB 378.
His careers access (industrial arts) teacher observed:
Heykel has independently gone about producing sound practical work this semester. He's displayed a mature attitude to the workshop environment and he's progressing satisfactorily towards achieving a Certificate I in Furnishing.[43]
[43] TB 379.
Mr Sidhoum was regarded as a polite student in integrated science with a good sense of humour. By the end of the year, he was described as a 'lively character', but his grade did not reflect his true ability. There was a reference to his inability to focus on tasks. His results in mathematics in the first semester were excellent but his results deteriorated in the second semester. He was always pleasant and polite and a pleasure to teach.
His workplace learning teacher was impressed with his attitude and work ethic. There was a reference to him engaging in his first work placement at UWA facilities maintenance. He was commended for the work he did on the Defence Force Scholarship application. He displayed a mature attitude to the workshop in industrial arts and independently produced sound practical work. His supervisors made very positive comments about his work ethic but his log book records were poor. In industrial arts it was said he needed to avoid students who waste his class time.[44]
[44] TB 369 - TB 384.
Viewed as a whole, Mr Sidhoum's Year 11 second semester report suggests a deterioration in his application and attendance. In March 2012 he was granted special consideration, namely extra working time, for assessments in all subjects.[45] On 30 April 2012 he failed to bring his laptop to his English class.[46] On 27 August 2012 a Mr Ranson, the good standing coordinator, advised Mr Sidhoum's parents that he had accumulated 14 unexplained half-day absences and was at jeopardy of losing good standing.[47]
[45] TB 40.
[46] TB 41.
[47] TB 59.
The defendant notes a total of only four Behaviour Incident Notifications in the whole of 2011 - 2012.
Year 12
In February 2013 Mr Sidhoum was granted special consideration, namely extra working time, for assessments in all subjects for that year.[48]
[48] TB 60.
Ms Pendlebury gave evidence that at the beginning of each school year either the study skills teacher and/or a psychologist would directly advise teachers of a diagnosis, such as ADHD, that had resulted in extra working and non-working time.[49]
[49] ts 297 - ts 298.
I am inferentially satisfied that as of 26 February 2013 Ms Davis had been made aware of this extra non-working time and that some explanation, at least, for its existence would have been conveyed to her. In addition, teachers had access to information about students' learning difficulties via a program called Compass.[50] I am satisfied that prior to the school year commencing, Ms Davis would have consulted Compass to ascertain whether any members of her class had been diagnosed with conditions that might affect their ability to learn.
[50] ts 299.
Further, Ms Davis was Mr Sidhoum's mentor teacher with an obligation to provide career counselling to him. I am satisfied that presented a further opportunity for Ms Davis to be acquainted with any particular difficulties that Mr Sidhoum experienced at that time.
Mr Sidhoum obtained a certificate dated 25 February 2013, the day before the incident, which showed that he followed occupational health and safety procedures, communicated in the workplace and worked in a team.[51]
Treatment of ADHD post school
[51] TB 61.
I note that on 29 January 2015, almost two years after the incident, a Dr Chen referred Mr Sidhoum to another psychiatrist, Dr Kerry Monick for opinion and management of ADD. Dr Monick initially assessed Mr Sidhoum in February 2015. He saw him again on 10 July and 8 October 2015. On each occasion he considered that because the improvement was significant, Mr Sidhoum should continue his medication. He recorded a number of symptoms including poor concentration, difficulty sustaining attention, poor follow through on tasks, easy distractibility, fidgetiness, restlessness and difficulty in quietly engaging in leisure activities.[52] A DSM‑IV symptom checklist for ADHD taken from Dr Monick's file shows that that Mr Sidhoum's recorded behaviour corresponds with characteristics or features of people with ADHD.[53]
Assessment by senior teachers
[52] TB 424 - TB 431.
[53] TB 416 - TB 417.
I accept that Mr Morgan is an experienced school principal. When asked to provide his memory of Mr Sidhoum as a student, he said that Mr Sidhoum,
had a good nature, but he was an adventurous child.
The use of the conjunction 'but' suggests a qualification to the positive assessment that Mr Sidhoum had a good nature. Mr Morgan clarified that Mr Sidhoum was identified (as) 'a student educational risk', he was at [sic] the attention of the school and that a number of support staff were directly engaged with Mr Sidhoum to support him throughout his schooling.[54] The purpose of identifying students at educational risk is to provide pathways to assist them achieve academic success and overcome challenges. The intention in Mr Sidhoum's supported pathway was to achieve vocational success through the careers access program (CAP).[55]
[54] ts 182.
[55] ts 183.
Counsel for the plaintiff also explored the 'adventurous' characterisation. Mr Morgan explained that Mr Sidhoum did not 'comply to all things'. He did not engage in all aspects of schooling but that was not completely rare. 'Adventurous' was a polite way to saying that he was not going through the standard ATAR pathway. He liked to be more hands on, more engaged in activities. He was not as conforming as you may expect (in) a standard child.[56]
[56] ts 239.
So, 'adventurous' as applied to Mr Sidhoum seems to mean non‑conformist, at least to an extent.
Mr Morgan's evidence in respect of a group comprising of Mr Sidhoum, Mr Stewart, Mr Beer and a Mr Kyle Yeoman was that all of those boys were at times disengaged. Hence they were on the Career Access Program. They were not prone (my emphasis) to misbehaving in class together, but they had misbehaved in classes.[57] Mr Morgan was not aware of Mr Beer as someone who was prone to misbehaving in class.[58] He accepted that he knew at the time that Mr Beer could not follow direct instructions at all times. He knew Mr Stewart to a far lesser degree and did not know about Kyle Yeoman at all.[59] This group as a whole were 'far from notoriously naughty', as had been suggested to him.[60]
[57] ts 239.
[58] ts 241.
[59] ts 242.
[60] ts 238.
Ms Pendlebury, as the associate principal, had no recall of Mr Sidhoum nor of the other students being 'escalated' to her during Year 11 (nor the first few weeks of Year 12) for repeated or problematic bad behaviours.[61]
Criticisms of Mr Sidhoum's evidence
[61] ts 291.
The defendant attacked Mr Sidhoum's credibility and reliability, alleging that he recreated and re-cast the relevant events to suit his narrative in support of his claim. It accepted that Mr Sidhoum was significantly injured in the incident itself but queried his 'near perfect' recall of the surrounding circumstances. Mr Sidhoum said in evidence that he had replayed the events, the sequences of what happened that day, and it is more and more clear, the more he thinks about it. Somewhat unrealistically, in my view, he declined to accept that there could be some things that he is mistaken about.[62]
[62] ts 103.
The defendant also contends that Mr Sidhoum was prone to withhold matters that are not helpful to him, for the purpose of obtaining a benefit for himself, or to avoid an adverse outcome.
This begins with Mr Sidhoum's written application for an apprenticeship with Electrical Group Training on 27 October 2014.[63] Mr Sidhoum answered (incorrectly) 'no' to the question, 'have you any disability, injury or physical ailment that may prevent or influence your ability to undertake these types of duties?' He testified that was because he wanted the job.[64]
[63] TB 187 - TB 194.
[64] ts 109.
Mr Sidhoum also answered 'no' to the question, 'do you have any ongoing physical or psychological condition that requires regular visits to the doctor?' He agreed that in some sense he was willing to give any answer necessary to secure a job.[65]
[65] ts 110.
Mr Sidhoum made a workers' compensation assessment in September 2017. He had lifted a floor tile from the floor when he felt pain to left midback. Mr Sidhoum advised an assessing practitioner on 26 September 2017 that his past medical history consisted of ACL and meniscus left knee, left eye injury and ADHD.[66] The practitioner recorded that there were no other back injuries.
[66] TB 230.
Mr Sidhoum had, however, had a consultation with his GP, Dr Chen, on 16 August 2017 and Dr Chen had recorded, 'sore mid-back a few days. No trauma'. Dr Chen provided a medical certificate for the day. He prescribed analgesia and rest.[67]
[67] TB 623.
Mr Sidhoum testified that the assessing practitioner in September 2017 was a specialist in compensation injury, so he understood that the question was more, 'Have you ever had a compensation regarding your back injury?' To which his answer would have been 'no.'
I am quite satisfied that the assessing practitioner would simply have asked Mr Sidhoum for his medical history. The attendance at Dr Chen's practice was only five weeks earlier and did relate to a complaint about muscular pain in his back. I accept that Mr Sidhoum's attendance that day was not a particularly significant consultation. However, Dr Chen noted on 22 September 2017 that Mr Sidhoum had complained of recurrent back pain for over a year. Mr Sidhoum did not distinctly dispute that he had dishonestly omitted a relevant detail from his medical history.[68]
[68] ts 118.
Mr Sidhoum was also asked about a consultation in November 2020 with a Dr Ng after he sprained his back at work. Mr Sidhoum could not remember asking her to ensure that the medical certificate that she wrote for him not say that he was unfit for work.[69] Dr Ng recorded this request.[70] I am satisfied that, for whatever reason, Mr Sidhoum made this request. I find it unlikely that he would not recall asking his doctor not to issue a medical certificate saying he was unfit for work.
[69] ts 121.
[70] Exhibit 6.
Mr Sidhoum worked for TES Electrical in the first part of 2021. He was asked about answers he gave on a TES pre-employment medical form on 5 February 2021.[71] He agreed that he clearly read the questions asked on the form and that he had made a decision at the time about his answers. Despite that, he untruthfully stated that he had never tested positive in any workplace drug and alcohol screening test.[72] He was asked if he answered 'no' because he perceived that saying 'yes' would adversely affect his prospects of getting this job with TES and answered, 'maybe, yeah'.[73] He also advised that he was not taking any medication although he had, in fact, been prescribed Valium.
[71] TB 280.
[72] ts 127.
[73] ts 128.
The defendant also relies upon the manner in which Mr Sidhoum gave evidence, submitting that he was internally inconsistent in some of his answers and evasive and unresponsive in others. I am not persuaded by the arguments advanced at pars 95 ‑ 98 of the defendant's written closing submissions.
I accept that there are instances where Mr Sidhoum deliberately withheld information or answered a question untruthfully because he perceived a potential benefit. Further, I am unconvinced that his memory of the surrounding circumstances is as clear as he has indicated. There is a need, therefore, for some caution in assessing Mr Sidhoum's evidence, but he is not a witness that I would put into the category of someone whose testimony could not be accepted unless there was some form of corroboration. I note, for example that Mr Sidhoum made some appropriate concessions in cross-examination for example as noted at [329].
Mr Sidhoum's evidence
In evidence, Mr Sidhoum testified that in his first three years at the school he was a 'class clown'. He was very talkative, always on his feet trying to do something entertaining in order to pass time. He was prescribed Ritalin which allowed him to concentrate, at least in certain classes.[74] But in Year 11 he was still very much a class clown. He would stand up inappropriately. It was not unusual for him to be sent out of the classroom. He would just walk in the hallways to just try and keep himself busy. He would often leave school before the last period and sometimes would deliberately miss the first period.[75]
[74] ts 39.
[75] ts 40.
When I compare that evidence to the more objective evidence consisting of the school reports prior to the incident, I conclude that whilst Mr Sidhoum's behaviour on a number of occasions left a lot to be desired, his behaviour in year 11 was not as bad as he now portrays.
Mr Sidhoum testified that he and his friends, Mr Beer, Mr Stewart, Kyle Yeoman 'would feed off each other's energy'. They would try to outdo each other and see who could be, 'the funniest person in the room'.[76] I accept that was probably the case.
[76] ts 41.
Mr Sidhoum agreed that by early 2012 using Ritalin had improved his concentration and therefore his results in a number of subjects. In re‑examination, Mr Sidhoum stated that he began to lack in enthusiasm as Year 11 went on. He did not take his medication as much as he did in the first half.[77] I accept that is consistent with the school reports for semester 2 as opposed to semester 1. He explained his reluctance to take Ritalin because it suppressed his appetite and affected his weight.[78] Mr Sidhoum stated that Ritalin helped him concentrate. When he took Ritalin he was able to stay focused on tasks that he enjoyed a lot better and to finish his work. But it had no impact on tasks he did not enjoy.
[77] ts 131.
[78] ts 39 - ts 40.
The defendant submits that from 2012 onwards, Mr Sidhoum's ADHD was well managed through his use of Ritalin. Dr De Jong recorded a positive response to a formal trial of Ritalin in December 2011.[79] Mr Sidhoum told a consultant ophthalmologist Dr Phillip McGeorge that he was taking medication on a regular basis for his ADHD at the time of the incident.[80]
[79] TB 150 - TB 151.
[80] Exhibit 2, book of medical reports pages 16 - 28.
Mr Sidhoum referred to the negative effects of the medication. However, other than loss of appetite, it is not reflected in the notes of any relevant treatment practitioner that the ADHD medication was only 'partially helpful' or that Mr Sidhoum had difficulty taking it.
The notes from Mr Sidhoum's treating practitioners in fact indicate that he had a good response to the medication. As I have noted, the ADHD progress report of 8 October 2015 indicated that his improvement with medication was significant. Specific arrangements were made for Mr Sidhoum to continue the medications (60 mg/day) while on an overseas holiday.[81] Dr De Jong's report noted he became more irritable when it wore off, with no negative effect on sleep but appetite had gone down; overall had a good response to the medication.[82]
Conclusions on this point
[81] TB 411.
[82] TB 413 - TB 414.
I do not accept the defendant's characterisation that as of 26 February 2013 Mr Sidhoum was a 'normal, spirited, maturing young man'. Unfortunately, the evidence from the school reports is to the contrary.
I am satisfied, however, that Mr Sidhoum was capable of controlling his behaviours and impulses, of following directions and staying on task, if he chose to do so. Clearly his behaviour and performance deteriorated when he did not comply with his medication. I accept that the fact that he was regularly entrusted to attend TAFE and/or worksites as a member of the school is inconsistent with the proposition that the school was on notice about his alleged behaviours and inability to control himself.
I do not accept Mr Sidhoum's evidence that in the early weeks of Year 12 his group were 'just relentless' in Business. Mr Sidhoum said that they were 'non-stop' despite multiple warnings. They engaged in 'non-stop just howling'. They would just scream a lot of the time, make noises and find ways to entertain themselves. They felt like they could just get away with being idiots. They would wheel around the room in their swivel chairs bumping into each other. They would do a 'little figure of eight' around the room seeing who could do it the fastest.[83]
[83] ts 43.
I find it inconceivable that an experienced teacher would allow Year 12 students to behave in a way that would be unacceptable by 5‑year‑olds. I accept the defendant's submission that it is implausible that the prior behaviour was on the scale Mr Sidhoum describes. It could not have been 'relentless', given that he had never come to the attention of the associate principal. At its highest this group misbehaved at times, including in classes, to an extent that the principal was aware of some of them as individuals.
I am satisfied that the school generally, and Ms Davis specifically, were on notice that Mr Sidhoum was prone to misbehave to an extent that would be greater than might be expected from a typical Year 12 student. But I am not satisfied that there was a heightened need for particular concern about the potential for him to misbehave, either individually or as part of the group. I am satisfied that some of his group of friends had come to the attention of senior teachers within the school, but only in respect of their own individual misbehaviour, as opposed to a collective problem.
In terms, there is no basis for a finding that there was a special need for caution in controlling this particular class as of 26 February 2013.
Even if Mr Sidhoum was experiencing difficulties with his medication, there is no basis to conclude that the school was aware of that.
The behaviour, prior to the incident
This bears upon the assessment of Ms Davis' decision to leave the boys unsupervised in the classroom when she went out into the corridor and also on the probability, or otherwise, as to whether the class had 'settled' before she did so.
Mr Sidhoum testified that he and his friends regarded this class as more of a 'filler'. They did not take it seriously because they knew they needed to complete two years to get a qualification and only one year was available.[84] That evidence is consistent with his school reports that show that he would, to an extent, apply himself in some subjects but not others. I consider it likely that on the day Mr Sidhoum left his books in his bag and did not engage in the class.
[84] ts 42.
I do not accept that Mr Sidhoum and his friends were shouting and 'howling like wolves' at the top of their lungs. I accept that they may well have been calling each other racist names across the classroom. I do not accept that Mr Sidhoum started crawling around the classroom on all fours. I accept that it is possible that Mr Beer engaged in spitting with his mouth and then sucking the spit back up before it hit the floor.
I do not accept that Ms Davis gave Mr Sidhoum a detention for screaming a racist insult and crawling around the classroom as he contended.[85] I accept that she issued two yard duties to him for his poor behaviour generally. The plaintiff does not dispute the admissibility of her written incident report. In that report Ms Davis indicated that she separated all the students at the outset, not because of their prior behaviour, but because she wanted them to work independently and not be influenced by others.
[85] ts 49.
I see no reason not to accept Ms Davis' contemporaneous incident report[86] as an adequate and accurate summary of the class' conduct prior to the incident. That shows that the majority of the boys in the class were disrespectful to each other, loud, argumentative and thoroughly distracted. They refused to participate in the class. They would not sit properly on their chairs.
[86] TB 70 - no time of completion stated.
It is clear that Mr Sidhoum, along with Mr Beer and quite possibly Mr Stewart started throwing computer stands at each other. Mr Sidhoum testified that he was standing so he could throw a bit harder, occasionally hitting Mr Beer in his back or leg. Mr Beer would try to hit Mr Sidhoum who was hiding behind his chair. Mr Sidhoum claimed that Ms Davis had her back to the class and did not know what was going on for two or three minutes. I reject that as inherently unlikely. I accept that when Ms Davis became aware of this behaviour, which in my view would have been almost immediately, she made them gather all the stands around their desks, put them on her table and told them to sit on the floor.[87]
[87] ts 50 - ts 52.
In her incident report Ms Davis indicated that she told Mr Sidhoum and Mr Beer to sit on the floor because of their behaviour on the swivel chairs. She told Mr Stewart to sit outside because of his angry response to her instructions and the disrespect that he showed. Ms Davis also noted that several students were playing with the plastic computer stands, in particular Mr Sidhoum, Mr Beer and Mr Stewart. She gathered up the stands and placed them on her desk.
Conclusion on this point
There is no doubt that at least Mr Sidhoum and at least Mr Beer were throwing computer stands at each other. I am satisfied that they were doing so in a forceful way, and that in the time that was available between Ms Davis observing this activity and confiscating the stands, they had the opportunity to throw a number of stands at each other. I cannot be satisfied that Mr Stewart joined in this particular behaviour although his conduct in other respects was plainly disruptive.
Admissibility of contentious documents in particular the Review Document
The plaintiff submits that the Review Document is the sole piece of evidence relied upon by the defendant to contradict Mr Sidhoum's evidence that the class had not settled when Ms Davis left the classroom. The plaintiff also submits that it is inadmissible.
The defendant contends that the Review Document is a 'Business Record' for the purpose of the definition in s 79B of the Evidence Act 1906 (WA) such that it is admissible under s 79C of the Evidence Act. The plaintiff submits that it is not a business record, but in the alternative should be excluded in the exercise of my discretion under s 79C(6) of the Evidence Act.
The plaintiff submits that the Review Document should not be regarded as a record made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned.[88] It is not a document in the nature or character of records prepared or used in the ordinary course of business. It was not made or prepared as part of a 'well-worn routine' or as part of the ordinary course of business. It is highly contentious, goes to a central issue and was prepared/contributed to by people who had an interest in reflecting a particular state of affairs.
[88] As described in Allbrighton v Royal Prince Albert Hospital [1980] 2 NSWLR 542.
The defendant counters that these objections do not go to whether the document is admissible as a business record or indeed whether it should be excluded as a matter of discretion but goes to the question of weight under s 79D.
Although the Review Document is undated it was probably finalised on 1 March 2013. It is necessary to consider a document that preceded it, an Acknowledgment of Critical Incident Form (ACIF).
Acknowledgment of Critical Incident Form - ACIF
At about 2.25 pm on 26 February 2013, Mr Morgan sent an email reporting the incident and attaching the ACIF.[89] In evidence, Mr Morgan explained that the ACIF was a document entered and stored centrally and electronically, within the Department of Education.[90] The incident report within the ACIF refers to only Mr Sidhoum and Mr Beer throwing the stands, stating that each had dismantled a stand. Ms Davis is reported as dealing with Mr Stewart for reasons that are not specified. It is noted that Ms Davis had completed an accident report (which I have referred to as an incident report) and that the year coordinator, Robyn Kane, had interviewed four students.[91]
[89] TB 62 - TB 64.
[90] ts 187 - ts 188.
[91] TB 68.
It seems that the ACIF was updated on 1 March 2013. Mr Morgan did not recall why he submitted the update,[92] but thought that it may be because Ms Pendlebury had conducted a review that day and prepared the corresponding document arising from that review and meeting.[93]
The Review Document
[92] ts 211.
[93] ts 214.
The Review Document is undated. It consists of three pages. The first page consists of two sections, each of which refers to the incident. The first version, occupying two thirds of the page, is the more detailed. Ms Pendlebury gave evidence that each section had a different purpose.
The first section/tranche reveals that because of poor behaviour the previous week the students were required to take their seats in accordance with a separated seating plan. Members of the class began to misbehave. Three of the students, Mr Sidhoum, Mr Beer and Mr Stewart, rolled on their chairs and grabbed the computer tower stands. Ms Davis required them to sit on the floor. It is not particularly clear whether that was so they could not use their chairs or not throw the stands or both. At 12.10 pm, some 40 minutes into the class, the boys began to throw the stands. They had dismantled them. Ms Davis collected them and placed them on her desk. Mr Stewart behaved in a rude and disrespectful function and refused to hand over the plastic stand. Implicitly, Ms Davis told him to sit outside.
The second section sets out that all the students were sat in a particular order, with each student separated from the other in light of the nature of the class. The students' behaviour began to deteriorate. Ms Davis reminded them of the school rules and tried to appeal to their better nature and their sense of responsibility. When that did not work, some of the boys were given yard duty as a penalty. She then further isolated the students who were swinging around on their chairs by making them sit on the floor. She removed 'the objects that were being used to cause disruption'. The plaintiff submits that the terminology used at this point is significant, in that it avoids any express reference to the broken computer stands with their sharp ends. Ms Davis then sent out a student who was continuing to disrupt the class.
It is not necessary to set out pages 2 and 3. Page 2 consists of a further eight recommendations. There is then a section headed, 'immediate follow-up after the incident.' That noted that Mr Beer ran away from school after the incident and details the events of the following day:
•a meeting involving Mr Beer;
•Ms Kane the Year 12 coordinator speaking to the class as a whole;
•Ms Davis speaking to the class later that day; and
•Mr Morgan speaking to Mr Stewart.
There is then a final section entitled, 'duty of care to students and emergency plan procedures' which indicates the steps taken once Ms Davis saw that Mr Sidhoum had blood coming from his eye. There are then six dot points on page 3 indicating the contact with Mr Sidhoum over the period 26 - 28 February 2013.
Effect of s 79C Evidence Act in permitting hearsay if a document is a Business Record
Section 79C relevantly provides:
79C Documentary evidence, admissibility of
…
(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b)the court is satisfied that the business record is a genuine business record.
(2b)Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3)This section makes a statement admissible notwithstanding -
(a)the rules against hearsay or
(b)the rules against secondary evidence of the contents of a document.
As Beech J noted in McKay v Commissioner of Main Roads(No 2):[94]
In considering this question of the proper construction of the definition of business record, it is, I think, relevant to take account of the statutory consequence under s79C(2a), of a document being a business record. The document will be admissible as evidence of the truth of its contents and that will be so notwithstanding the document is second hand hearsay.
Purpose of s 79C Evidence Act
[94] McKay v Commissioner of Main Roads(No 2) [2010] WASC 153 [33].
In Cavill v The State of Western Australia[95] the Court of Appeal referred to J D Heydon in Cross on Evidence (7th Aust ed) [35315]:
If strict regard had to be paid to the rules as to prior consistent or inconsistent statements of witnesses there could be extreme problems in the orderly calling of witnesses. Statements tendered as business records can be admitted even though they are consistent or inconsistent with the sworn evidence of their makers. A party can tender a business record even though it is consistent with his witness's sworn evidence; he can tender his own witness' prior inconsistent statements as business records even though the witness is not hostile; and prior consistent and inconsistent statements in business records can be tendered not merely as going to credit, but as evidence of the matters of fact or opinion asserted.
[95] Cavill v The State of Western Australia [2008] WASCA 108 [99].
In the current, 13th edition, at [35195] the learned authors observe:
The business records legislation is remedial legislation intended to remove the difficulty or, in some instances, impossibility of proven certain business facts by admitting a material which in common experience is likely to be accurate and should be construed liberally and not pedantically.
This sentence was quoted in Cavill at [208] and in Donohue v Director of Public Prosecutions(WA).[96]
[96] Donohue v Director of Public Prosecutions(WA) (2011) 215 A Crim R 1 [126].
In Cavill, Miller JA noted at [209] that in Cross on Evidence, the author cites Albrighton v Royal Prince Alfred Hospital[97] where Hope JA made reference to the importance of proof of hospital records. Miller JA then noted at [210]:
Significantly, Hope JA in Albrighton referred to the importance of hospital records as a more reliable source of truth and memory and the purpose of the equivalent of s 79C of the Evidence Act 1906 as being,
'to bring into the courtroom a method of establishing the truth which is relied upon by our society outside the courtroom - to bring into the rules of evidence a reality which they otherwise lacked'.
[97] Albrighton v Royal Prince Alfred Hospital (548) ‑ (549).
In the current issue of Cross on Evidence, the learned authors acknowledged at [35195] the force of some of those points but suggested that they exaggerate the reliability of business records. The authors noted that persons who have had access to their own records made in hospitals will be familiar with their propensity to error. Numerous mistakes are made in the relation by patient, the hearing and recording by medical professionals and the transcription of what has been recorded into other records.
Definition of Business Records
Section 79B of the Evidence Act defines a business record as meaning:
a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business.
Here, the Review Document is said to be an 'other document.'
Business is widely defined in s 79B to mean:
any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government.
The defendant submits that the Review Document is a business record because Mr Morgan, in his capacity as the principal, was following a mandated and established procedure in which he was required to contemporaneously report to the department the occurrence of a serious, critical incident at the school. That included a detailed description of what was understood to have occurred. Mr Morgan testified that as the principal his role was to undertake a review of what happened and to ascertain how and why the incident occurred. He was required to submit the ACIF that I have referred to, to ensure that he reviewed the relevant information and to mitigate or minimise any future problems. I accept that to be the case. This was not just good practice, but a requirement of the Education Department.[98]
[98] ts 186 - ts 187.
Similarly, Ms Pendlebury, in her capacity as associate principal, was following a mandated and established procedure.
Given that the defendant owed students a duty of care on the school premises, the mandated investigation of a critical incident during care of students fell within the ordinary business of the defendant. Contrary to the plaintiff's submissions, I am satisfied that there was a routine procedure for production of a document such as the Review Document.
Plainly what happened in the classroom was a critical incident because a student had been badly injured. As might be expected, senior members of staff had to review procedures and determine what was needed after such an incident.[99] It was also necessary to work out how to manage the class afterward to ensure the students' education was not disrupted. And also, to ensure that Ms Davis had followed procedures throughout the incident.[100]
[99] ts 293.
[100] ts 294 - ts 295.
Ms Pendlebury was tasked with meeting with Ms Davis and her line manager Ms Pratt, to review what happened. It was her job as associate principal to prepare the Review Document because the incident involved an injury to a Year 12 student.[101]
[101] ts 294.
Ms Pendlebury testified that the top tranche was her own words, written to ensure she was clear about what happened.[102] Ms Pendlebury could not recollect whether she had rewritten a summary of the incident from Ms Davis' original statement or whether she had rewritten the summary based upon information conveyed to her by Ms Davis at a meeting. I am satisfied that it must be the latter, given the fact that no reference to 10 minutes appeared in the original statement, but it does appear in this first section of the Review Document.
[102] ts 294.
Ms Pendlebury also testified that the second tranche reflected the meeting when, along with Ms Pratt and Ms Davis, she was reviewing the 'behaviour management in schools' steps to ensure they were followed.[103] They then produced recommendations to ensure that such an event never occurred again. After preparing the document, it was placed on Mr Sidhoum's file. Ms Pendlebury gave a copy to Mr Morgan and assumed that he probably would have sent it to central office.[104]
[103] ts 294 - ts 295.
[104] ts 295.
The suggested unknown origin of the contentious section of the document does not cause me to conclude, by itself or in conjunction with other evidence, that the Review Document is not a Business Record. In any event, I am satisfied that the key details were provided by Ms Davis.
I consider the way in which the Review Document was dealt with after it was produced to be irrelevant. In particular, I find the way the Review Document was provided to the plaintiff's solicitors does not bear on whether it was, when Ms Pendlebury created it, a business record.
Mr Morgan did not accept in cross-examination that a reader might only have access to either the top or bottom tranches of the Review Document so as not to appreciate the distinctions in the two versions. Mr Morgan considered the document to have been archived in its entirety as the one document.[105] There is no basis to conclude that the document was ever provided to a third party in a deliberately excised fashion or, that this was ever the intention.
[105] ts 222 - ts 223.
I accept that Ms Davis and Ms Pendlebury contributed to the Review Document and that each had an interest in its content. The document itself sets out a series of 'recommendations', for example that Ms Davis change the way in which she delivered lessons and the way in which she dealt with poorly behaved students.
The last recommendation reads:
The teacher cannot leave that class and if she needs to speak with a student outside, then she keeps the door open and faces the class.
I accept that, given the recommendations, there must have been at least some concerns expressed during the meeting about Ms Davis' conduct in the care of this class.
That does not demand a conclusion that their contributions are inevitably partisan but it means that it is a possibility. Ms Pendlebury could be (and was) cross-examined about that, but Ms Davis could not be. Whilst this bears on my consideration of whether the Review Document is a business record, s 79F(3) specifically provides:
In estimating the weight, if any, to be attached to evidence rendered admissible by this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the evidence, including whether or not any person concerned with the making or keeping of the relevant record had any incentive to omit recording the happening of the event in question
So s 79F(3) expressly caters, it seems to me, for the contingency that a document is admissible as a business record but is given little or no weight because an inference can be drawn that the maker had an incentive to omit recording an event.
I am not assisted by the fact that there is no documentation (or recollection on the part of Ms Pendlebury) suggesting that Ms Davis was asked whether she was sure that the class did settle for 10 minutes, in light of possible inconsistencies with accounts of up to four other students in their interviews and in the meeting with Mr Beer on 27 February 2013. The fact that Ms Davis might have been pressed about that during the meeting does not mean that a written record of what she said, along with a number of recommendations, is not a business record.
I considered Ms Pendlebury to be a straightforward and honest witness. She did not exaggerate in any way in her evidence. Her answers were responsive and appropriate. She was not in any way unduly defensive. Her responses were clear. She spoke in plain English.
Whilst there is less detail in the second version, I do not consider that the two sections are diametrically opposed. They are broadly consistent with each other. In one sense the first version is more favourable to Ms Davis because a period of 10 minutes is specified, as opposed to merely stating that the class had settled and was quiet. On the other hand the first version refers to the particular object that were being thrown, namely computer tower stands, as opposed to objects that would been 'used to cause disruption'.
I accept Ms Pendlebury's evidence that the second tranche was not intended to be an alternative, sanitised description of the incident, rather it reflected the steps taken by Ms Davis. I accept that Ms Pendlebury annotated the document because she wanted to make sure that everything she had written was necessary and not superfluous.[106] The decision to refer to the incident in two different ways and to ask Mr Morgan,[107] which version should be retained, was a decision made by Ms Pendlebury. She was able to be cross-examined and, of course, she was.
[106] ts 321.
[107] ts 296 and ts 313.
The fact that Ms Pendlebury annotated the two sections with questions, does not mean that the document was a draft from her perspective. Rather, it means that the potential existed for Mr Morgan to decide that one of the two sections contained in this document would be ultimately conveyed to the department, rather than both. To be a business record the document need not be part of a continuous record, so that, in one case, one of a number of loose-leaf ledger cards in a box has been held to be part of a record.[108]
[108] Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, 649.
Mr Morgan's involvement with this document occurred after its creation. I do not find that any act or omission of Mr Morgan causes me to re-assess my acceptance of Ms Pendlebury's evidence about the purpose of this document and its creation. I consider the way in which the Review Document was dealt with after Ms Pendlebury created it to be irrelevant. By the time it was provided to Mr Morgan it was a business record.
Having considered the evidence of Mr Morgan and Ms Pendlebury, I am quite satisfied that the Review Document was prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. It is a business record.
Exclusion as discretion
The plaintiff submits, in the alternative, that I should exercise my discretion to reject the document under s 79C(6) of the Evidence Act which relevantly provides as follows:
For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a)may necessitate undue consumption of time; or
(b)may create undue prejudice or confuse the issues.
The principles relevant to the exercise of discretion under s 79C(6) are well settled. I repeat, with citations omitted, the principles identified by Beech J in McKay at [73] - [76].
The starting point is that it is a discretion to reject. Thus, once the requirements of the section are otherwise satisfied, the prima facie position is that the statement is to be admitted. The discretion to reject only arises if the court forms the opinion that the probative value of the statement is outweighed by, relevantly, the consideration that its admission may necessitate undue consumption of time. I am satisfied that is not a consideration here.
Secondly that admission may create undue prejudice. In considering whether any undue prejudice exists, regard must be had to the interests of both parties to the proceedings. Relevant 'undue prejudice' may be suffered by a party who is unable to cross‑examine a witness.
The prejudice suffered by the party who is seeking to tender the document, if that document is not admitted, must also be considered. If the Review Document is not admitted the defendant, in the absence of other witnesses, loses the opportunity to positively assert that the class did settle for a significant period before Ms Davis went outside. The possibility that the class did settle would remain, even without the Review Document, unless I accept Mr Sidhoum's evidence to the contrary. It would have been open to the defendant to attempt, at least, to call evidence from some of the other students present that day such as, but not limited to, Mr Beer and Mr Stewart. It was also open to the defendant to cross-examine Mr Sidhoum more extensively on this particular point.
In McKay Beech J identified at [78][109] some of the (non‑exhaustive) factors that apply to the exercise of discretion:
•Inability by the other party to cross-examine a witness: [75], citing Coffman v The Queen;[110]
•consideration of the extent to which the statement and document is ambiguous or requires clarification or explanation: [78(a)];
•whether the statement was prepared by the tendering party's lawyers as a witness statement or was intended for use in an adversarial context: [78(b)];
•whether the statement seeks to provide evidence of a central issue in the case: [78(c)]; and
•whether the other party is not in a realistic position to controvert the proposed evidence by firsthand evidence of their own: [78(d)].
[109] Including by reference to Shmee Pty Ltd v Bresam Investments Pty Ltd [2008] VSC 291.
[110] Coffman v The Queen [2010] WASCA 54 [30].
I will consider each of these in turn. In Shmee Pty Ltd v Bresam Investments Pty Ltd[111] Vickery J found at [21] that the impugned statement seeks to provide evidence of a central issue in the case and that was a factor that counted against its admission in the exercise of his discretion (as was the case in McKay see [117]). It is clear, however, that there were other factors that were more persuasive in exercising the discretion to exclude the statement in Shmee Pty Ltd. I accept that the Review Document does provide evidence of a central issue in this case, namely the extent to which and the duration that the class settled before Ms Davis went out into the corridor. That is not determinative, but it is factor that counts against admission.
[111] Shmee Pty Ltd.
Unlike in Shmee Pty Ltd I am not satisfied that the statement was prepared by the tendering party's lawyers as a witness statement or was intended for use in an adversarial context. I do not consider that any litigation was pending or anticipated at the relevant time. Indeed the plaintiff did not issue a writ until February 2016, having sought pre‑action discovery in April 2015. Whilst it was clearly a serious injury that required hospital treatment and Mr Sidhoum's absence from school for some time, the full extent of the consequences to Mr Sidhoum were not, I find, known to the school at the relevant time.
Further, I accept that the plaintiff as the other party is in a realistic position to controvert the proposed evidence in the Review Document by firsthand evidence of its own and indeed did so.
Finally, whilst key parts of the Review Document are contentious and would require resolution in the context of other evidence that is accepted, I do not consider that any statement in the document is ambiguous or requires clarification or explanation.
The key question is whether the plaintiff's inability to cross‑examine Ms Davis about a central issue in this case (the 10 minute interval) will cause undue prejudice.
That requires consideration of the probable course of cross‑examination if Ms Davis could have been called as a witness, and the prospects of that cross‑examination succeeding.
The defendant accepts that the weight afforded to the deceased Ms Davis' statement in the Review Document, if admitted, will decrease due to the obvious absence of cross-examination, see McKay [119]. The defendant places some reliance upon the fact that counsel for the plaintiff was able to cross‑examine Ms Pendlebury. Plainly that does not overcome the inability to cross‑examine Ms Davis who, unlike Ms Pendlebury, is a witness of fact in respect of the incident itself. Ms Pendlebury can only give non hearsay evidence concerning the process that ensued within the school following the reporting of the incident.
If Ms Davis had been available as a witness, based upon Mr Sidhoum's evidence of the relevant events, and therefore what his instructions would have been to his counsel, Ms Davis would have been challenged on the following matters:
•The extent of the bad behaviour in particular at dot points 5 ‑ 9 under the heading 'BMIS policy', given that this would bear upon the inherent unlikelihood that the class would settle as quickly as is suggested.
•Whether the class then commenced to work quietly.
•Whether they did so for 10 minutes.
•And whether they had 'settled'.
•Whether the reference to the door has a window so the teacher could keep an eye on the class is an implicit suggestion that that is, in fact, what Ms Davis did.
•And if so, whether that is inconsistent with dot point 11 that Ms Davis had her back to the class at the time.
•Whether the reference to this small amount of time in dot point 12, coupled with the reference to defying instructions and quickly removing the stands is effectively a self‑protective mechanism.
•What, precisely, the instructions referred to at dot point 12 were.
Most critically, Ms Davis could have been cross-examined about why in her contemporaneous statement she made no reference to the class settling at all, still less for 10 minutes, before she left the room to talk to Mr Stuart.
Also, she could have been cross-examined as to whether in the heat of the moment she decided that the priority was to speak with Mr Stewart outside the classroom and either gave no thought to the potential hazard posed by the stands that she had collected and put on her desk or considered that the need to speak to Mr Stewart outweighed any potential risk that might thereby arise.
In terms, it could have been put to her that in the time between her drafting the incident report and her provision of information which made its way into the Review Document, the significance of the incident had resonated with her. That she understood that she would be likely criticised for her decision in leaving the classroom in circumstances where the misbehaving students could easily regain possession of the computer stands and resume throwing them at each other. And that in order to justify her decision to leave the classroom, she wrongly asserted that the class had settled for a period of time.
I accept that in considering the issue of undue prejudice, I am entitled to consider when the plaintiff was placed on notice that the defendant would, by reliance on this document, be submitting that the class had settled for 10 minutes.
Part of the relevant chronology is as follows:
•15 April 2015: MDS Legal, on behalf of Mr Sidhoum write to the Department of Education seeking pre-action discovery.
•24 April 2015: the Department respond.
•13 May 2015: a further letter from the Department enclosing, inter alia, the Review Document.[112]
[112] Exhibit 10, par 3.10 of supplementary trial bundle.
•26 February 2016: writ of summons filed.
•21 April 2017: statement of claim.
•3 May 2017: defence. The defendant did not admit par 5 of the statement of claim which referred, inter alia, to the teacher leave in the classroom to speak with Mr Stewart.
•26 June 2017: defendant files informal list of documents including (as part of E3) the Review Document.
•27 April 2021: minute of proposed amended defence which does not expressly plead an assertion that the class had settled.
•2 August 2021: further minute of proposed amended defence which does expressly plead (at par 6(iv)) an assertion that the class had settled without specifying the suggested time of approximately 10 minutes.
•2 September 2021: amended defence which does expressly plead (at par 6(v)) an assertion that the class had settled without specifying the suggested time.
•7 September 2021: by reply to the amended defence the plaintiff joined issue with par 6(v) of the amended defence.
•20 December 2021: plaintiff's written opening submissions which refer, repeatedly, to the concept of the class having settled without specifying a time period.
•25 January 2022: plaintiff's substituted written opening submissions which again refer to the class having settled without specifying a time period.
At a relatively early stage, those acting for the defendant provided to those acting for the plaintiff two documents, amongst many others. One document, an incident report authored by Mr Davis, made no reference to the class settling. Another document, the source of which could reasonably be inferred to be Ms Davis, spoke of the class settling for 10 minutes. At no time prior to September 2021 did the defendant formally plead that the class had settled. And even when it did, it did not identify the contentious time period.
Third surgery
On 8 July 2013 Mr Sidhoum was admitted to SCGH for the removal of silicon oil that had been inserted into the eye, removal of sutures and a vitrectomy, that is the removal of some or all of the vitreous humor from the eye. He was discharged on 9 July 2013 with instructions to use three different eyedrops four times per day.
Difficulties with absence from school throughout Year 12
Throughout this period of surgical treatment Mr Sidhoum was unable to engage in any strenuous physical activity. He was necessarily absent from school for significant periods of time. These absences, it is said, compromised his completion of Year 12 and contributed to his failure to complete his Certificate II pre-apprenticeship course in Electrotechnology.
Mr Sidhoum later completed the course in his own time. Being unable to finish the course while he was at school was a setback and delayed him obtaining his apprenticeship. After leaving school, Mr Sidhoum completed an electrical apprenticeship and is now a qualified electrician.
Difficulties with glare and asserted cosmetic defect
As a result of the loss of his iris, Mr Sidhoum has no means of filtering light into the left eye. Ever since the second operation, he has suffered discomfort from glare and associated headaches, both when outdoors and indoors in bright light. Mr Sidhoum must always wear wraparound high-quality sunglasses and a cap or hat when outdoors and when in bright light, for example in a shopping centre.
Mr Sidhoum could receive an artificial iris to reduce his sensitivity to light. If this was undertaken, it would be worthwhile also undertaking laser surgery to reduce Mr Sidhoum's residual astigmatism, and to provide him with tinted and untinted spectacles. Whilst Mr Sidhoum is prepared to undergo surgery to insert an artificial iris it will bring with it further risk, anxiety and trauma.
The defendant accepts that Mr Sidhoum is required to wear sunglasses in glare environments.
Dr Samuel, the consultant psychiatrist whose evidence I will discuss in detail below, reported that Mr Sidhoum remains very self‑conscious about the appearance of his eye. He is troubled by discomfort in bright light.
The plaintiff submits that Mr Sidhoum's eye is often red and watery. Dr McGeorge noted in a report that the redness of the eye is caused by dilated blood vessels following recurrent surgery. The plaintiff relies on the report of Dr McGeorge, who is the ophthalmologist who was retained by the defendant and who the plaintiff thought has seen Mr Sidhoum more recently than anyone else.[189]
[189] ts 4 - opening submissions.
Mr Sidhoum is self-conscious about the appearance of his eye. At trial he described feeling anxious when meeting a girl he likes. The plaintiff submits prior to the injury, Mr Sidhoum was an attractive young man. It is telling that he has not had a girlfriend since 2013. He has suffered self-consciousness since the injury as a result of his significant cosmetic disability caused by the absence of an iris. That self‑consciousness is likely to persist in the long term.
The defendant accepts that the injury has created a slight cosmetic defect. Based on my close examination of Mr Sidhoum at a point in the trial[190] I accept that there is a slight but not a significant cosmetic disability.
Difficulties with contact lens
[190] ts 74 - ts 75.
Mr Sidhoum tried to use a hard contact lens in his left eye but could not tolerate wearing a hard lens. Several artificial lenses were tried over a period of months.
Exotropia
As a result of his visual loss, Mr Sidhoum developed exotropia, (eye misalignment). He continues to notice exotropia on wakening in the morning. His consultant ophthalmologist, Dr Balaratnasingham explains that this is attributable to the brain's limited residual capacity to recognise images conveyed via the left eye.
Mr Sidhoum explained at trial that he can see more clearly with his right eye alone, and prefers to read with his left eye closed, but that if he does not use both eyes, his exotropia will return.
Fourth surgery
On 4 March 2019, Mr Sidhoum underwent surgery, because of the exotropia, to insert an artificial lens in the left eye. It was particularly complex surgery. Dr Balaratnasingham had to anchor the artificial lens with permanent sutures inserted into wall of the eye. Initially there was some improvement in Mr Sidhoum's vision. However, after that surgery, Mr Sidhoum began to suffer from macular oedema (swelling to the retina) secondary to the trauma to the eye. This condition is treatable with the injection of steroids into the eye. Mr Sidhoum initially underwent that procedure on a number of occasions but ceased because he found it to be painful and traumatic. After the procedure, for a period of time he felt there are 'black bubbles' in his eye. Left untreated, the macular oedema would result in permanent loss of vision.
Position as of October 2021
Dr McGeorge found Mr Sidhoum to have poor vision in the left eye as a result of 'cystoid macular oedema'. He was effectively monocular due to suppression of the left eye at the brain cortical level, despite some fusion of peripheral vision maintaining orthophoria at distance and a small exophoria at near.[191]
[191] Report 13 October 2021 at pages 16 - 28 in book of medical reports.
Whilst Dr McGeorge considered that Mr Sidhoum's suppression of the left eye at the brain cortical level is untreatable, he should have monthly injections for treatment of his cystoid macular oedema for the next two years, and potentially beyond that if further surgery causes further cystoid macular oedema. Dr McGeorge suggested that the pain of the injections could be reduced by using local anaesthetic in addition to the steroid. Dr McGeorge described the outlook for improvement in Mr Sidhoum's vision as guarded. Mr Sidhoum is at risk of glaucoma in his left eye due to the trauma to the iris root. He will require checks of his intraocular pressures every one to two years.
Ongoing anxiety about treatment
As discussed in detail below, Mr Sidhoum has seen a consultant psychiatrist, Dr Samuel, regularly since October 2018, in respect of his ADHD. Dr Samuel testified at trial. Dr Samuel's contemporaneous notes record that Mr Sidhoum suffered from occasional panic attacks, poor sleep and occasional low mood. Mr Sidhoum was self-conscious about the appearance of his eye, suffers social anxiety and suffers ongoing grief about the trauma associated with the eye injury. Mr Sidhoum used Valium to reduce anxiety.
In his September 2021 report, Dr Samuel's expressed the opinion that Mr Sidhoum is troubled by his poor vision and associated fatigue. He has a reduced ability to read and suffers from headaches and blurred vision. In his 13 January 2022 report Dr Samuel sets out a number of reported symptoms.
The plaintiff contends that Mr Sidhoum will require intensive and unpleasant treatment for his macular oedema, and lifelong regular monitoring of the health of his left eye. He is likely to remain anxious about the possibility of loss of vision in his right eye. Whilst there is no enhanced likelihood that would occur, if it did, Mr Sidhoum would effectively be blind.
The defendant accepts Mr Sidhoum will require up to four further injections into the left eye for another two years.
Difficulties in returning to sport and recreation, employment and driving
In his report of 15 September 2021, Dr Samuel notes that Mr Sidhoum was a very keen sportsman prior to the injury to his eye but is now unable to play sport. He has to avoids any activity that places his right eye at risk. Mr Sidhoum gave evidence that prior to the accident he enjoyed sports both at primary school and high school. In high school he enjoyed and excelled at swimming and kickboxing and also played rugby.
Mr Sidhoum's visual impairment and the risk of injury to his right eye has meant that he has never returned to those sports. At trial, Mr Sidhoum said that he now mostly exercises by going to the gym (although he avoids particularly strenuous gym work such as dead-lifts) and running. Swimming outdoors is difficult because of his sensitivity to glare. He has been unable to join his friends in playing soccer and lacrosse because he has inadequate depth perception for those games.
I note however that, in his 5 November 2020 report, a consultant occupational Dr Martyn Flahive, said that Mr Sidhoum is able to engage in most of his recreational pursuits, including gym and kickboxing, although he limited this due to a fear of injury to his left eye. Dr Flahive described him as a fit looking, muscular individual with a height of 174 cm and a weight of 89.5 kg.[192]
[192] Book of medical reports, pages 84 and 85.
There is an email report from the student services coordinator at Shenton College on 26 September 2013 advising that Mr Sidhoum's supervisor was suitably impressed by Mr Sidhoum's work ethic, manners and overall ability to complete the jobs set for him.[193] Mr Sidhoum successfully engaged in the workforce after completion of Year 12, prior to securing an apprenticeship. He went on to successfully complete his training contract and obtain his electrical trade.
[193] TB 175.
On 4 August 2020, Dr Balaratnasingam considered that Mr Sidhoum was fit for unconditional duty from a visual standpoint.[194] On 5 February 2021 Mr Sidhoum completed a pre-employment medical form indicating he had no difficulty with turning his head rapidly, using hand tools, concentrating for any length of time, climbing any ladders, and reading ordinary print/text.[195] In my view, Mr Sidhoum's injury does not have a significant impact on his ability to work in a trade or to have diminished work opportunities.
[194] TB 277.
[195] TB 280.
Mr Sidhoum received his medical assessment/fitness to drive certification for both car and motorcycle on 22 May 2013.[196] Mr Sidhoum referred in evidence to driving himself to medical appointments.[197] Dr Flahive also refers to his ability to drive. His injury does not impact on his ability to drive a vehicle.
[196] TB 164 - TB 165.
[197] ts 59.
I consider, however, that Mr Sidhoum's ability to participate in sports and exercise is substantially impaired.
Does Mr Sidhoum suffer a recognised psychiatric injury?
On 31 January 2018, Mr Sidhoum was reviewed by consultant psychiatrist, Dr Laughnarne. By a report dated 13 February 2018, Dr Laughnarne concluded that Mr Sidhoum did not meet the criteria for a diagnosable psychiatric disorder.[198] Mr Sidhoum did not rely on Dr Laugharne's opinion and did not tender the report or call Dr Laugharne at trial.
[198] TB 237 - TB 242.
Mr Sidhoum had been seeing another consultant psychiatrist, a Dr Matthew Samuel, since 23 October 2018[199] in connection with the diagnosis of ADD. In his evidence-in-chief Dr Samuel said that the reason for Mr Sidhoum's referral was to continue his prescription of dexamphetamine for ADHD. In due course Dr Samuel managed to talk to him about other issues and he came to discuss the eye injury and that he was struggling with it.[200]
[199] Book of medical reports, page 37.
[200] ts 135.
Prior to September 2021 no medical practitioner (treating or medico‑legal), including Dr Samuel[201] had ever suggested that Mr Sidhoum suffered any psychiatric illness other than ADHD.
[201] Book of medical reports, by reference to pages 37 - 42.
In his evidence-in-chief Dr Samuel said that the usual length of a first consultation concerning a possible diagnosis of ADHD would be 30 ‑ 40 minutes or 45 minutes,[202] and that subsequent consultations with Mr Sidhoum were 15 - 20 minutes.[203] When asked about the first consultation, Dr Samuel said:[204]
I think in 2018 he was still, as my recollection is good, that he was still an apprentice for the electrician work.
[202] ts 136 and ts 146.
[203] ts 136.
[204] ts 137.
Purely based on memory (despite the number of consultations that must have occurred with other patients over the years) Dr Samuel recalled Mr Sidhoum advising that he was struggling, his family were living overseas, he was struggling with his eye as an apprentice in training, he struggled to continue his studies, he had to work in an environment that was giving him a lot of anxiety, depth perception was a problem, he was working for the airport link at Forrestfield, it was very dusty, and it was difficult for him to work during the day.[205] None of those matters were written down anywhere by Dr Samuel in the clinical record for the first consultation (or at all while a treating practitioner).[206] Dr Samuel's powers of recall would be remarkable if this was the case.
[205] ts 137.
[206] ts 146 - ts 147.
When this was pointed out in cross-examination, Dr Samuel said that his recollection was also based on the two medical legal interviews he had with him.[207] Despite Dr Samuel's explanation in cross‑examination, the clear impression I formed from his lengthy answer at ts 146 was that this was a detail that he recalled from the first consultation.
[207] ts 147.
I am satisfied that Mr Sidhoum provided details such as depth perception being a problem at the consultation, for medical‑legal purposes, in September 2021 and that he had never provided those details to Dr Samuel in Dr Samuel's capacity as a treating physician.
In examination-in-chief, Dr Samuel stated that in all of the time that he saw Mr Sidhoum as a patient and wrote up his notes, he had no knowledge at all that there were legal proceedings going on in relation to the eye injury.[208] That spans the period October 2018 to September 2020. In re-examination, however, Dr Samuel said, that a letter he received from Mr Sidhoum's solicitors in 2021 was a very big surprise because after this many years he never knew that the case was still going on. He thought it would have been settled.[209]
[208] ts 141.
[209] ts 157.
I accept that this suggests Dr Samuel did in fact know that there was or had been legal proceedings on foot, albeit that he seemed to assume that it would have been resolved prior to his first consult of October 2018.
In a report dated 15 September 2021, Dr Samuel arrived at a possible diagnosis of PTSD associated with the accident. At par 13.3 of this report (which was provided without the benefit of an interview), Dr Samuel stated, 'in my opinion, he has suffered significant psychiatric issues relating to his vision impairment'. Dr Samuel then sets out a number of symptoms and concludes, 'so, in my opinion, he has ongoing anxiety symptoms related to his vision'.[210] I accept the expert for the defendant Dr Synnott's evidence that anxiety symptoms (or, indeed, 'significant psychiatric issues') are not to be equated with a diagnosed psychiatric condition. Dr Samuel's conclusion at that stage is tentative: 'he could have PTSD related to the incident'.[211]
[210] Dr Samuel explained at ts 158 that his conclusion that Mr Sidhoum suffered significant psychiatric issues was predicated on those symptoms.
[211] Book of medical reports, page 44.
Prior to his consultation for medico‑legal purposes, Dr Samuel had last seen Mr Sidhoum on 23 September 2020. On that occasion he recorded, 'nil' issues. He also recorded that Mr Sidhoum was working full-time, current medications were dexamphetamine and the plan was to review in six months.[212]
[212] Book of medical reports, page 42.
In examination-in-chief, he stated that:
I think the issues when I mentioned nil, I think I was trying to say that, you know, nothing has changed from the last time. I think things were still ongoing, but I didn't want to repeat the same thing again and again … He still had ongoing symptoms.[213]
[213] ts 141.
Dr Samuel agreed, in cross-examination, that one explanation for writing 'nil' was that in fact, there were nil issues insofar as Mr Sidhoum's anxiety or his other reported injuries.[214]
[214] ts 152.
I accept the defendant's submissions that Dr Samuel's September 2021 report is based on upon his understandably brief clinical records, his memory, and the assumptions provided to him by Mr Sidhoum's solicitors in their letter of instruction. It is not drawn, at all, from any interview with Mr Sidhoum in September 2021, nor from earlier contemporaneous documented reporting of the symptoms he sets out in this report, when he was Mr Sidhoum's treating practitioner.
Dr Samuel did not interview Mr Sidhoum for these purposes until 12 January 2022. Having assessed Mr Sidhoum two weeks prior to the trial, Dr Samuel then expressed a definitive opinion, for the first time, that Mr Sidhoum had a history of Anxiety Disorder, 'most probably' PTSD, with a differential diagnosis of mixed anxiety and depression.[215]
[215] Book of medical reports, page 97. He also noted the history of ADHD.
Mr Sidhoum had not returned to Dr Samuel as a patient reporting any of the issues ventilated in his two reports since September 2020.[216]
Dr Howe Synnott
[216] ts 154 - ts 155.
In addition to its submissions concerning the inadequacies of Dr Samuel's evidence, the defendant also relied upon the evidence of another consultant psychiatrist, Dr Howe Synnott. Dr Synnott reviewed Mr Sidhoum on 20 November 2021.
Dr Synnott acknowledged in evidence that PTSD is a diagnosis that may be made by application of the Diagnostic and Statistical Manual V (DSM‑V) for the diagnosis of psychiatric disorders. He accepted in cross-examination that intrusive thoughts, flashbacks, avoidance of distressing thoughts, avoidance of injections and tearfulness at work if taken together could constitute a diagnostic condition.[217] He testified that sleep disturbance is a criterion for many different psychiatric conditions and it may imply no psychiatric condition at all. It's a non-specific psychiatric symptom. It can be one of the diagnostic criteria in DSM-V for PTSD as well as many other psychiatric conditions. When Dr Synnott saw him, Mr Sidhoum was not having sleep problems.[218]
[217] ts 266 - ts 268.
[218] ts 270.
In his report dated 2 December 2021[219] Dr Synnott had concluded that since the injury Mr Sidhoum has experienced intermittent psychiatric difficulties, particularly anxiety, regret and dwelling on how the injury might have been avoided. Such symptoms are not uncommon and do not warrant a psychiatric diagnosis.[220]
[219] Book of medical reports, pages 47 - 62.
[220] Paragraph 22(g) at page 56.
Dr Synnott testified that Mr Sidhoum recounted symptoms of anxiety, feeling uncomfortable, 'not myself', social awkwardness, times of sadness, thinking about how the injury might have been avoided and thinking what if he missed (seeing) something to the left and concerns about the appearance of his eye. Mr Sidhoum told him the symptoms fluctuated over the years, but 'were noticeably better since he had the insertion of the intraocular lens in March 2019'. He said that not only is his vision better but the appearance of his eye to the observer is better. Mr Sidhoum had reported an improvement in his psychiatric state, and a diminution in the symptoms after the surgery in March 2019.[221]
[221] ts 258.
In cross-examination it was established that although Dr Synnott had recorded a number of times in his report, that Mr Sidhoum's vision had improved after the insertion of the intraocular lens, Mr Sidhoum did not tell him that he needed to have injections for cystoid macular oedema.[222]
[222] ts 265.
Dr Synnott maintained that there is a distinction between the presence of psychological distress or psychological symptoms and psychiatric disorders.[223] He agreed that treatment (for example, medication for anxiety) can alleviate psychiatric symptoms present, even in the absence of a psychiatric disorder.[224]
Analysis
[223] ts 277.
[224] ts 277 - ts 278.
I accept that an appreciation of the full extent of Mr Sidhoum's psychological condition can only be properly resolved based on the reliability and credibility of Mr Sidhoum's recount as a historian. The symptoms now recounted, in Dr Samuel's report of 13 January 2022 and during evidence[225] of Mr Sidhoum's brain going into overdrive, unable to manage anxiety, overthinking, insomnia, getting reminders of the event every now and again, trying to avoid thinking about the event and becoming tearful at work are all subjective symptoms, requiring acceptance of Mr Sidhoum as an accurate and credible historian.
[225] ts 141 - ts 142.
As noted at [77] - [87] Mr Sidhoum has on occasions deliberately withheld information or answered dishonestly if it was in his interests to do so.
Mr Sidhoum spoke of being more open with telling Dr Samuel things than other practitioners.[226] It is reasonable to conclude that if Mr Sidhoum was experiencing this level of symptomatology, he would have discussed them with Dr Samuel, as his treating practitioner. It is further reasonable to conclude that Dr Samuel would have likely diagnosed an illness and recommended psychotherapy sessions and a change in his medication at that time. He would not have recorded 'nil issues'. I conclude that Mr Sidhoum did not do so because he was not suffering the level of symptoms that Dr Samuel reports in September 2021 and January 2022.
[226] ts 76.
Obviously Mr Sidhoum suffered a trauma in February 2013. He has, as a result, experienced psychiatric distress on occasions. The symptoms he described to Dr Synnott are understandable and reasonable. I accept Dr Synott's evidence that they are also symptoms seen in the broader community and are not, in Mr Sidhoum's case, pathological or aberrant.[227]
[227] ts 259.
Given the difficulties with Dr Samuel's evidence - the sole expert evidence suggesting a possible or probable psychiatric condition - the plaintiff has failed to satisfy me that Mr Sidhoum's suffers from PTSD. Mr Sidhoum cannot, therefore, recover damages for consequential mental harm,[228] save to say that psychotherapy for his continuing anxiety would be beneficial.
[228] CLA, s 5.
Comparison with White v Redding and Wreford v Lyle
The plaintiff submits that Mr Sidhoum's injury and its sequelae bears some comparison, but with points of distinction, with the injury suffered by the plaintiff in White v Redding[229] where the assessment of general damages by the trial judge of $349,500.55 was upheld by the New South Wales Court of Appeal. The defendant argues that the injuries and consequences in that case were much more serious. It submits that a better comparator is Wreford v Lyle[230] where general damages of $125,000 were awarded.
Comparison with White v Redding
[229] White v Redding [2019] NSWCA 152.
[230] Wreford v Lyle [2021] WASCA 20.
The plaintiff in White v Redding was struck to the left eye with a tennis ball. Like Mr Sidhoum, she was 16 years old[231] at the time. In assessing the consequences to her the court took account of the fact that she was an elite competitive gymnast and a state champion surf life saver. She was unable to return to either pursuit. She was also diligent in her schoolwork. She used to do her study at night, on the bus or in the car. In due course she obtained an ATAR (Australian Tertiary Admission Rank) of 97.25 out of a theoretical mark of 100. When Ms Redding left school, she did not know what to do because, she said, her past aspirations had been destroyed by the accident. She had aspired to become a helicopter pilot and join the police force or special forces. Whilst unable to do so, she was able to pursue a career as a psychologist.
[231] She was 20 at the time of trial.
Ms Redding was a very high achiever, both academically and in elite sports, prior to the accident. It was clear that a lot was taken away from her by the accident, in the sense that not only had she suffered a serious injury to and interference with her vision, but many other things which brought her great satisfaction in life could no longer be pursued. Her ability to participate in sport has been all but destroyed, and it is understandable that her enthusiasm for study has waned. The trial judge accepted her evidence that she feels a great sense of loss in her life as a result of the eye injury.
Mr Sidhoum was also a school student. His reports were generally poor. He did not aspire to attend university. He was able to complete, consistent with his intentions as of February 2013, an electrical traineeship. He remains gainfully employed. He enjoyed sport which is now substantially curtailed.
Ms Redding lost 97% of the vision in her left eye becoming, effectively, monocular. That resulted in difficulty in reading, double vision, headaches, eyestrain and exotropia. Mr Sidhoum is also effectively, monocular. Ms Redding did not develop macular oedema and did not require repeated painful and traumatic steroid injections. Mr Sidhoum required more surgical procedures.
Mr Sidhoum is particularly troubled by glare when outdoors and when indoors under bright light. He has a slight cosmetic disability.
Ms Redding had a marked change in her personality. She may suffer anxiety in the future impediments in her everyday life. Mr Sidhoum has exhibited psychiatric symptoms as noted by Dr Synnott.
Mr Sidhoum is still able to drive as was Ms Redding.
As is the case here, it was appropriate to take into account that if Ms Redding suffered any problem with her right eye in the future, she will be visually severely disabled because of the almost total lack of vision in her left eye. The possibility of this occurring is inevitably a cause of anxiety.
I consider the severity of Ms Redding's loss to be appreciably greater than in Mr Sidhoum's case.
Comparison with Wreford v Lyle
Ms Wreford was 45 at time of injury. She was cycling when she was struck by a car. She had other (life threatening) injuries but the comparable injury was chronic, cystoid macular oedema. She had a pre‑existent congenital abnormality of the vascular system of the right eye, which had previously caused number of vitreous haemorrhages in this eye and was likely to have been a predisposing factor to the development of a fresh vitreous bleeding from the injuries in the motor vehicle accident.
She suffered exacerbation of the intraocular haemorrhages, particularly in her right eye, which caused sudden, acute glaucoma. This required surgery, following which Ms Wreford developed chronic cystoid macular oedema. However, she would have needed operative treatment on one or other of her eyes eventually, in any event. Further, she could have developed glaucoma due to treatment on one or other of her eyes eventually, in any event. Further, she could have developed glaucoma due to her raised intraocular pressure even if the accident had not occurred.
The award of general damages of $125,000 at first instance,[232] which was upheld on appeal, reflected a number of injuries in addition to her eye injury. She was left with difficulty in breathing, due to the orthopaedic damage to her ribs plus the scarring to the lungs themselves. Her inability to breathe deeply caused her restrictions on activity. The injuries to her shoulder and collarbone are significant and have left her with, even after treatment, restriction of movement and pain in the left shoulder. She had persistent orthopaedic deficits and cosmetic injuries, namely the deformity of her thoracic area and her deformed scapula and scarring.
[232] Wreford v Lyle [2018] WADC 173.
I consider the severity of Ms Wreford's loss (solely in respect of her eye injury) to be significantly less than in Mr Sidhoum's case.
Conclusion on non-pecuniary loss
Given the impact of this eye injury on Mr Sidhoum's enjoyment of life I assess damages for non‑pecuniary loss in the sum of $225,000.
By operation of s 9(3) of the CLA, if non-pecuniary loss is assessed to be more than the sum of 'Amount A' and 'Amount C' as prescribed, no deduction is to be made from the sum assessed. From 1 July 2021, 'Amount A' is $23,000 and 'Amount C' is $66,500 57 - the sum of those amounts is $89,500. Mr Sidhoum's non-pecuniary loss is assessable in a sum well in excess of that sum, so that no deduction is required.
Other than general damages, the other heads of damage are agreed save for, firstly future psychotherapy expenses. The plaintiff has claimed $7,440 for future sessions together with medication, predicated on a requirement of approximately 20 sessions of psychotherapy. The defendant's position is essentially that the absence of an established psychiatric condition precludes this head of damages. Whilst I have found that the plaintiff has not established a recognised psychiatric condition, it is common ground that Mr Sidhoum suffers from resultant anxiety and it seems to me that it is reasonable to allow for 15 sessions of psychotherapy together with medication. There will, accordingly, be an award for $5,940 under this head of damages.
Secondly, in respect of future travelling and parking, the plaintiff has claimed the sum of $8,532.94. It is not possible, in my view, to reach the level of precision inherent in that specification. I agree with the defendant's submission that a global sum of $4,500 is appropriate under this head.
Summary
| General damages | $225,000.00 |
| Future loss of earning capacity | $200,000.00 |
| Future medical expenses | $87,656.57 |
| Past medical expenses | $13,401.35 |
| Past loss of earning capacity | $11,608.21 |
| Future psychotherapy sessions | $5,940.00 |
| Past travel and parking expenses | $4,500.00 |
| Future travelling and parking | $4,500.00 |
| Interest on past loss of earning capacity | $3,134.21 |
| Interest on past travelling and parking expenses | $1,250.00 |
| Past loss of superannuation | $1,028.90 |
| Total | $558,019.24 |
Overall Conclusion
There will be judgment for Mr Sidhoum, apportioned as to 65% to him which is $362,712.50.
I will hear from the parties as to costs and also the appropriate indemnity from the defendant in respect of any amounts repayable to Medicare Australia and interest on past medical expenses which should be added to that figure of $362,712.50.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CP
Court Officer
19 APRIL 2022
1
9
2