Sidhoum v Minister for Education

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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…

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Details
Case
[2022] WADC 35
Decision Date

CaseChat Overview and Summary

Sidhoum v Minister for Education involved a claim for negligence brought by a student against a school for failing to protect him from the actions of another student, resulting in the claimant suffering psychiatric injury. The case was heard in the Supreme Court of Western Australia. The central legal issues were whether the school owed a duty of care to the claimant to protect him from the actions of other students, the admissibility of a document as a business record under section 79C of the Evidence Act 1906 (WA), the contributory negligence of the claimant, and the assessment of damages for psychiatric injury.

The court found that the school did owe a duty of care to the claimant to protect him from foreseeable harm caused by other students. The court examined the admissibility of a document under section 79C, concluding that the document was a genuine business record and thus admissible as evidence of the facts it contained, despite being hearsay. The court also considered the claimant's contributory negligence and its effect on the damages recoverable. In assessing the quantum of damages, the court took into account the nature and severity of the psychiatric injury, the contributory negligence of the claimant, and the impact of the injury on his life.

The court ordered the defendant to pay damages to the claimant for his psychiatric injury, taking into account the degree of contributory negligence. The exact amount of damages was determined based on the evidence presented regarding the nature and extent of the claimant's injuries and the impact on his life. The court's decision highlighted the importance of schools taking reasonable steps to protect students from harm caused by other students and the admissibility of business records as evidence in negligence claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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