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Stewart v Hames

Stewart v Hames

Case [2021] WADC 93 11 October 2021

Mental Health Act 1996 (WA)

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   STEWART -v- HAMES [2021] WADC 93
CORAM:   BOWDEN DCJ
HEARD:   3-7, 10-14, 17-21, 24-28, 31 MAY, 1-4, 8-11, 14-15 JUNE 2021
DELIVERED          :   11 OCTOBER 2021
FILE NO/S:   CIV 3131 of 2016
BETWEEN:   DENIS STEWART
Plaintiff
AND
KIM HAMES
First Defendant
GERALDINE CARLTON
Second Defendant
CHRISTINE CULLEN
Third Defendant
GEFFORY WILLIAMSON
Fourth Defendant
GORDON SHYMKO
Fifth Defendant
BIJU THOMAS
Sixth Defendant
RAJ SEKHON
Seventh Defendant
DANIELA VECCHIO
Eighth Defendant
SHARON DELAHUNTY
Ninth Defendant
SOUTH METROPOLITAN HEALTH SERVICE
Tenth Defendant

Catchwords:

Fraudulent concealment of falsified medical records - Occupier's liability - Deceit - Absence of consent to admission to a mental health ward - Public Interest Disclosure Act (WA) - Reprisals - Misfeasance in public office - Intentional infliction of emotional distress - Conspiracy - Fraudulent medical misdiagnosis - Negligent medical misdiagnosis - False imprisonment - Assault and battery - Fraudulently falsifying an involuntary order document

Court made its own inquiry when employee of tenth defendant said that a witness whom the plaintiff wished to call to give evidence against the tenth defendant was not medically fit to give evidence

Self-represented litigant - Permission granted to cross-examine witnesses he called

Legislation:

Mental Health Act 1996 (WA)

Result:

All claims dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr P E Jarman
Second Defendant	:	Mr P E Jarman
Third Defendant	:	Mr P E Jarman
Fourth Defendant	:	Mr P E Jarman
Fifth Defendant	:	Mr P E Jarman
Sixth Defendant	:	Mr P E Jarman
Seventh Defendant	:	Mr P E Jarman
Eighth Defendant	:	Mr P E Jarman
Ninth Defendant	:	Mr P E Jarman
Tenth Defendant	:	Mr P E Jarman

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Jarman Legal
Second Defendant	:	Jarman Legal
Third Defendant	:	Jarman Legal
Fourth Defendant	:	Jarman Legal
Fifth Defendant	:	Jarman Legal
Sixth Defendant	:	Jarman Legal
Seventh Defendant	:	Jarman Legal
Eighth Defendant	:	Jarman Legal
Ninth Defendant	:	Jarman Legal
Tenth Defendant	:	Jarman Legal

Case(s) referred to in decision(s):

Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
British American Tobacco Australia Limited v Gordon [2009] VSC 619
CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304
Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137
Coventry Village Pty Ltd as Trustee for the Coventry Square Unit Trust v Gourmet and Allied Foods Pty Ltd [2021] WADC 40
Cox v Journeaux (No 2) (1935) 52 CLR 713
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Dorado v Mener Group Pty Ltd [2021] WADC 1
Ellis (by his Next Friend…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v Hames

Details

AGLC: Stewart v Hames [2021] WADC 93
Case: [2021] WADC 93
Decision Date

CaseChat Overview and Summary

The plaintiff, Denis Stewart, brought a proceeding against 10 defendants for 68 causes of action. The causes of action arose from Mr Stewart's admission to the Rockingham Hospital from 17 September 2013 until 2 October 2013 and events occurring after his discharge. The defendants denied liability. Mr Stewart alleged that he had been deliberately, or in the alternate, negligently diagnosed with a mental illness and had been falsely imprisoned, assaulted and battered. He further alleged that there had been reprisals against him for making complaints about the treatment he received at the hospital and the events that occurred there. The court dismissed all claims. The court found that Mr Stewart had not established that his medical records had been fraudulently concealed or falsified. The court found that Mr Stewart had not established that he had been negligently or deliberately misdiagnosed with a mental illness. The court found that the evidence did not establish that there had been reprisals against Mr Stewart for making complaints.

Orders