Stewart v Hames - [2021] WADC 93

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 Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Giller v Procopets (2008) 24 VR 1
Googe v Spoljaric [2017] WADC 99
Gordon v Carroll (1975) 27 FLR 129
Gordon v The Queen (1982) 41 ALR 64
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd [No 3] (1990) 20 NSWLR 15
Gregory Spencer Ward t/as Ward's Stock Transport v Watson [2021] WASCA 44
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111
Houston v The Queen [1982] 8 A Crim R 392
Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40
Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39
Jeffries v Fisher [1985] WAR 250
Leheste v The Minister for Health [2012] WADC 92
Lonrho Ltd v Shell Petroleum (No 2) [1982] AC 173
Macleod v The Queen (2003) 140 A Crim R 343
Magill v Magill [2006] HCA 51
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899
Martin v Minister of Health [2016] WADC 15
McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mooney v James [1949] VLR 22
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Nikolich v Webb [2020] WASCA 169
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Panagoulias (by his next friend Fiona Averil Panagoulias) v East Metropolitan Health Service [No 4] [2017] WADC 118
Pappas v Soulac [1983] FCA 3; (1983) 50 ALR 231
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
Peters v The Queen (1998) 192 CLR 493
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Murphy (1837) 8 C & P 297; 173 ER 502
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Stack v The State of Western Australia [2004] WASCA 300; (2004) 151 A Crim R 112
Strong v Woolworths t/as Big W [2012] HCA 5; (2012) 246 CLR 182
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
Wainwright v Home Office [2004] 2 AC 406
Wilkinson v Downton [1897] 2 QB 57
Wright v The Minister of Health [2016] WADC 93
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

BOWDEN DCJ:

This action relates to 68 claims against 10 defendants arising from Mr Stewart's stay at the Rockingham Hospital (the Hospital) from 17 September 2013 until 2 October 2013 and events occurring after his discharge.
For part of his stay, 20 September 2013 to 2 October 2013, Mr Stewart was diagnosed with a mental illness and declared an involuntary patient pursuant to the Mental Health Act 1996 (WA) (MHA).
Mr Stewart called 34 witnesses to support his case at a trial which ran for 31 days.
Mr Stewart says he was deliberately, or in the alternate, negligently diagnosed with a mental illness. Mr Stewart says he and his wife were complaining about his treatment and he wished the police to be called about an assault that had occurred in the Hospital and he was threatening to sue the Hospital, its staff and go to the media. He says the misdiagnosis was made as retaliation for the complaints, to cover‑up the Hospital's negligence and because the defendants wanted to stigmatise him so that if he commenced legal proceedings or went to the media, he would be less likely to be believed.

Mr Stewart says that while he was in Hospital, and after his release, he was subjected to deliberate reprisals by the Hospital staff, including doctors, for the reasons referred to.
The defendants' case is that the involuntary patient order was properly made. The defendants say that even before Mr Stewart had made any complaints or witnessed the assault an emergency department (ED) doctor was concerned about his psychiatric state and a senior medical officer made a diagnosis of eccentricity/hypomania with a differential diagnosis of an evolving manic episode and two other doctors had formed the impression that he was suffering either a manic episode, stress induced, or a hypomanic episode with grandiose delusions.

The parties and others involved

Mr Stewart is an inventor and boilermaker/welder.
The first defendant, Dr Hames, was at the material time (2013 ‑ 2014) the Minister for Health for the State of Western Australia and is the longest serving Minister for Health in this State.
Under the Hospitals and Health Services Act 1927 (WA) the first defendant, in 2013, was in control of the management of the Hospital and was vicariously liable for the acts or omissions of its employees, servants or agents acting within the scope of their employment agency or authority.
The second defendant, Ms Carlton, was at the material times the Executive Director of the Hospital and employed by the tenth defendant.
The third defendant, Ms Cullen, was the Acting Manager of Safety and Quality for the Hospital and employed by the tenth defendant.
The fourth defendant, Dr Williamson, was the Director of Clinical Services for the Hospital and employed by the tenth defendant.
The fifth defendant, Dr Shymko, was the Director for Mental Health for the Hospital and employed by the tenth defendant.
The sixth defendant, Dr Thomas, was a psychiatrist and a senior medical officer of the Hospital and employed by the tenth defendant.
The seventh defendant, Dr Sekhon, was a psychiatrist and employed by the tenth defendant.
The eighth defendant, Dr Vecchio, was a psychiatrist and employed by the tenth defendant.
The ninth defendant, Ms Delahunty, was for part of the relevant period, the acting nurse director for mental health of the Hospital and employed by the tenth defendant.
Mr Heslop whilst not a defendant was the acting nurse director of the Hospital from approximately October 2013 until May or June 2014. He took over that position when Ms Delahunty left.
The tenth defendant was incorporated in July 2016 pursuant to s 32 of the Health Services Act 2016 (WA) (HSA) and assumed management and control of the Hospital from 1 July 2016 pursuant to s 237 and s 238 of the HSA and a transfer order made by the Minister on 30 June 2016. As a result, it assumed all existing obligations and liabilities of the Hospital which included any liability the Minister may have had to the plaintiff.
The tenth defendant admits that it is vicariously liable for any of the acts or omissions of the second to the ninth defendant whilst they were acting within the scope of their employment, agency of authority.
The tenth defendant admits it is the occupier of the Hospital for the purposes of the Occupiers' Liability Act 1985 (WA) (OLA) by operation of the Health Services (Health Service Providers) Order 2016 (WA).

A brief outline of events

All events occurred in 2013 unless otherwise stated and times are based on a 24-hour clock.
Mr Stewart voluntarily attended the ED of the Hospital on 17 September. He was concerned that he had thyroid issues and/or a panic or heart attack.
The ED doctor who saw Mr Stewart on 17 September had the impression Mr Stewart was suffering from anxiety and queried whether he had delusions and was sufficiently concerned to call for Mr Stewart to be reviewed by the psychiatric team.
The senior medical officer who saw Mr Stewart on 17 September made a diagnosis of eccentricity/hypomania with a differential diagnosis of an evolving manic episode and recommended that Mr Stewart be admitted as a voluntary patient so he could be observed and the issue relating to his thyroid could be checked.
Another senior medical officer in psychiatry who saw Mr Stewart on 18 September at 11.00 formed the impression that Mr Stewart was suffering a manic episode, stress induced, and recommended he be voluntarily admitted to the mental health unit of the Hospital, Mimidi Park (Mimidi), when a bed became available.
Mr Stewart was admitted to Mimidi on 18 September at about 15.00. Mr Stewart says he was not advised he was being admitted to a mental health unit and gave no informed consent to that admission.
A doctor undergoing his training in psychiatry saw Mr Stewart on 18 September at 18.30 and made a provisional diagnosis that Mr Stewart was suffering a hypomanic episode with grandiose delusions. Mr Stewart says the trainee psychiatrist made up his medical notes or copied from other doctors' notes.
Mr Stewart says that all of the diagnoses were wrong and although he thought in 2013 that he was having a panic attack or heart attack or a thyroid issue he now realises he was suffering from Cannabinoid Hyperemesis Syndrome (CHS).
On 19 September at about 20.30 Mr Stewart suffered an injury to his shoulder when he restrained a male co-patient who was attacking an elderly female patient in Mimidi. Mr Stewart says that when the Hospital security guards attended the scene of the assault, they laughed even when he told them to stop.
Mr Stewart says there was an unreasonable delay in providing medical treatment to the elderly female patient and himself after the assault. He was seen by the duty medical officer at 21.30 and shortly after this was taken by a psychiatric nurse to the ED for a shoulder x‑ray. Mr Stewart says the nurse refused his repeated demands to call the police in connection with the assault and made a phone call about placing him on 'forms'. Mr Stewart did not understand what this meant and fearing that he would be made an involuntary patient and thereby falsely imprisoned, fled the Hospital by running to a nearby house and asking the occupant to ring the police.
At about 22.10 on 19 September, that is, after Mr Stewart ran from the Hospital grounds, he was placed on a 'Form 1' under s 29 of the MHA which enabled the Hospital to detain him until he was assessed by a psychiatrist. The defendants say this was done out of genuine concern for the welfare of Mr Stewart.
Mr Stewart says he was placed on a Form 1 deliberately to stop him from calling the police and reporting the assault and to cover‑up the security guards laughing, the Hospital's breaches of duty and his injuries.
The police, who had received calls from both the nearby resident and the Hospital, arrived and located Mr Stewart in nearby bushland standing with, according to one officer, his right hand outstretched like a tree. Mr Stewart denies that he was located in bushland posturing as a 'tree'.
The police returned Mr Stewart to the Hospital and he was reviewed by a senior medical officer at about midnight on 19 September.
On 19 and 20 September Mr Stewart told various staff at the Hospital that he wanted the police called and that he was going to sue the Hospital, security guards and medical staff, and go to the media.
On 20 September at about 11.15 Mr Stewart contacted the complaints section of the Hospital complaining that he was now not free to leave the Hospital (as a result of being placed on the Form 1) and complaining about his treatment and the Hospital staff not calling the police despite his requests. At 12.00 that day Dr Williamson arranged for the treating team to be advised that Mr Stewart wanted to report the assault to the police.
Within hours of Mr Stewart's complaint to the Hospital he was reviewed by a psychiatrist (14.00) and at 14.45 declared an involuntary patient (Form 6) under s 43(2)(a) MHA on the basis that he was having a manic episode.
Mr Stewart admits that he faked chest/heart pains on 20 September and faked a coma on 21 September in an effort to avoid having to take further medication. Even though a tube was inserted in his penis and he was placed on a drip Mr Stewart did not tell the health clinicians that he was faking the coma until sometime later.
On two separate days (22 September and 25 September) Mr Stewart was forcefully injected with drugs because he refused to take his oral medication. Other oral medication was taken by Mr Stewart under the threat of injections if he failed to do so.
On 23 September Dr Williamson called for a meeting with other administrators to discuss the ramifications of Mr Stewart's request that the police be notified about the assault. No one who attended that meeting can recall what was discussed.
Nursing notes record that on 24 September when a transfer to another hospital was discussed Mr Stewart said he would stay at the Hospital as he was going to sue the doctors (ts 2526 - ts 2527, exhibit 40 A267, ts 4504).
On 25 September Mr Stewart met with Ms Delahunty who was investigating the complaints he and his wife had made. Mr Stewart says the forceful injection of drugs which occurred shortly after that meeting was a reprisal against him for his complaints and was done to terrorise both he and his wife. Mr Stewart's closing submission was that it had been prearranged so that if his complaints were not resolved at that meeting, he would be forcefully injected with drugs. Mr Stewart says Ms Delahunty's investigation of his complaints was deficient and part of the ongoing cover-up to discredit him for the reasons previously referred to.
Mr Stewart was ultimately discharged from hospital on 2 October. Shortly after this he went to the Northern Territory to work because he said he was so frightened of what had and may happen to him.
From approximately March 2014 to November 2014 Mr Stewart was in frequent contact with the Hospital about his complaints and medical records.
Mr Stewart says that a number of reprisals were carried out against him after he contacted the Hospital in March 2014 seeking access to his records including:
•Mr Heslop contacting the WA Police on 6 March 2014 to have him arrested and brought back into the Hospital.
•Mr Heslop contacting the Northern Territory Crisis Assessment Team (CAT) on 16 March 2014 and forwarding them a copy of his discharge summary.
•Mr Heslop contacting the Northern Territory police on 16 March 2014 and advising them of the reasons for his admission to the Hospital.
•Mr Heslop sending an email to other Hospital staff on 17 March 2014 saying 'we agree not to progress Mr Stewart's FOI access at this time'.
•The tenth defendant releasing in August 2014 only part of his redacted medical records under the Freedom of Information Act (1992) (WA) (FOI Act) and then released further redacted medical record in September 2014.
•Ms Cullen's email of 17 October 2014 portraying him as a person who was harassing the Hospital so that if he appealed to the Freedom of Information Commissioner for the release of further information under the FOI Act he would be seen as a crazy person who was harassing the defendants and further information would not be made available.

A brief summary of the legal basis of Mr Stewart's claims

In his amended statement of claim of 18 October 2019 (ASOC) Mr Stewart details his claims as follows.

Claim 1 - Fraudulent concealment of the plaintiff's falsified medical records

Mr Stewart says that during the pre-trial process the defendants fraudulently concealed his medical notes which had been fraudulently and falsely made to support the misdiagnosis.
Mr Stewart says that when he applied under the FOI Act for the release of his medical records the defendants released only part of his medical records which had been redacted and then, after he complained, released further redacted medical records. He says the medical records were redacted deliberately to remove material which showed him in a positive light, or showed the Hospital in a negative light, or disclosed matters about his treatment that he was previously unaware of.
Mr Stewart also says some of the defendants falsified the medical notes to support the false diagnosis.

Claim 2 - Duty of care negligence

This claim is more properly identified as occupier liability and relates to what Mr Stewart says was a dangerously unsafe hospital ward (Mimidi).

Claim 3 - Deceit

Mr Stewart says he was deceived into staying at Mimidi by being told he would like it, it had a gym, it was like a holiday park, and he was only there for tests to be conducted and he could leave at any time.

Claim 4 - No consent

Mr Stewart says he was not advised that Mimidi was a mental health ward and gave no informed consent to his admission into that ward.

Claim 5 - False imprisonment

Claim 6 - Fraudulently falsifying an involuntary order documents

Claim 7 - Assault and battery

Claim 11 - Misdiagnosis - Medical negligence

These claims encompass the entirety of Mr Stewart's stay after he was returned to the Hospital by the police on 19 September.
The core of Mr Stewart's claim that he was deliberately and falsely diagnosed with a mental illness and that the s 29 MHA referral and s 43 MHA involuntary order were fraudulently and falsely made and as a result of the deliberate or, alternatively, the negligent misdiagnosis, he was falsely imprisoned in the Hospital and subject to assaults and batteries by being forcefully injected with drugs on two occasions and threatened with forceful injection of drugs on other occasions.

Claim 8 - Reprisals

Mr Stewart says that under the Public Interest Disclosure Act 2003 (WA) (PIDA) he was a whistle-blower as he had complained to the Minister and hospital authorities about the events occurring in a public hospital.
He says reprisals were taken by the defendants against him for being a whistle-blower in contravention of the PIDA and that contravention provides him with a civil right of action.

Claim 9 - Misfeasance in public office

Mr Stewart says the then Minister of Health committed misfeasance of his public office because with full knowledge of what was occurring in the Hospital, including the reprisals, the Minister did nothing to help him but merely signed letters in response to he and his wife's complaint and failed to investigate his complaints properly.

Claim 10 - Intentional infliction of emotional distress

Mr Stewart's says the defendants intentionally inflicted emotional distress on him whilst he was in hospital and subsequently. There is a degree of overlap with claims 5, 6, 7, 8, 9 and 11.

Claim 12 - Conspiracy

In Mr Stewart's ASOC he details by a claim number each of his claims. Conspiracy is not referred to. However, on the 19^th page of the ASOC, he summarises his claims and the claim of conspiracy is listed against all 10 defendants. No particulars as to the nature of the conspiracy, the overt acts or the co-conspirators are provided.
In his closing submissions Mr Stewart sought to further amend the ASOC to incorporate the alleged conspiracies against the defendants. In view of Mr Stewart's unrepresented status and as the court had heard all of the evidence, the defendants made no objection and the amendment was allowed (ts 4651 ‑ ts 4652).
The claims of conspiracy against each defendant vary and are detailed later in this judgment.

Self-represented plaintiff

Mr Stewart was self-represented.
It is well established that a litigant in person should be afforded some latitude in the pleadings and their submissions should be approached with some flexibility. The court needs to be careful to ensure that if he has a case, it is not denied because of poorly expressed documents or submissions. At the same time the court must ensure that any latitude given does not work an injustice to the defendants: Dorado v Mener Group Pty Ltd [2021] WADC 1 [9].
The court ought to assist the litigant in person to the extent consistent with the interests of justice. That assistance will depend upon the nature of the case and the litigant's capacity to understand the issues but should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer and to prevent disruption from the traps which the adversarial proceedings offer to the wary and untutored: Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113; Googe v Spoljaric [2017] WADC 99. The court must not intervene to such an extent that a position of neutrality cannot be maintained or a litigant in person is given a positive advantage over another party: Googe v Spoljaric.
Mr Stewart called all the witnesses including nine of the 10 defendants.
Mr Stewart indicated that he intended to apply to have each witness associated with the Hospital declared hostile so that he could cross‑examine them and put leading questions to discredit the very witness he called to support his case.
Although the defendants opposed the application, I ruled that Mr Stewart was not required to declare each individual witness hostile. That is, that he could cross-examine any witness he called.
This ruling was made because the court procedure is for the sole purpose of securing a fair trial and to ensure the trial is conducted in a way which is fair to both parties: Stack v The State of Western Australia [2004] WASCA 300; (2004) 151 A Crim R 112.
The trial judge has a discretion to regulate the manner in which evidence is given so as to ensure the issues before the court are investigated not only fully but fairly: Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452.
The rule as to cross-examining a witness called by a party is not a rule dealing with the rights of a party, but a guide to judges to how they should in fairness conduct trials before them: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd [No 3] (1990) 20 NSWLR 15, 22 - 23.
Accordingly, a trial judge has a right in the exercise of his discretion to control the form in which questions may be put in examination‑in‑chief and in cross‑examination: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd [No 3]; Mooney v James [1949] VLR 22. It is in the discretion of the judge as to how far he will allow examination‑in‑chief of a witness to be by leading questions: R v Murphy (1837) 8 C & P 297; 173 ER 502 [306]. That discretion can be exercised in favour of allowing some questions which would normally only be permitted by way of cross‑examination: Gordon v Carroll (1975) 27 FLR 129, 135 - 136.
The statutory provisions of the Evidence Act 1906 (WA) do not impinge on the common law discretion to allow leading questions in the course of examination‑in‑chief.
Difficulties arose in the way that Mr Stewart presented his case in that he continually made comments rather than asking questions, or his questions were framed in such a way that they contained various comments about the evidence. Notwithstanding numerous instructions not to make comments, this persisted throughout the 31 days of the trial. Despite repeated requests not to ask compound questions, most of Mr Stewart's questions were compound questions and, as he was advised, it was sometimes difficulty to say which part of the compound question was being answered. Experience shows that this difficulty is not confined to self-represented litigants.
Another difficulty was that the claims dealt with in the body of Mr Stewart's ASOC did not always match the claims he summarises against each defendant on page 19 of his ASOC and Mr Stewart's closing submissions did not always address the claims raised. This difficulty is not confined to self‑represented litigants.

Claim 1 - Fraudulent concealment of the falsified medical records (ASOC pars 6 - 7)

This claim seems to have several components.
The first component relates to Mr Stewart's application under the FOI Act for his medical records (exhibit 40 (the notes)) and information relating to his complaints. Mr Stewart received those notes in two tranches. The first tranche provided redacted medical notes up to and including 24 September. Mr Stewart immediately complained and following numerous emails he received an apology, and the second tranche of the notes from 25 September onwards but again they were redacted.
Mr Stewart pleads that during pre-discovery the tenth defendant from 2014 and continues to fraudulently conceal the names and particulars in the plaintiff's medical records and their lawyers still refuse to give names when asked during pre-discovery again hindering this amended statement of claim (ASOC par 6).
This component does not disclose a cause of action. Mr Stewart had a copy of both the redacted and unredacted notes at the trial. The names and particulars have not continued to be concealed. Interlocutory applications were made for further information and subpoenas issued.
The second component seems to be a claim that defendants fraudulently concealed names and particulars in the notes. This claim, as I understand it, relates to the redaction of the medical notes and issues surrounding Mr Stewart's efforts to obtain those notes.
Fraudulently is interchangeable with dishonesty. To act fraudulently a defendant must intentionally create a situation whereby Mr Stewart's lawful rights, interest or opportunities were prejudicially affected knowing that they had no right to prejudice his interests: Peters v The Queen (1998) 192 CLR 493.
In determining whether the defendants' conduct in redacting the notes was fraudulent, it is necessary to identify the knowledge and belief that is said to be dishonest and ask whether the defendants had that knowledge, intent or belief and whether the acts that they performed were dishonest according to the standards of ordinary, honest people: Peters v The Queen; Macleod v The Queen (2003) 140 A Crim R 343.
Mr Stewart pleads fraudulent conduct essentially to either disadvantage him in any complaint or proceedings in relation to his hospitalisation or as retaliation in response to his complaints about the Hospital, its staff, his threats to go to the police and media, sue the Hospital and/or to cover‑up the assault and deliberate misdiagnosis.
Where matters of fraud are alleged the required standard remains that the plaintiff must prove his case on the balance of probabilities. The principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 apply.
Mr Stewart has the complete unredacted notes and used them during the trial. He has not established any damages specifically referrable to the delay in obtaining the information that had previously been redacted and which he says should have been provided to him under his FOI application. That would be sufficient basis to dismiss that claim. However, in light of the prominence given to the allegation by Mr Stewart and because the issue overlaps with other claims my findings are as follows.
Mr Stewart made numerous requests/demands to various persons for information relating to his complaints and access to his medical notes (exhibit 90 and exhibit 106, email 6 March 2014). He was advised by the then Minister that Ms Cullen was his point of contact (exhibit 101). Mr Heslop's email of 17 March 2014 (exhibit 53 A307) stating that it was agreed that Mr Stewart's application for FOI access would not progress at this time is dealt with in detail under claim 8. Mr Stewart was asked to desist from harassing and intimidating Ms Delahunty in respect of the application (exhibit 89, 14 April 2014). Ultimately Mr Stewart formally applied under the FOI Act for his medical record and the file relating to his complaints.
It appears two separate applications were made (exhibit 136 and exhibit 140). There was some delay caused by Mr Stewart not providing the information required to process the applications (exhibit 136, 10 March 2014 and exhibit 137, 17 April 2014) and querying various matters including the fee and the reasons why he was required to provide information (exhibit 65, file note 12 March 2014; exhibit 138, email 29 July 2014; exhibit 139, email 30 July 2014).
In respect of any applications made under the FOI Act a decision‑maker was appointed. Ms Penwill, the manager of Integrity & Ethics for the tenth defendant, was the decision-maker in relation to the first tranche of material released and was responsible for the redactions.
Ms Penwill obtained advice from the department's legal section because she said she had to be careful and was aware that the Hospital was the subject of some complaints.
Ms Penwill's decision was made on 27 August 2014. At that time Ms Penwill thought all the medical notes had been provided to her. She obtained Mr Stewart's current address (exhibit 141, email 26 August 2014) and advised him of her decision by letter (exhibit 122) which was sent by registered Express Post (exhibit 142) and then went on leave. Mr Stewart was advised of his appeal avenues and the reasons for the redactions. When Ms Penwill returned from leave, she was advised that due to an administrative error the notes from 25 September onwards had not been provided to her.
Ms Penwill's evidence was that it was her decision alone as to which information was redacted and she was not given any direction or influenced in her decision by any person, specifically no one from the Hospital provided any direction or orders on what was to be redacted.
Mr Stewart advised the Minister for Health and Ms Cullen by email of 3 September 2014 (exhibit 143) and 9 September 2014 that not all the notes had been provided to him and asked why the notes were blanked out (exhibits 69, 70). The Hospital acknowledged that a mistake had been made (exhibit 81, 3 September 2014; exhibit 86, 9 September 2014).

Ms Penwill's manager, Ms Saunders, appears to have provided the second tranche of notes which were redacted by her to Mr Stewart with an apology by registered mail on 10 September 2014 (exhibits 123, 144). Mr Stewart was advised of his appeal avenues however the only explanation relating to the documents Ms Saunders had redacted was that the information provided in Ms Penwill's original letter of 27 August 2014 still applied.

A large amount of material provided to Mr Stewart was redacted (exhibits 40 A239a, A241a, A243a, A266a, A267a, A270a, A271a, A278a, A286a, A292a, A293a, A295a, A296Aa, A297a) including, but not limited to:
•the names of the doctors who saw Mr Stewart; notes revealing he was feeling anxious and was concerned about the thyroid problems; the history he gave; that medications were not calming his anxiety; the need for clinical psychology input (exhibit 40 A239a);
•the name of the doctor who saw Mr Stewart on 19 September; the name of the nurse who escorted him to the ED; the consultant psychiatrist who was called prior to Mr Stewart being put on a Form 1; the fact that police were requested to bring him back to the ED (exhibit 40 A241a);
•the fact that the nurse who made the note indicated that Mr Stewart had put medication under his tongue; the fact that there was an error made in the notes; the name of the nurse making the note; that the medical director had advised staff that Mr Stewart was complaining that he was assaulted on the ward and that the medical director wanted the treating team to be advised that Mr Stewart wanted to report the matter to the police (exhibit 40 A243a);
•the name of Mr Stewart's friend; and the name of other doctors and nurses referred to in the notes of 24 September including the identity of the notetaker (exhibit 40 A266a);
•details as to Mr Stewart's wife, children and mother-in-law's location; name of his friend and the identity of the notetakers (exhibit 40 A267a); the identity of the notetaker and doctors and staff who saw Mr Stewart on 25 September (exhibit 40 A270a);
•details of limits being placed on Mr Stewart's contact with his wife and the identity of the notetaker (exhibit 40 A271a);
•the identity of a notetaker of 26 September; the note in its entirety of 26 September indicating that hospital staff had spoken to Mr Stewart's friend which revealed that the address the Hospital had is an address that Mr Stewart always stays at, that his friend planned to allow him to stay at their home when he is discharged, that his friend had stated that Mr Stewart is normally very pleasant and friendly; the identity of the notetaker for 26, 27 and 28 September which notes say that Mr Stewart appeared settled (exhibits 40 A278a, A286a);
•the identity of a 27 September notetaker; details of the visit by Mr Stewart's friends who wanted to meet with the team and discuss how Mr Stewart generally presents and their concerns that whilst he was in hospital he was not able to make money to support his family and that his elevated mood was normal and that Mr Stewart was always like a dynamo and details of Mr Stewart's rude and derogatory remarks about a nurse's size and the identity of the 28 September notetaker (exhibit 40 A286a);
•the identity of the notetaker indicating Mr Stewart was settled and pleasant and there were no management difficulties on 1 October; the identity of the notetaker who noted that Mr Stewart was settled and took his medication on 1 October; the identity of notetakers of 2 October; the identity of the doctors who discharged Mr Stewart and the medication prescribed (exhibits 40 A292a, A293a);
•the identity of the friend into whose care Mr Stewart was discharged; Ms Delahunty's notification of his discharge and the identity of the notetaker (exhibit 40 A293a);
•all the notes of 6 March 2014 indicating that a ministerial request had been received, that Mr Heslop had made a phone call to Mental Health Emergency Response Liaison (MHERL); notes relating to Mr Heslop's conclusion that Mr Stewart's health had deteriorated and that he had lodged a welfare check with the police; notes of the phone call received by Mr Heslop on 7 March from Mr Stewart, and Mr Heslop's mental state impression of Mr Stewart; the notes that Mr Heslop had been in contact with the Northern Territory CAT and Northern Territory police (exhibits 40 A295a, A296a, A297a).
Ms Penwill had no clear recollection of why she redacted the material other than stating she had considered the criteria under the FOI Act and made her assessment. Ms Penwill denied that she was part of a conspiracy or was acting to protect hospital staff or conceal information from Mr Stewart or was part of a cover‑up and said her decisions were made solely on the criteria of the FOI Act.
Ms Penwill gave her evidence frankly and forthrightly and I accept her as an honest, truthful, accurate and reliable witness. Ms Sandwell who appears to have made the redactions for the second tranche did not give evidence.
The FOI Act allows for non-disclosure of information on the basis of:
•commercial and ministerial confidentiality (neither apply in this case);
•pursuant to s 28 if a document contains information of a medical or psychiatric nature and the principal officer of the agency is of the opinion that disclosure of the information may have a substantial adverse effect on the physical or mental health of the applicant. It is sufficient compliance with the Act if access to the document is given to a suitably qualified person nominated in writing by the applicant. The agency may withhold access until a person who is, in their opinion, suitably qualified is nominated. A suitably qualified person under Freedom of Information Regulations 1993 (WA) is a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession; and
•if its disclosure could reasonably be expected to endanger the life or physical safety of any person: cl 5(1)(e) sch 1 FOI Act.
Ms Penwill's concerns appeared to be centred primarily on the release of personal information that could lead to the identity of third parties or could reasonably be expected to endanger the life or physical safety of Hospital staff. The redactions appear to have been made on the basis that it was personal information under cl 3 sch 1 FOI Act and thereby exempt from disclosure. Material is not exempt material merely because its disclosure would reveal the person's name, their qualifications, position or functions, or things done by the person in the course of performing or purported performance of their functions as an officer: cl 3(3) FOI Act, reg 9.
I agree with Mr Stewart's submission that much of the redacted material was important to his case including, but not limited to, material about the Hospital's conduct including that the Hospital had called the police to do a welfare check on him on 6 March 2014, had notified the Northern Territory CAT and police on 16 March 2014 about him and had sent a discharge summary to Northern Territory CAT (exhibits 40 A295a, A296a, A297a). Dr Williamson's messages to advise the treating team that Mr Stewart wanted the police informed about the assault, the notes of his medical review of 19 September by Dr Wells and Dr Barnes (exhibit 40 A239a), details of the request for the police to return Mr Stewart to the Hospital (exhibit 40 A241a) and the information about the restriction on his phone calls (exhibit 40 A271a) fall into a similar category.
I find there were errors in the freedom of information redactions. Most, if not all, the redacted material should not have been redacted. It was not exempt material. In addition, the redactions were inconsistently done - some notetaker's identity was redacted, others were not.

The fact that I have found some material ought not to have been redacted does not establish fraud (or negligence) on behalf of Ms Penwill or Ms Saunders or the tenth defendant.
I am satisfied that in discharging her duties, Ms Penwill considered the provisions of the FOI Act and was doing her best to understood the provision of that Act and she was acting in good faith for the purposes of giving effect to the FOI Act. I find that she was acting in accordance with her understanding of the FOI Act.
I am not satisfied that in the exercise of her duties Ms Penwill was acting fraudulently or that any of the defendants instructed her to perform her duties inappropriately. In respect of both the first and second tranches, Mr Stewart was advised of his right to an internal review or an independent review by the Freedom of Information Commissioner. Mr Stewart was advised that the decision could be upheld or overturned and all or any part of the redacted material could be ordered to be provided. His attention was drawn to the provisions of the FOI Act relied upon in making the decision. Mr Stewart was also encouraged by the tenth defendant's Chief Executive to seek advice from a community legal centre if he was having difficulty understanding the FOI Act and provided with the names of those services (exhibit 89, 14 April 2014). Mr Stewart's response was not to appeal because he said he knew he could get the information by issuing the appropriate subpoena (ts 786).
Mr Stewart has failed to satisfy me that I should draw the inference that Ms Saunders or any others involved in the redacting acted fraudulently in relation to the second tranche of documents released and the redactions made. I am being asked to draw that inference from the combined weight of the redactions and the other evidence relating to the defendant's overall conduct. I do not draw that inference.
I find that neither Ms Penwill, Ms Saunders nor any others involved in the redactions or the tenth defendant via its employees was acting fraudulently in relation to the FOI application.
Mr Stewart does not base a claim in negligence over the FOI application. Leaving aside the issue of whether negligence would have been established considering the protection against civil liability provided by s 106 FOI, such a claim would fail because Mr Stewart has not shown any damages specifically referrable to the delay in obtaining the information that should have been provided to him under his FOI application.
The third component of Mr Stewart's claim 1 is that the tenth defendant had a duty to provide the plaintiff with a true, unaltered and complete copy of all treatment records for any treatment or service rendered, corrections or changes to entries may be done only where the change is clearly identified as such, dated and initialled by the person making the change (ASOC par 6).
This aspect discloses no cause of action. The unredacted records have been provided via discovery and interlocutory applications. It is preferable that when changes are made the changes are dated and initialled, but there is no legal requirement for such.
In the fourth component of claim 1 Mr Stewart says in essence that the tenth defendant had a legal obligation to disclose material evidence in connection with existing or pending litigation, and he could not reasonably have obtained access to the evidence from another source, and that the defendant intentionally withheld, altered or destroyed the evidence, and blanked out with a purpose to disrupt the litigation and that Mr Stewart was damaged by having to rely on an evidential record that did not contain the evidence the tenth defendant concealed to hinder the statement of claim articulation (ASOC par 6). This component is expanded albeit in a slightly different form in ASOC par 7 where it is pleaded that the tenth defendant intentionally concealed and suppressed a material fact they were under a duty to disclose and intentionally concealed and suppressed the fact with the intent to defraud the plaintiff, that the plaintiff is unaware of the fact and would not have acted as he did if he had known of the concealed and suppressed fact and as a result of the concealment and suppression of the facts, the plaintiff must have sustained damage (ASOC par 7).
In relation to the allegation that the defendant withheld or destroyed the evidence no particulars are given as to what was withheld or destroyed. Mr Stewart has not satisfied me that any evidence was altered or destroyed intentionally or otherwise.
In relation to evidence being withheld and blanked out consistent with the way the trial was conducted that can only relate to exhibit 40. Mr Stewart pleads that the purpose was to disrupt the litigation and that he was damaged by having to rely on an evidential record that did not contain the evidence the tenth defendant concealed to hinder the statement of claim articulation.
This discloses no cause of action. All the information that Mr Stewart says was withheld and blanked out whether intentional or otherwise was available and used by him at the trial. In any event there has been no damage proven by Mr Stewart that relate to that material.

In relation to the slightly different claim that the defendants intentionally concealed and suppressed a material fact no particulars are given. It can only relate to facts Mr Stewart says he was not aware of prior to receiving unredacted copies of the notes. He was however aware of those facts at and before the trial. Mr Stewart has not produced any evidence of expense or damage or loss as a result of delays in receiving the unredacted material.
Nor am I satisfied that any of the defendants had an intent to defraud. An intent to defraud is an intent to cause or induce loss, detriment or prejudice in relation to the lawful right, interest, opportunity or advantage of Mr Stewart that has some potential or actual value. I am being asked to draw that inference from the individual acts of each defendant and the combined weight of all of the defendant's overall conduct. I would not draw that inference.
In any event Mr Stewart has not satisfied me that he would have acted any differently if he had known earlier of the facts that he says were concealed. His evidence was that although he knew he could appeal to the Freedom of Information Commissioner he decided to issue a subpoena for the information (ts 786). Nor has he satisfied me that he sustained any loss damage, economic or otherwise as a result of the so‑called concealment.
There is no merit in any aspect of Claim 1.

Claim 2 - Negligence/occupier's liability

Claim 2 of Mr Stewart's ASOC pars 8 - 16 includes a claim that Mimidi was a dangerous unsafe hospital premises (pars 9, 10). This raises common law negligence and occupier's liability in relation to the premises.
It is particularised in the ASOC (par 13) that the occupier of the Hospital automatically owed a duty of care to any person on the premises and reference is made to the extremely unsafe violent mental health lock up ward where the plaintiff was injured by an unsupervised extremely violent dangerous male patient whilst saving a 65-year-old woman's life from a brutal beating.
In essence Mr Stewart is saying the injury he sustained on 19 September when he restrained a male co-patient attacking Ms Skane was caused by the tenth defendant's breach of their common law duty to him as a patient and/or breach of its duties under the OLA in that the tenth defendant failed to supply a safe hospital ward.
The tenth defendant's duty at common law to Mr Stewart as a patient is no different to their duty to him as the occupier of the ward where he was a patient. The result would be the same under either claim and accordingly I only consider the occupier's liability aspect.
Mr Stewart says the breach was constituted by placing an extremely violent male patient amongst female patients and that the assailant should have been placed in another ward.
Mr Stewart says that it was foreseeable that placing a known male violent offender in a ward with females would result in an attack on a female patient and that someone would intervene to stop that attack and be injured in that attack (ts 4627 - ts 4629).
The starting point must be to examine the circumstances surrounding the assault on Ms Skane.

The Skane assault

Mr Stewart's evidence was that on the evening of 19 September he went to the TV room in Mimidi at about 8 o'clock and was talking to a patient, Ms Skane, while watching TV.
A short stocky Irish guy (the assailant, Mr Irving) came into the TV room whilst Mr Stewart was showing Ms Skane how to use the remote control. The assailant yelled and then lunged forward and started punching Ms Skane to the head. The assailant delivered three full power punches to Ms Skane. Mr Stewart immediately positioned himself between them and was eventually able to grab the assailant from behind in a bear hug and hung on to him. The assailant was screaming, struggling and going crazy. Mr Stewart hung on to him for about two to three minutes and eventually they both fell to the floor.
Mr Stewart landed on his shoulder with the assailant directly on top. Mr Stewart said he was in agony and his shoulder was painful. Mr Stewart put the assailant in a headlock. Another minute went past, and two security guards and one male nurse turned up and grabbed the assailant and restrained him on the floor. Exhibit 108 is a diagram of where the incident occurred.
Mr Stewart attended Ms Skane who was crying and in shock. Ms Skane had blood all around her face, but he noticed that she was not seriously injured.
Ms Skane gave evidence. An application was made by her representative (she is subject to a guardianship order) to set aside her witness subpoena. Upon that application evidence was given from Ms Hart, a consultant psychiatrist employed by the tenth defendant. Dr Hart's report of 19 April 2021 and her evidence of 10 May 2021 was that Ms Skane was a 73-year-old woman with a longstanding diagnosis of severe schizoaffective disorder who had been treated within the mental health system for many years. Ms Skane had undergone depo medication, oral medication and ECT and remained chronically unwell with psychotic symptoms. Ms Skane had previously been admitted to the psychogeriatric ward at Fremantle Hospital for a period of 11 months and was currently residing in a nursing home where she required care and had been under the care of the Fremantle Older Adult Mental Health Service since August 2020.
Ms Skane was considered stable but had ongoing psychiatric symptoms of irritability, grandiosity, delusions, was hearing voices and seeing people who were not there and had a permanent lack of insight, judgment, and decision-making capacity.
Dr Hart's evidence was that Ms Skane would not be able to understand the effect of the oath or the affirmation, nor would she be able to give an intelligible account of events she experienced. Dr Hart stated that Ms Skane would not understand the questions being asked of her nor understand the requirement to answer those questions or that those questions were being asked in a trial nor would she know that she must tell the truth or know the difference between telling the truth and lying.
In the circumstances where an employee of one of the defendants was saying that Ms Skane, a witness the plaintiff wished to call, was not capable of giving evidence, I deemed that it was appropriate Ms Skane be declared a special witness, that she have a support person present and I made the inquiry as to whether she was capable of giving evidence. I also allowed her to be represented at that inquiry.
Accordingly, on 14 May 2021 via a video link Ms Skane was called to give evidence. Her daughter-in-law was her support person and Mr Devlin represented her. Notwithstanding that Ms Skane said she did not lie and told the truth and obeys the Ten Commandments it was clear that she was not able to understand that she was giving evidence in court or the effect of the oath or affirmation.
Ms Skane said she thought she was going to her new home with a cook and two housekeepers. However, she said she did recall an incident where she was punched.
Whilst I was not satisfied that Ms Skane understood the oath or affirmation it appeared that she may be able to give an intelligible account about the assault and accordingly I permitted her evidence be given without the sanction of an oath or affirmation.
Ms Skane's evidence included that her late husband was present in spirit form, that she had been dragged past her neighbours, thrown into the back of a van and thrown into a Chinese prison. She said her son had approached the Chinese President and told him how she had been abused.
Ms Skane said she had been nearly killed when she was talking to a young man about the TV and he whacked her over the head four times, and they gave him a tablet. When asked again if she remembered being attacked by a male and injured in 2013 at Rockingham Hospital, she replied she was 'thrown straight into the back of a van and sped off to a Chinese hospital' (ts 1990).
Ms Skane repeated that a gentleman was showing her how to use the TV and all of a sudden this character came in and whacked her four times over the head and the gentleman put himself up as a shield and if it was not for him 'I don't know where I would be today'. She said they took her to the x-ray department to check her out and said she could go home two days later.
Ms Skane said she did not recognise the man that saved her from the beating and had last seen him on a stretcher. When asked if anyone had told her that the man who had acted as a shield from the attacker had tried to contact her Ms Skane said that when she came back from the shops, they charged in and handcuffed her.
Ms Skane said she was dreaming about the 50s, the good old days and that she had written eight books which will be published soon.
There are obvious difficulties with Ms Skane's evidence due to her mental health which casts doubt on the accuracy and reliability of her evidence. I found her an honest witness. Her evidence is sufficiently supported by the evidence of Mr Elvey and Mr Stewart and hospital records that I am able to reach a conclusion as to what occurred during the assault.
Mr Elvey gave evidence. Mr Elvey currently works in computer science. His memory of the incident was a bit blurry because it was a while ago and whilst he said the incident occurred on 13 September, I am satisfied he was describing the Skane assault which occurred on 19 September.
Mr Elvey had been an inpatient of Mimidi for approximately two weeks before the incident due to schizophrenia. He said in the mid‑afternoon he was sitting at a table in the lounge area and Ms Skane was watching TV.
An unknown man hit her three times suddenly and quickly. He saw the arms of the assailant move and Ms Skane's body respond. He had, as I understood it, a side-on view and said that the blows landed on Ms Skane.
Mr Elvey said Mr Stewart walked or probably ran, but in any event moved very quickly to where the incident occurred and used his martial arts skills to restrain the assailant by getting him in a head/body lock and restrained him until security arrived.
Mr Elvey said Mr Stewart was not aggressive nor abusive before, during, or after the incident.
Mr Elvey said he was never asked by anyone in authority about what he had seen, and he later asked if there was camera footage and was told that there was not. He wrote a note the next day and gave it to Mr Stewart. He said he did not know that he had covered everything in the note. Mr Elvey accepted 'to a level' that the note (exhibit 113) which makes no reference to him seeing Ms Skane struck, is more likely to be accurate than his evidence eight years later (ts 1329).
He said that it is possible 'to an extent' that he had been influenced by what others had said but said most of his evidence was uninfluenced (ts 1329). He said that most of his time at Mimidi was a blur but he did remember the guards laughing because it made him angry and it felt like they were treating him in a subhuman way.
Exhibit 78 is the emergency preparedness incident report on Ms Skane which indicates that she was punched three times by a co‑patient causing lacerations to her lip, forehead and back of ears. The report relating to Mr Stewart and the assailant, Mr Irving, support the general effect of the evidence of Mr Stewart, Ms Skane and Mr Elvey.
The Council of Official Visitors documentation (exhibit 79) refers to Ms Skane being assaulted by another patient, suffering bruising to her hand and ear and refers to Ms Skane advising the official visitor on 23 September that the patient that assaulted her was back on the ward, and she was locking her bedroom door for safety.
Exhibit 45 indicates that a code black was called as a result of the incident at approximately 20.36.
I am satisfied by the totality of the evidence from Mr Stewart, Mr Elvey and Ms Skane, and find as a fact, that the incident occurred when the assailant, without provocation, punched Ms Skane three or four times to the head and Mr Stewart intervened, restrained the assailant and in the ensuing struggle they both fell to the floor and Mr Stewart suffered an injury to his shoulder.

The nature and extent of the injury

Mr Stewart was examined by Dr Bola at approximately 9.30 the evening of the incident. Dr Bola noted that Mr Stewart had good range of movement and could abduct and extend 90%. The doctor said that Mr Stewart was complaining of mild to moderate pain to the shoulder (ts 1664) and he arranged for an x-ray to be performed. He said Mr Stewart was agitated and distressed and told him that the staff were trying to cover-up the incident, that he was being victimised and blamed the staff for his injury (ts 1665). That led to Dr Bolas' note (exhibits 40 A240 and A241) that Mr Stewart was projecting paranoia.
The x-rays revealed no fracture.
Exhibit 119, the ED triage assessment at 2140 on 19 September, shows that Mr Stewart was complaining of pain and decreased range of movements to his shoulder. Redness and tenderness to the right clavicle area were noted and a decreased range of movements observed, but when Mr Stewart was not being examined, the author noted he had good range of movement and could abduct and extend 90%.
Mr Stewart's evidence was that on 22 September he was stretching and practising his martial arts like he normally did (ts 733) and after he was discharged from hospital he had no difficulty obtaining work with Kailis for two weeks, then went to Darwin and obtained further employment.
Ms Delahunty saw Mr Stewart on 25 September 2013 and described major or extensive purple and yellow bruising to Mr Stewart's right shoulder, and down the side of his back (ts 4002). The notes show that on 25 September Mr Stewart requested Panadol for his shoulder and on 27 September he was complaining that it was still sore although a normal range of movements was observed. On 1 October it was noted that his shoulder was improving but some issues remain, and he wanted to apply for a job and said he was likely to get it and start immediately.
I find as a fact that Mr Stewart sustained an injury in the Skane assault, being tenderness and bruising to his shoulder, the bruising still being evident on 25 September. He suffered short-term pain and suffering and no broken bones. I am not satisfied he suffered any permanent injury or disability.
I am not satisfied that the shoulder injury restricted Mr Stewart's working ability in light of his evidence that when he was released from hospital within two weeks he was working as a welder and subsequently obtained employment as a welder in the Northern Territory.

Evidence of other violent behaviour at Mimidi Park

Mr Stewart, who was at the ward from 19 September until 2 October, refers to seeing and being involved in one assault being the Skane assault.

In evidence Mr Goodluck said Mr Stewart had high moral standards for truth and that he did not know him to be a liar.
Mr Goodluck first saw Mr Stewart on 29 March 2014, that is, some six months after he was declared an involuntary patient and at the time he prepared his report did not have access to the notes of the psychiatrists and other doctors who treated him at the Hospital. Mr Goodluck did not receive those notes until September 2014 (exhibit 115) and he said those notes did not cause him to change his conclusion. When he received the notes he realised that the Hospital had sent a letter to the Darwin medical authorities which referred to Mr Stewart having a possible relapse of his affective disorder.
Mr Goodluck said that Mr Stewart's presentation was unique, so he did a thorough job 'to get to the nut of what was happening'. Mr Goodluck said the only thing that was not normal about Mr Stewart was his intense need to prove that he was normal.
Mr Goodluck said that when he saw Mr Stewart he had an elevated mood over the situation with a medical practitioner in the Northern Territory.
Mr Goodluck said that Mr Stewart did have elements of pressured speech however when this was drawn to his attention he was able to adjust his pace and intensity and Mr Goodluck said this was consistent with somebody trying to give a lot of information in a relatively short time.
Mr Goodluck said Mr Stewart had a degree of physicality about him as by nature he was involved in physical work and martial arts and that involved motor agitation. He said that on presentation Mr Stewart's psychomotor agitation, pressured speech and grandiosity could be misconstrued if they were taken out of context.
Mr Goodluck said that in his experience people often rely on previous case notes in reaching their own conclusion.
He said psychiatrists can be thorough in a short period of time if they are focused, but if they were using the tick and flick approach they could come to the wrong conclusion. In relation to the DMS criteria, Mr Goodluck's evidence was he could not say exactly what happened and he surmised that there had been a bit of a knee-jerk reaction and the doctors did not look too deeply at the other axis of the DMS criteria which included Mr Stewart's social situation (ts 2119).
Mr Goodluck said it was understandable at first glance that people would go to the DMS-V diagnosis of mania but to look thoroughly, not all of the DMS-V criteria were established (ts 2142 - ts 2143) as in his opinion, Mr Stewart's responses were not inappropriate for the situational crisis when he was admitted to Hospital.
The DMS-V criteria diagnosis required in addition to irritability four other specified criteria. Mr Goodluck's evidence implied that the Rockingham doctors thought the criteria was met because they found Mr Stewart suffered from irritability, elevated self-esteem or grandiosity, was more talkative than usual or had pressure to keep talking, flight of ideas and distractibility. He did not consider Mr Stewart exhibited any of the last four criteria.
Mr Goodluck said he did not know how thorough the assessments were because Mr Stewart's account was that the doctors walked past and looked at him through the glass and came to an opinion (ts 2170). I do not accept Mr Stewart's account that the doctors simply walked past and looked at him through the glass. It is contrary to the evidence of all of the doctors who say that they consulted with Mr Stewart for various lengths of time.
Mr Goodluck said a person who suffered a manic episode may or may not have a good memory of events depending on what else was going on.
Mr Goodluck said hypomania was not always obvious because people could present as well. Mr Goodluck said a manic episode is worse than hypomania which is a lower form of mania. Mr Goodluck described mania as a psychotic break from reality. He said a manic episode is more easily identifiable than hypomania which is not as easy to diagnose (ts 2139).
Mr Goodluck concluded that Mr Stewart did not show any signs of grandiosity because he produced evidence that he was an inventor, that he had worked for the King of Tonga, and had produced barges for people in Africa. He said that Mr Stewart's references to dealing with a two-billion company, helping poor people, his martial arts code being similar to a samurai warrior and his martial arts experience being such that he could still 'kick arse', were not examples of grandiosity when considered in their context.
Mr Goodluck said that if the person put all of his achievements in a folder and took them to the hospital he could understand why that would be called grandiose, but Mr Stewart's had gained insight from previous experiences of the need to prove himself to mental health professionals and therefore it was not grandiose.
Talking to the medical staff about his inventions when asked his name and what he was doing could be consistent with grandiosity and would seem strange but in context was appropriate because Mr Stewart was trying to get his point across.
He said Mr Stewart had shown material that supported his claims or spoke to the context of his claims. He concluded that Mr Stewart's claims were not grandiose based on his behaviour when clinically interviewed, the various assessments and the testing.
Mr Goodluck said the truth of Mr Stewart's representations (working in Tonga, China and his inventions) was maybe 50% of the primary reasoning for saying he was not grandiose (ts 2165), the other factor being the testing.
Mr Goodluck was aware of links between cannabis and paranoia but did not think he was aware that Mr Stewart had been smoking cannabis before his admission.
Mr Goodluck denied that he was a barracker or an advocate for Mr Stewart.
Mr Goodluck said that the various information provided by Mr Stewart by way of photographs and the like enabled him to set aside and neutralise the prior assumptions made about Mr Stewart by others.
Mr Goodluck said that even if Mr Stewart admitted lying in the New Zealand drug case whilst that would be a scurrilous tactic it would not lead him to overturn his assessment that Mr Stewart was an accurate historian.
I reject Mr Goodluck's conclusion that at the time Mr Stewart was declared an involuntary patient he did not have a mental illness for the following reasons:
1.Mr Goodluck is not a medical practitioner.
2.Mr Goodluck first saw Mr Stewart six months after he was discharged from the Hospital.
3.Mr Goodluck's report was based on his clinical interviews and observations and test results made long after the manic episode had been treated and resolved.
4.At the time he reached his conclusions Mr Goodluck did not have access to the notes of the doctors and psychiatrists who saw or diagnosed Mr Stewart (Dr Wells, Dr Bola, Dr Barnes, Dr Mo, Dr Thomas, Dr Sekhom, Dr Vecchio and Dr Hottchkiss).
5.Mr Goodluck statement that 'a flippant or cursory appraisal of the man might have led some health professionals to the erroneous conclusion that he exhibits mania. However, thorough assessment process reveals that he does not in fact have mania …' was made without Mr Goodluck reviewing the notes of the doctors and psychiatrists who reached the conclusion that Mr Stewart exhibited mania and without considering the assessment process that they had undertaken.
6.Mr Goodluck's statement that Mr Stewart is quite credible, is an indication that Mr Goodluck may have crossed the line between an objective examiner and impartial expert and become an advocate for Mr Stewart.
7.As Mr Goodluck believed Mr Stewart to be truthful he may have been influenced in his conclusion that a 'tick and flick' approach was taken by some of the Rockingham doctors by Mr Stewart's statement, which I have rejected, that the doctors who assessed him simply walked past and looked at him through the glass.

8.Mr Goodluck's evidence is contradicted by the combined weight of the evidence of Dr Wells, Dr Bola, Dr Mo, Dr Thomas, Dr Sekhon, Dr Vecchio and Dr Hottchkiss.

When Mr Goodluck assessed Mr Stewart, he said that Mr Stewart was intense, had elements of pressured speech, elevated mood, psychomotor agitation and some features that could pass for grandiosity and distractibility if taken out of context. Mr Goodluck said it would be easy to conclude that Mr Stewart was a bit mad and on the far end of the 'normal curve' and it was understandable at first glance to go to the diagnosis that was made.
The effect of Mr Goodluck's evidence was that in their true context all of the factors referred to in the previous paragraph could be explained or interpreted in a manner that did not constitute mania. The context in which Mr Stewart saw Mr Goodluck in 2014 (for the purposes of establishing that he was not the subject of any mental illness), was quite different to the context in which the Rockingham doctors saw Mr Stewart in 2013. Clearly a number of features of Mr Stewart's behaviour and presentation required the doctors to exercise their professional skills in forming an opinion. The Rockingham doctors observed Mr Stewart's mental state at the time, Mr Goodluck did not. When Mr Stewart saw Mr Goodluck he had an interest in portraying that he did not have a mental illness.
At the end of the day where the evidence of Mr Goodluck clashes with the evidence of Dr Wells, Dr Bola, Dr Mo, Dr Thomas, Dr Vecchio and Dr Hottchkiss (I exclude Dr Barnes as she described her role as simply being a scribe) I prefer the evidence of the doctors. They are all medical practitioners experienced to varying degrees in the area of mental health.
I am conscious that all the doctors were at the time employed by the tenth defendant and they all face in various degrees serious allegations that would be professionally damaging if proven and this must be considered when assessing their credibility.
Where the same medical records are used by a number of doctors a mistake can easily be magnified. There are many examples littered through law where experienced experts including doctors have been in error in their evidence.
I am satisfied that individually each doctor was a witness of the truth and doing his best to assist the court and each of them was acting in a manner they considered to be in the best interests for Mr Stewart's welfare and in accordance with their professional responsibility. I accept their diagnosis and the reasons for it.
The combined weight of their experience and expertise means Mr Stewart has not satisfied me that it is more probable than not that the diagnosis that he had a mental illness was wrong.
Further Mr Stewart has failed to satisfy me that the acts, being the diagnosis made in relation to the Form 1 referral s 29 MHA and the Form 6 involuntary patient order s 43(2)(a) MHA, were at the time of those acts, acts that were not in accordance with the practice that was widely accepted by the doctors' peers as competent professional practice at the time of those acts.
I reject Mr Stewart's submission that the doctors were acting to cover‑up the Skane assault and/or to punish him or his wife inter alia for their conduct in complaining or threatening to sue, or go to the police or the Minister or the media.
The question is not whether I consider Mr Stewart had a mental illness at the time he was diagnosed. The issue is whether Mr Stewart has satisfied me that it is more probable than not that the diagnosis that he had a mental illness was wrong. Mr Stewart has not satisfied me that he was deliberately or negligently misdiagnosed with a mental illness. Accordingly the claims for false imprisonment, assault and battery, and fraudulently falsifying an involuntary order fall away and are dismissed.
If I am wrong in that conclusion, I turn to consider the question of damages.

Damages

Mr Stewart by his ASOC claims damages of $750,000.
Mr Stewart calculates his economic loss from November 2013 to November 2014 as $100,000. He says that during that 12 months he would have worked on a fly-in/fly-out basis and his income would have been such that he would have been left with $100,000 savings after his living expenses and taxes, and once he reached $100,000 in savings he would have gone to China to start manufacturing his product. He says that before he went to hospital, he was due to do a welding test that he would have passed and he would then have been able to work on a fly-in/fly-out basis. He says he could not do that test due to his shoulder injury. I do not accept Mr Stewart's evidence in this regard. There is no medical evidence that supports any incapacity to work due to the shoulder injury or for any reason and I find that there is no credible evidence that he was incapacitated for work as a result of the shoulder injury.
Mr Stewart has not proven that he had any incapacity to work. The evidence establishes that within two weeks of leaving the Hospital he was working at Kailis, he resigned from that job and went to Darwin and worked.

Mr Stewart is an experienced and talented boilermaker/welder. He works as and when he chooses, generally for short periods (exhibit 118). Sometimes he works as a boilermaker or welder, other times he concentrates on his inventions.
Exhibit 14, the Pentair payslips, show that Mr Stewart was earning net approximately $1,556 per week. Exhibit 18 shows that Mr Stewart was able to earn $3,304 net per week for one week of work at another company. Exhibit 107, an incomplete tax return, shows that Mr Stewart's net income was $64,469 or $1,239.80 per week. Taking the figures in exhibit 14, exhibit 18 and exhibit 107 an average weekly net income of $2,034 is obtained.
If the diagnosis was wrong and Mr Stewart did not have a mental illness, I find he would have been released from the Hospital two weeks earlier which would have been around about 19 September, and therefore he has lost the equivalent of two weeks wages calculated as net $4,068. Allowing interest on that loss at 3% per annum for eight years rounded up is $980. Past lost superannuation is $369 and interest on that loss at 3% per annum for eight years rounded up is $90 making a total for past economic loss of $5,507. No other economic loss is proven. I would also award $11,600.50 for Mr Goodluck's expenses (exhibit 17).

Mr Stewart says he needed the $100,000 he would have earned from twelve months work because he had a new design of the Myark wrench and needed six months to further develop the product then he would have filed his patent and gone to the market and sold the product. He said he would have sold millions of the product and made millions of dollars. He said he was not tricking or fooling himself. He would have sold millions and made millions.
In relation to his inventions there is no evidence to support Mr Stewart's claim of lost profit. Mr Stewart's implied submissions that he was making money from his inventions is contradicted by exhibit 109, the emails relating to Kickstart and exhibit 67, his email of 4 November 2013, and exhibit 66, his email of 13 March 2014, where he says that at the time of his kidnapping by the Hospital 'his finances were in the red'. There is no credible evidence that the Myark product or any of his other inventions made a profit. No income tax assessments or complete accounting records from any country have been produced. No complete income tax form for any financial year has been provided. Mr Stewart has not satisfied me of any past or future economic loss from any of his inventions.
In relation to general damages if Mr Stewart was fraudulently or negligently misdiagnosed with a mental illness it would mean that he was falsely imprisoned and deprived of his liberty and assaulted and battered effectively from 19 September to 2 October. During that time he was confined to a hospital, was forcefully injected with drugs on two occasions and took other medication under the threat of forceful injections. In addition he was subject to invasive treatment and personal questioning over a 13 day period, and deprived of his right to communicate with his wife as and when he wished for three of those days. It would have been a protracted, humiliating, and degrading experience and a more frightening and harrowing experience would be difficult to imagine. However, in light of my findings on Mr Stewart's credibility and my rejection of his claims it is not appropriate to make a provisional assessment of general damages and I decline to do so.
For the reasons expressed I dismiss all of Mr Stewart's claims.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
13 OCTOBER 2021