ISSA v State of NSW [2002] NSWSC 989

New South Wales Supreme Court

CITATION : ISSA v State of NSW [2002] NSWSC 989 revised - 25/10/2002 FILE NUMBER(S) : SC 20213 of 1999 HEARING DATE(S) : 14/10/02, 15/10/02, 16/10/02 JUDGMENT DATE : 23 October 2002

PARTIES : Omar ISSA -v- STATE OF NEW SOUTH WALES JUDGMENT OF : Cripps AJ

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

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CRIPPS AJ

23 OCTOBER 2002

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

JUDGMENT 1 CRIPPS AJ: On 19 April 1999, Omar Issa (the plaintiff) commenced proceedings in the Supreme Court against the State of New South Wales (the first defendant) and the Department of Education (the second defendant) claiming damages for personal injuries said to be the result of an assault by a fellow student at the Birrong Boys' High School on 2 February 1994. On 17 August 1999, the plaintiff discontinued the proceedings against the second-named defendant. 2 The plaintiff was born on 2 August 1979. In February 1994 the plaintiff, then fourteen years and six months, was starting Year 9. He had been at Birrong Boys' High School since 1992. The person he claimed had assaulted him, Khaled Mehajer, was also in Year 9 as were two fellow students, Jamal Kanan and Scott Piipari, who both gave evidence in the plaintiff's case. 3 In February 1994 the student population of Birrong High School was approximately 750 students. There were about 50 teachers. 4 The plaintiff claimed that during the lunch hour on 2 February 1994, he was assaulted by Kahlid Mehayer causing a haemorrhage into his right fronto-parietal region secondary an anterio-venous malformation. 5 The essence of the plaintiff's claim against the defendant is that the staff at the school failed to supervise adequately or at all, the students in the recreation area during the lunchtime break, and as a consequence, the plaintiff was assaulted (and suffered an injury causing cerebral damage) in circumstances where had supervision been adequate, that would not have happened. 6 The plaintiff alleges that he was assaulted in the recreation area under the library. He said that he was punched around the head ten or fifteen times before being placed in a headlock when he was punched another ten to fifteen times. A history was given to some doctors that he was strangled although the plaintiff did not make that claim in his evidence.