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Tom by His Next Friend Tom Amori v Independent State of Papua New Guinea [1996] PGNC 39; N1475 (4 October 1996)

Unreported National Court Decisions

N1475

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 416 OF 1995
BETWEEN:
SIMON TOM by his next friend TOM AMORI - Plaintiff
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Defendant

Waigani

Kapi DCJ
4 June 1996
15 July 1996
4 October 1996

NEGLIGENCE - Duty of care by school - pupil injured by an unlawful act of a stranger on school premises.

Counsel:

P Mamando for the Plaintiff

P Mogish for the Defendant

4 October 1996

KAPI DCJ: The plaintiff hasght this this action by his next friend. He was aged about 9 and a grade one student at the Bavaroko Community School in the National Capital District in 1993. On 16 November 1993 he washe school. During theg the lunch hou , at about 12.15 pm, he went to the toilet situated on the school premises and was returniom the toilet when a young boy, a non-student who was outside the school premises asked ford for a twenty toea. The school has a sec fencefence and the plaintiff was inside the fence and the non-student was outside the fence. Taintiff did not give tent tenty toea as requested. The stranger picked up a sp a stone, threw it over the fence ence and hit the plaintiff above the right At ime this occurred therethere was no teacher arounaround at the place where this incident took place. The duty teacher was g lunch in the staff room.

The plaintiff suffered injuries to his right eye. H60; He has brouhis actionction for damagesinjuries received for negligence or breach of duty on the part of the State. The defe defendant has d lied liability.

The facts in relation to how the incident dent occurred were not challenged by counsel for the defendant. The ion I to determine is e is whether the State is liable for for damages. Counsel for the plaintiff has submitted that the Stateiable in the circumstances. He partily relied on threethree factors. The first irst is that the plaintiff was a grade oneent and therefore required close supervision. The sece second is that at the time of the incident there was no supervising teacher nhe plaintiff at the time. The third r was that that that there was no security guards employed by the school to patrol the premat the time. Counsel nsel relied on oca local cases, Rohrlach v Lutheran Church Prop. Trust [1985] PNGLR 185 and Colbert v PNG [1988-89] PNGLR 590. The former caseot very hely helpful in that it is an infant settlement and the question of liability was not an issue. The latter case deals wiab liability of employer to an employee and therefore not directly on point.

Counsel for the defendant referred to Baduk v PNG [1993] PNGLR 250 as setting out the relevant law. This ceals with the relevaelevant law relating to the duty of care that is owed by a teacher to a pupil at school. The facts of this were as e as follows. plaintiff he second defendafendant were both grade 4 pupilsupils at Waigani Community School. At the dire of the class tass teathey,ther with other pupils of the same class, went innt inside the classroom to have their lunc lunch as it was raining outside. Whin thssroom, the second cond defendant threw a sharp-pointeointed lead pencil at the plaintiff, who was seated at her desk. Theted e the pencil strucktruck her right eye, and she sustained severe injuries leading to loto loss of the eye. The Court concluhat tacheracher owed a duty of care, as servant of the State to ensure that the pupil was swas safe in the classroom. Further turt hhat the teac teacher left the pupils unsupervised and thus breached the duty of care.

The situation in the present cs different. The injury receivethe plai plaintiff was caused by a non-student while tile the plaintiff was coming back from the toilet. The injury cannot be autedbuted to the very fact of non supervision. It was caused byone who unho unlawfully threw a stone from outside the school premises. The relevant question tdete determined in these circumstances is whether the act oowing of the stone by the non-student was an act which coul could not be foreseen by the school and could not be prevented by the sch/p>

The nature of duty outy of care in similar circumstances was discussed in Rawsthorne v Ottley [1937] 3 All ER 902. In thse a tip-up lorry hady had delivered coke in a school playground, and was driving away when a number of boys jumped on to the re the lorry causing the tipping part to tip up. Another boy, thentiff, jum, jumped on d on to the lorry immediately behind the driver’s cab, and when the tipping part of the lorry was suddenly released it came down on the plaintiff and crushed his le60; The headmaster of the sthe school had left the boys to play in the playground and had returned into the school premises before the arrival of the lorry. Henot know of the arrival ival of the lorry. Hilbery J in dealing the rthe relevant principles said:

“I consider the case against the headmaster. Tty of care is that of a cf a careful parent. So be it0; In whatuggestedested that the headmaster committed a brea breach of that duty? It is said that the lorcams came to deliver cbut h no reason to anto anticipate that one might come that day. It is saat he would ould kuld know that the lorry which would come be tipping lorry, and therefore-in a phrase now establishelished in the law-an ‘allurement’ to boys. The headmasted he ot know know a tippingpping lorry would come, and I believe him. He further says that, if he had known it would come at plme, he would have stopped it, not because of any danger, but because it would interfere wite with games and proper recreation in the As to the allegation of permitting, it is said that that the headmaster allowed the boys to play without supervision when the lorry was there. Mr Mansell didsee it therethere; he had left the yard before it came, and, in my view, quite properly; he did not know the lorry was there...

As to control, what supervision or control ought a headmaster to have exercised over boys in the senior class in a playground in play time? He saw them to play; then then he went in. In my view, it is not the law, and never has been the law, that a schoolmaster should keep boys under supervision during every moment of their school live60; H regard to the fahe fact that the schoolmaster did not know that the lorry was there, I finI find that there is no negligence. s been said that he knew inew it might have come. I still do nonk that he shhe should have stayed, lest such a possibilityld have become the event. Should he stopped its comi coming during playtime? I 0; I do not think that ihat is lack of supion, and it would necessitassitate extra supervision. Apart from its beinipping ping lorry, to know that an ordinary lorry comes, an to prevent it during playtime, is not lack of supervision.sion...”

In Ricketts v Erith Borough Council and Another [194All ER 629 some 50 childrenldren were playing in the playground during the midday break. One ofboys aged 10 left thft the ground and went to a nearby shop and bought some blunted pieces of bamboo made up in a form of a bow and arrow. He returned to laygrand unnd unseen by the teachers he discharged the arro arrow in close proximity to the infant plaintiff and as a result injured ye. Tucker J concluded in the following words:

“The duty of the defendanendants is that of a reasonably careful parent, and I have come to the conclusion that they were not guilty of any failure to exercise that degree of care which may be expected from a reasonably careful parent. Incidentally, in consig thng the facts of a case like this, one has to visualise a parent with a very large family, because 50 children playing about in a yard is, of course, a different thing from four or five chi playing about together in r in a garden. That is perfectly trud it d it has to be remembered. None the less, I find it impossible to hold that it was incumbent to have a teacher, even tender as were the years of these children and bearing in mind tcalitthis school, cont continuously present in that yard throughout the whole of this break, and, and nothing short of that would suffice. Unless that is their dutyh nothing less is any good, because small children, or any child, can get up to mischief if the parents or teacher's back is turned for a short period of time. I think the evidence in this case shows that the system which prevailed at this school, and that the degree of supervision which was exercised, was in fact reasonably sufficient and adequate,ng regard to all the circumstances of the case.”

It is clear from the principles set out in these cases that the duty of care is that of a careful parent. It is also clear fhese aute authorities that absence of supervision of itself is not breach of duty of care because it is not expected that the teacher should observe each child every moment of his time at scho160; Whether or not there iere is breach of duty depends on the whole of the circumstances. In case the relevant factsfacts are these: (a) the whole school premises is secured by security fence; and (b) a duty teacher was provided to be around the school ds during lunch - the duty teacher was having lunch at the the time of the incident in the staff room.

The relevant question in this case is whether, the school could have anticipated that outsiders were likely to attack pupils in the school premises in the manner it occurred in this case? Had there been any pus atts attacks on pupils in the school premises or at the same spot? There was no evidence ledhby the plaintiff in this regard. The plaintiff has the onus of proving its case and d to prove these relevant mant matters.

Even if the duty teacher was in the school grounds and not in the staff room having lunch, not possible for the duty teacher to be close to every chiy child. Furthermore, it is not reasonable to expect the duty teacher to accompany every child to the toilet. I have reached the coion tion that in all the circumstances the duty teacher cout have prevented this unlawful act and I find that the defe defendant was not liable.

I dismiss the claim with costs.

Ls for the Plaintiff: Mamandamando Lawyers

Lawyers for the Defendant: Solicitor-General