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Tuba an infant by her next friend Helen Tuba v The State [1997] PGNC 40; N1581 (14 April 1997)

Unreported National Court Decisions

N1581

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 749 OF 1991
DOROTHY KESLEY TUBA AN INFANT BY HER NEXT FRIEND HELEN TUBA - PLAINTIFF
V
THE STATE

Kokopo

Woods J
24 February 1997
14 April 1997

NEGLIGENCE - duty of care by school - pupil injured by action of another pupil during a school programmed activity - lack of supervision.

DAMAGES - eye injury.

Cases Cited

Baduk v PNG [1993] PNGLR 250

Coady v MVIT [1987] PNGLR 55

Tom v The State (1996) Unreported N1475

Counsel

S Tedor for the plaintiff

14 April 1997

WOODS J: The Plaintiff has brought this action by her next friend her mother for damages for injuries she received when she was a pupil at Kabagap Community School Kokopo in 1990. On the 4th October 1990 tae plaintiff was out in the school grounds picking up rubbish before going into the first class session of the day. Apparethis normal school hool requirement each morning before classes commenced. During thng the rubbish e rade a piece of stick waswn by a classmate at another pupil but missed and instead hit the plaintiff’s right eght eye. ad problems with this fter fter the incident and received treatment. She now hasw has some limitation in the use of the eye and it is now assessed at 84 pt loss of the efficient use of her right eye.

Althoulthough the pupils were engaging in a required daily activity before classenced there was no teacher cher supervising them at the time.

The plaintiff is claiming damages on the basis of negligence in the teachers as employees of the State in the supervision and control of students at the school. The claim is that the act vity was a programmed school activity which therefore according to the guidelines to teachers required the supervision of a teaand there was no teacher there and if a teacher had been present the incident may not have have happened.

LIABILITY

The facts as to how the incident occurred are quite clear as stated above. The questiot I need to deto determine is whether the state is liable for damages.

The lawyer for the plaintiff has referred to a document called a Joint Circular/Intion on the subject ‘Teachers Responsibility for Stud Student Safety’ and in that document notes the requirement that headmasters should ensure that efficient supervision is provided of the conduct of pupils on the playground.

The law about the duty of care required within a school classroom during class periods and during regular school activities is quite clear and I refer to the case of Baduk v PNG [1993] PNGLR 250 where pupils were inside a classroom although not for a class period but during the lunch recess as it was raining outside and a pupil threw a sharp-pointed lead pencil at the plaintiff in that case who was seated at her desk and the plaintiff suffered severe injuries leading to the loss of the eye. The Court in that case coecluded that the teacher owed a duty of care as a servant of the State to ensure that the pupil was safe in the classroom. becaue teacher left the pupe pupils unsupervised in the classroom he had breached the duty duty of care. I note the case of Tome State [1996] Unreported N1475 where Kapi DCJ said: “It is clear from the principlesiples set out in these cases that the dutyare is that of a careful parent. It is also clear from these authorities that absencesence of supervision of itself is not a breach of the duty of care because it is not expected that the teacher should observe every child at every moment of their time atol. Whether or not thot there is breach of the duty depends on the whole of the circumstances.”

In this case before me now the plaintiff and other pupils were engaged in a normal school activity which clearly comes within the guidelines for appropriate supervision. This wa during a normal real recess period when it has been said that it is impossible to hold that a teacher has to be present and keep an eye on every child during the recess period in the school grounds. This was a programmed aty.vity. If there had been the r suer supervision of such programmed activity then there would not have been any horseplaythe accident would not have happened. I am satisfied that the incident arose because ause of the failure of the teacher to perform appropriate supervisory duties and therefore as an employee of the State I find that the State is liable for the dereliction of df the teacher.

DADAMAGES