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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 the plaintiff was out in the school grounds picking up rubbish before going into the first class session of the day. Apparently this was a normal school requirement each morning before classes commenced. During the rubbish parade a piece of stick was thrown by a classmate at another pupil but missed and instead hit the plaintiff’s right eye. She had problems with this eye after the incident and received treatment. She now has some limitation in the use of the eye and it is now assessed at 84 percent loss of the efficient use of her right eye.

Although the pupils were engaging in a required daily activity before class commenced there was no teacher 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 activity was a programmed school activity which therefore according to the guidelines to teachers required the supervision of a teacher and there was no teacher there and if a teacher had been present the incident may not have happened.

LIABILITY

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

The lawyer for the plaintiff has referred to a document called a Joint Circular/Instruction on the subject ‘Teachers Responsibility for 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 concluded that the teacher owed a duty of care as a servant of the State to ensure that the pupil was safe in the classroom. And because the teacher left the pupils unsupervised in the classroom he had breached the duty of care. I note the case of Tom v The State [1996] Unreported N1475 where Kapi DCJ said: “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 from these authorities that absence 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 at school. Whether or not 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 was not during a normal 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 activity. If there had been the proper supervision of such programmed activity then there would not have been any horseplay and the accident would not have happened. I am satisfied that the incident arose because 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 duty of the teacher.

DAMAGES

The plaintiff was aged 9 years at the time of the incident. She is now aged 16 years and is apparently now in Grade 8 at Malabunga High School. Some weeks after the incident she attended at the Butuwin Health Centre with eye problems. She then attended the Nonga Hospital in January 1991 where she was operated on for extra capsular lens extraction. She was assessed at having some permanent damage with 20 percent loss of visual acuity. More recently she attended a private medical clinic which assessed she has about 84 percent loss of the efficient use of her right eye which translates to a loss of about 42 percent of the efficient use of her eyes.

General damages for damage to vision has ranged around K35,000 for the loss of an eye such as in the case referred above namely Baduk’s case. For severely reduced ability in one eye there have been awards from K10,000 to K30,000. I will assess general damages here of K20,000.

The Plaintiff is also claiming economic loss. However the Plaintiff was not earning any income at the time of the accident being a pupil at school so there is no evidence to assist the court here. The Supreme Court discussed the problem of assessing economic loss for infant plaintiffs in the case Coady v MVIT [1987] PNGLR 55. The Judges separately considered the authorities on economic loss for infants and emphasised the principle that economic loss covers firstly loss of actual earnings, which of course can not apply here as the plaintiff was not in employment, and secondly the loss of earning capacity. In the latter the Court emphasised that there must be evidence to suggest that the chances of employment in the future have been affected by the injuries. In that case the Court found that in spite of the injuries there was no evidence that the chances of future employment were affected. I have to find here that there is no evidence before the court to suggest that the chances of employment are affected. To do so here would mean that the court must enter into the realm of speculation and this is not a function of the court. In the circumstances therefore this would be covered in the general damages. I cannot find any economic loss here.

I note special damages of K86.67.

To Summarise:

I Order judgement for the Plaintiff in the sum of K22,486.67.

The Defendant is to pay the Plaintiff’s costs.

Lawyer for the Plaintiff: S Tedor & Associates