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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO 223 OF 2020 (CC1) (IECMS)
BETWEEN
MICHELLE MIROKEI as next friend of infant BANI MIROKEI JUNIOR
Plaintiff
AND
MELANIE KAMBU
First Defendant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
WAIGANI: MAKAIL J
4 , 15 DECEMBER 2025
LIABILITY – Negligence – Occupiers liability – Duty of care – Teacher and student – Safe and secured learning environment – Injury to student – Injury sustained in classroom – Injury sustained from tripping and fall – Fracture of front incisor tooth – Child of 10 years – Higher duty of care – Wrongs (Miscellaneous Provisions) Act – Section 52
ASSESSMENT OF DAMAGES – Personal injury – Child of 10 years – Fracture of front incisor tooth – Permanent loss of front incisor tooth – Award of damages – General damages for pain and suffering – General damages for shame and humiliation Age disparity – Impact of self-esteem – Special damages for costs of medical (dental) treatment – Out of pocket expenses – Costs of tooth implant – Replacement tooth
Facts
This is a trial on liability and assessment of damages arising from a cause of action in negligence. The plaintiff Michelle Mirokei is the biological mother of the infant, Bani Mirokei who was injured at Taurama Primary School during a school day when the students were cleaning their classroom in the afternoon after classes. It is alleged that the first defendant, being the student’s class teacher, was absent on the day of the incident, leaving her students unsupervised and thus resulting in the injury of Bani Mirokei when he fell from a chair and injured his jaw on the concrete floor, resulting in the loss of his upper front tooth.
1. A duty of care exists between a teacher and student to provide a safe and secured learning environment to a student and in turn is the duty of the school: Melinda Baduk v The State & Ors [1993] PNGLR 250 referred to.
2. The law recognizes the duty of care to the children to be more onerous given the fact that children are prone or expected to fall out of line if they are unsupervised. The cause of action in this case falls under the broader heading of negligence, but peculiar to the facts here, comes under the description of occupier’s liability pursuant to Section 52 of the Wrongs (Miscellaneous Provisions) Act. Tom by his next friend Tom Amori v The State (1999) SC609 referred to.
3. Under general damages, a sum of K30,000.00 is awarded for pain and suffering. In addition, considering the age disparity of an infant and the impact on self-esteem, a sum of K40,000.00 is awarded for shame and humiliation.
4. Under special damages, a sum of K360.00 is awarded for costs of medical (dental) treatment, out of pocket expenses and a sum of K14,600.00 for costs of tooth implant to replace the missing upper front tooth.
Cases cited
Tom by his next friend Tom Amori v The State (1999) SC609
Melinda Baduk v The State & Ors [1993] PNGLR 250
Kule Bagu v MVIL (2023) N10111
Togu Yassah v Willie Ambros Junior & The State (2024) N10769
Aisi Tau’iu v Dr Apisai Kerek (2024) N11007
Andrew Moka v MVIL (2004) SC729
Leme v Winnie (2021) N8971
Kol v Shorncliffe (PNG) Ltd (2001) N2121
Mamando v Goiya (1992) N1066
Counsel
Mr T IIaisa, for plaintiff
No appearances, for defendants
JUDGMENT
1. MAKAIL J: This is a trial on liability and assessment of damages arising from a cause of action in negligence. The plaintiff Michelle Mirokei is the biological mother of the infant, Bani Mirokei who was injured at Taurama Primary School during a school day when the students were cleaning their classroom in the afternoon after classes. It is alleged that the first defendant, being the student’s class teacher, was absent on the day of the incident, leaving her students unsupervised and thus resulting in the injury of Bani Mirokei when he fell from a chair and injured his jaw on the concrete floor, resulting in the loss of his upper front tooth.
PLAINTIFF’S EVIDENCE
2. In support of the plaintiff’s claim the following were tendered and marked exhibits:
2.1. Affidavit in Support of Michelle Mirokei sworn on 23rd February 2022 and filed on 24th February 2022 – Exhibit “P1”.
2.2. Affidavit of Bani Mirokei Jr sworn 24th February 2022 and filed on 25th February 2024 – Exhibit “P2”.
2.3. Affidavit of Bani Mirokei Jr sworn on 31st October 2024 and filed on 2nd December 2025 – Exhibit “P3”.
2.4. Affidavit of Lucy Garo sworn on 31st October 2024 and filed on 2nd December 2024 – Exhibit “P4”.
2.5. Affidavit (confirming school) of Michelle Mirokei sworn on 15th April 2025 and filed on 30th April 2025 – Exhibit “P5”.
2.6. Affidavit of Michelle Mirokei sworn 30th June 2025 and filed on 2nd July 2025 – Exhibit “P6”.
2.7. Affidavit of Jane Kuppas sworn on 30th June 2015 and filed on 2nd July 2025 – Exhibit “P7”.
DEFENDANTS’ EVIDENCE
3. There were no affidavits tendered by or for ant of the defendant to rebut the plaintiff’s assertions in the above affidavits.
FINDINGS
4. Based on the above affidavits, the following findings are made:
4.1. Bani Mirokei was 10 years old and in Grade 3D class of Taurama Primary School in 2016.
4.2. Taurama Primary School is a government-run school located within Taurama Barracks in the National Capital District.
4.3. The first defendant is a teacher by profession and was Bani Mirokei’s class teacher at Taurama Primary School.
4.4. On 31st May 2016, classes for the day were suspended due to toilet blockage and students were asked to go home at 12 midday.
4.5. Bani and several other classmates remained in his classroom to accompany his classmate, Sari Paulo who was rostered for the classroom clean-up duties that day.
4.6. The first defendant was absent from duties on 31st May 2016 without any approval of leave of absence.
4.7. As a result, the students including Bani remained in their classroom unsupervised.
4.8. While in their classroom, Bani and his classmates played. He tripped and fell face down onto the concrete floor landing on his mandible, thereby fracturing his upper incisor tooth from the impact.
LIABILITY
5. Given that the trial of this proceeding progressed without any appearance of any of the defendants there was no submissions to contest the issue of liability. Nonetheless, that it is necessary for the plaintiff to prove that there is a duty of care owed by the defendants to him, that the defendants breached the duty of care and he has suffered injury. I uphold the plaintiff’s submissions that a duty of care exists between a teacher and student to provide a safe and secured learning environment to a student and in turn is the duty of the school.
6. I am satisfied that the plaintiff has established that the defendants were negligence because of the following circumstances:
6.1. Bani Mirokei was a student in Grade 3 attending Taurama Primary School in 2016.
6.2. The first defendant was his class teacher.
6.3. Taurama Primary School is a government-run-school.
6.4. On 31st May 2016 Bani sustained body injury when he tripped and fell on his mandible on the concrete floor in the classroom resulting in a fracture of his front incisor tooth.
6.5. The 31st May 2016 was a designated school day.
6.6. On 31st May 2016 the first defendant was absent from school duties.
6.7. On 31st May 2016 Bani and his classmates were left unsupervised.
7. Also, I uphold the plaintiff’s submissions that it is immaterial whether the school day was suspended, and students were allowed to leave. In my view, they were legitimately on school premises on a designated school day and accompanies their classmate on his rostered classroom clean up duty.
8. The law recognizes the duty of care to the children to be more onerous given the fact that children are prone or expected to fall out of line if they are unsupervised. The cause of action in this case falls under the broader heading of negligence, but peculiar to the facts here, comes under the description of occupier’s liability. Section 52 of the Wrongs (Miscellaneous Provisions) Act provides as follows:
“(1) An occupier of premisses owes the same duty (in this section referred to as “the common duty of care” to all his visitors, except so far as he is free to and does, extend, restrict, modify or exclude his duty to a visitor by agreement or otherwise.
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3) The relevant circumstances, for the purposes of this section include the degree of care, and of want of care, that would ordinarily be looked for in such a visitor, so that, amongst other things, in proper cases –
(a) an occupier must be prepared for children to be less careful than adults” (Emphasis added).
9. In Tom by his next friend Tom Amori v The State (1999) SC609, the Supreme Court held that:
“2. A higher duty of care than in the past in supervising students in school playgrounds is now required.
10. The National Court in dealing with a similar case where a student was left unsupervised in Melinda Baduk v The State & Ors [1993] PNGLR 250 held that:
“(1) The plaintiff was owed a duty of care by the class teacher, who was a servant of the State, to ensure that she was safe inside the classroom.
(2) In leaving the children unsupervised, the class teacher breached the duty of care imposed on her.
(3) The plaintiff suffered damages as a result of his breach of duty of care.
(4) The first and third defendants are, therefore, liable for the loss and damage suffered by the plaintiff as a result of injuries caused by the class teacher’s negligence.”
11. Based on the above findings and law on occupier’s liability, I am satisfied that the plaintiff has established negligence and judgment on liability is entered against the defendants.
ASSESSMENT OF DAMAGES FOR PAIN AND SUFFERING
12. The plaintiff claims the following relief in the statement of claim:
12.1. General damages for pain and suffering.
12.2. General damages for shame and humiliation.
12.3. General damages for loss of amenities.
12.4. Special damages.
13. The plaintiff claims a sum of K30,000.00 as general damages for pain and suffering for the loss of her son’s tooth. I note the awards in the cases of Kule Bagu v MVIL (2023) N10111, Togu Yassah v Willie Ambros Junior & The State (2024) N10769, Aisi Tau’iu v Dr Apisai Kerek (2024) N11007 which the plaintiff refers to in her submissions. These cases relate to loss of vision of one eye and the awards were between K90,000.00 and K100,000.00.
14. As to a tooth injury, in Leme v Winnie (2021) N8971, the Court awarded a sum of K29,000.00 for pain and suffering for loss of two teeth and facial injuries. I will use the award in Leme case rather than the awards in the above cases to assess a fair and reasonable sum. Accordingly, I uphold the plaintiff’s submission that given that the award in Leme case was four years ago and taking into account inflation as was held in Andrew Moka v MVIL (2004) SC729, I award a sum of K30,000.00 as general damages for pain and suffering.
GENERAL DAMAGES FOR SHAME AND HUMILIATION
15. The plaintiff claims a sum of K40,000.00 as general damages for shame and humiliation because of the loss of her son’s tooth. I accept Bani’s account that his front incisor tooth has been broken and has a gaping hole at the front. The missing tooth is further verified by two photographs of the missing tooth at annexure “A” to exhibit “P3” and a medical (dental) report from Paradise Private Hospital of the tooth’s extraction at annexure “A” to exhibit “P4”.
16. I uphold the plaintiff’s submissions that it is open to the Court to award general damages for shame and humiliation because of the loss of the tooth. In Kule Bagu case where the plaintiff suffered head and facial injuries, the Court noted the significance of the head and face when it stated at [55] thus:
“any injury to the face or skull has the potential to be traumatic......the face is the focal point of all interactions with other fellow human beings including looking into the mirror. The face or facial appearance connects a human to another human, whether through a fleeting glance, face to face meeting or a Facebook profile picture.”
17. In this case, I accept Bani’s assertions in exhibit “P3” that:
“9. ....... After the loss of my front tooth back in 2015 (sic), I have been isolated since then, due to the feeling of insecurity and anxiety about other children and or my friends calling me names or making fun of me. I avoided associating with everyone to avoid me losing my temper and getting mad at anyone,
10. .......My friends in high school sometimes humiliated me in front of other children and made me feel uncomfortable. At times I feel like giving up hope not to attend school as I was really humiliated but my mum and my dad always encourage me to only concentrate on my studies.
14. I have low self-esteem mainly because I cannot talk or smile freely when I want to. I always keep quiet and realised that I developed a quiet personality.”
18. Also, I accept the plaintiff’s assertions at [3] to [12] of exhibit “P6” and Jane Kuppas’ assertions at [3] to [8] of exhibit “P7” that Bani after losing his front tooth, Bani has struggled to fit into his surroundings and social interaction. Whenever in public including attending sporting activities, Bani will always want the plaintiff to be by his side. Furthermore, at [36] to [39] and annexure “I” to exhibit “P1” is the concern that Bani’s school academic marks dropped in 2016. Part of the reason was that Bani did not receive much assistance from the first defendant. It resulted in Bani withdrawing from school before the year ended. However, Bani’s academic performance significantly improved in the following year (2017) when he moved to Grade 4 with a new class teacher. Because of these factors, I accept that Bani is suffering from low self-esteem and has become an introvert.
19. Significantly, I accept the plaintiff’s submissions that psychological impact of the loss of the front tooth on Bani’s growth and development as a child over the years and from being a free-spirited and care-free child to being now a teenager who has developed a low self-esteem and introverted personality and must rely on constant support and encouragement from his parents must call be a higher award of damages. The loss of the upper front tooth is a permanent loss. As tooth implant as replacement does not necessarily make full restitution in place of God’s creation.
20. An added factor is because of the face being the focal point of all interactions with other fellow human beings including looking into the mirror, Bani’s interactions with others have been drastically changed over the years since losing his front tooth.
21. As to what is a fair and reasonable sum to award to compensate Bani, in Kule Bagu case a sum of K60,000.00 was awarded for the head and facial injuries. The sum included multiple facial injuries and disfigured facial profile. However, in his case, I accept the plaintiff’s submissions that Bani suffered and continues to suffer the same loss of low self-esteem because of the loss of the upper front tooth. A further factor is that, unlike the plaintiff in Kule Bagu case who was an adult married man at the time of the injuries and had lived life and had the opportunity to finding love of his life, marrying and having children, Bani was an infant in the development stages of his life, doing Grade 3 at the time of the injury and only 10 years old. Whether Bani will enjoy the life Kule Bagu had remains to be seen. In my view, these factors call for a higher award.
22. Finally, and by way of reinforcing the importance of the head and face of a human being, some 24 years ago, in Kol v Shorncliffe (PNG) Ltd (2001) N2121 the National Court commented that the award of damages for facial disfigurement in an earlier case in Mamando v Goiya (1992) N1066 where a sum of K4,000.00 was awarded for injury to the plaintiff’s nose where the tip of the nose was bitten off was too low. It commented as follows:
“With all due respect to His Honour I am very much of the view that his award of damages was extremely low, in fact I am somewhat surprised that there was not an Appeal to the Supreme Court.”
23. The National Court further commented:
“The plaintiff has suffered a permanent injury to his nose which has left him with nasal speech and some problems with his breathing. In fact, nose is noticeably permanently bent and because of that he suffers embarrassment and shame. His embarrassment should not be taken lightly as any disfigurement to a person’s face is extremely embarrassing for that person and even though the disfigurement may not appear so bad and unsightly to an observer, that is no consolation to the person with the disfigurement who quite often feels shy, ashamed and embarrassed and feels that many people are staring at him and making insulting comments. Some people with a facial disfigurement become quite withdrawn and have no joy in going out in public.”
24. I agree with these comments. Bani’s condition is no different to the case described above. In Kol the National Court awarded a sum of K9,500.00 for facial disfigurement. However, the award is outdated. Using the award of K60,000.00 in Kule Bagu case as a guide, I award K40,000.00 as general damages for shame and humiliation. I hope this is a fair compensation to Bani for the loss of his front tooth, considering his young age, the higher duty of care of teachers towards their students and his life-long struggle to cope with a naturally shameful outward appearance.
GENERAL DAMAGES FOR LOSS OF AMENITIES
25. The plaintiff did not make any submissions to support an award under this head of damages. Accordingly, no award is made.
26. The plaintiff claims special damages to recover costs of medical treatment and out of pocket expenses as follows:
26.1. Emergency admittance fee K10.00
26.2. Recovery food – K50.00
26.3. Taxi fare from barracks and Lamana Dental Clinic – K200.00
26.4. Medical report – K100.00
Total K360.00
27. These costs are verified by the plaintiff in exhibit “P1”. I award a sum of K360.00.
28. I will award a further sum of K14,600.00 for costs of tooth implant to replace the missing front tooth based on the invoice from Lamana Dental Clinic dated 27th June 2025 at annexure D” to exhibit “P6”.
29. Total sum awarded for special damages is K14,960.00.
SUMMARY OF AWARDS
30. The plaintiff is awarded:
30.1. General damages for pain and suffering – K30,000.00
30.2. General damages for shame and humiliation – K40,000.00
30.3. Special damages - K14,960.00
----------------
Total K80,960.00
----------------
INTERESTS
31. There shall be an award of interests at the rate of 2% per annum on the total judgment sum of K80,960.00 from the date of filing of writ of summons to date of final settlement pursuant to Section 4 of the Judicial Proceedings (Interests on Debts and Damages) Act 2015.
COSTS
32. As the unsuccessful party, the defendants shall pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
ORDER
33. The orders are:
1. Judgment on liability is entered against the defendants.
________________________________________________________________
Lawyer for plaintiff: Public Solicitor
Lawyer for defendants: Solicitor General
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