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Tom (by his next friend Tom Amori) v The Independent State of Papua New Guinea [1999] PGSC 11; SC609 (30 April 1999)

Unreported Supreme Court Decisions

SC609

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 73 OF 1996
BETWEEN: SIMEON TOM BY HIS NEXT FRIEND TOM AMORI
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Hinchliffe Jalina Akuram JJ
31 March 1998
30 April 1999

APPEAL from National Court — Eye injury in school playground — Damages Claim — National Court found no negligence on the part of the State — Appeal upheld.

The appellant, a nine year old school student, received a serious eye injury when he was struck by a stone. The stone was thrown over the boundary fence of his school into the playground where he was situated. The person who threw the stone was a non-student who shortly prior to the incident has asked the appellant for twenty toea. The appellant had refused the request.

Held

1: The two English cases relied upon by the trial judge are from a past era. Conduct in school playgrounds has changed for the worse over the last fifty years.

2: A higher duty of care than in the past in supervising students in school playgrounds is now required.

3: The duty of care required of the school staff inside the classroom or outside in the playground is now almost the same.

4: Decision of the trial judge quashed and judgement be entered for the appellant. The matter to be returned to the trial judge for assessment of damages.

Cases Cited

Melinda Baduck v The State & Ors [1993] PNGLR 250.

Rawsthorne v Ottley [1937] 3 All. E.R. 902.

Ricketts v Erith Borough Council & Anor [1943] 2 All ER 629.

Appeal

This was an Appeal against a decision of the National Court where the Court found that there was no negligence on the part of the defendant.

Counsel

P. Mamando, for the Appellant

P. Mogish, for the State

30 April 1999

HINCHLIFFE JALINA AKURAM JJ: This is an appeal against a decision from the Deputy Chief Justice in the National Court at Waigani on the 4th October, 1996. His Honour dismissed a claim for damages in relation to a nine year old boy who lost all but 5% of the sight of his right eye whilst at his school.

The plaintiff had brought the action by his next friend who in fact is his father. He (the plaintiff) was about nine years old at the time of the incident and was a grade one student at the Bavoroko Community School in the National Capital District. On the 16th November, 1993 he was at the school. During the lunch hour, at about 12:15pm, he went to the toilet situated on the school premises and was returning from the toilet when a boy, a non-student who was outside the school premises asked him for twenty toea. The school has a security fence and the plaintiff was inside the fence and the non-student was outside the fence. The plaintiff did not give the money as requested. The stranger then picked up a stone, threw it over the fence and hit the plaintiff above the right eye. At the time this occurred there was no teacher around where the incident took place. The duty teacher was having lunch in the staff room.

The plaintiff suffered injuries to his right eye. He brought an action for damages for injuries received for negligence or breach of duty of care on the part of the State. The State had denied liability in the National Court.

The Grounds of Appeal as set out in the Notice of Appeal, filed on the 8th November, 1996 read as follows:-

“3. Grounds

(i) His Honour erred in concluding that the duty teacher would not have prevented the stone being thrown by an outsider to the plaintiff.

(ii) His Honour erred in not giving sufficient regard to the evidence that the duty teacher was in the staffroom and not looking after the appellant outside when he was attacked.

(iii) His Honour erred in not giving sufficient regard to the evidence that before the attack there had been no security guards placed in the school premises, but after the attack security guards have been placed at the school premises.

(iv) His Honour erred in law in finding that the injury caused to the appellant was not caused by the negligence of the school.”

The Orders sought in the said Notice of Appeal read as follows:-

“4. Orders sought in lieu of the decision appealed from:-

(i) That the decision of His Honour Deputy Chief Justice Kapi of the 4th October, 1996 be quashed.

(ii) That judgement be entered for the appellant for damages to be assessed.

(iii) That the respondent pay the appellant’s costs of and incidental to this appeal.”

The trial Judge relied on several English cases in coming to his finding that there was no negligence on the part of the defendant. The first was Rawsthorne v Ottley [1937] 3 AII E. R. 902. In that case, a tip-up lorry had delivered coke in a school playground, and was driving away when a number of boys jumped on to the rear of the lorry causing the tipping part to tip up. Another boy, the plaintiff, jumped 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 leg. The headmaster of the school had left the boys to play in the playground and had returned into the school premises before the arrival of the lorry. He did not know of the arrival of the lorry. The plaintiff was almost fourteen years old at the time. Hilbery J. in dealing with the relevant principles said:

“I consider the case against the headmaster. The duty of care is that of a careful parent. So be it. In what is suggested that the headmaster committed a breach of that duty? It is said that the lorries came to deliver coke, but he had no reason to anticipate that one might come that day. It is said that he would know that the lorry which would come would be a tipping lorry and therefore-in a phrase now established in the law-an “allurement” to boys. The headmaster said he did not know a tipping lorry would come, and I believe him. He further says that, if he had known it would come at playtime, he would have stopped it, not because of any danger, but because it would interfere with games and proper recreation in the yard. As to the allegation of permitting, it is said that the headmaster allowed the boys to play without supervision when the lorry was there. Mr Mansell did not see it there; 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 playtime; 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 lives. Having regard to the fact that the schoolmaster did not know that the lorry was there, I find that there is no negligence. It has been said that he knew it might have come. I still do not think that he should have stayed, lest such possibility should have become the event. Should he have stopped its coming during playtime? I do not think that that is lack of supervision, and it would necessitate extra supervision. Apart from it being a tipping lorry, to know that an ordinary lorry comes, and not to prevent it during playtime, is not lack of supervision...”

Secondly in Ricketts v Erith Borough Council and Another [1943] 2 AII ER 629 some 50 children were playing in the playground during the midday break. One of the boys aged 10 left the ground and went to a nearby shop and bought some blunted pieces of bamboo made up in a form of bow and arrow. He returned to the playground and unseen by the teachers he discharged the arrow in close proximity to the infant plaintiff and as a result injured the eye. Tucker J. concluded in the following words:

“The duty of the defendants 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 considering 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 children playing about together in a garden. That is perfectly true, and 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 the locality of this school, continuously present in that yard throughout the whole of this break; and nothing short of that would suffice. Unless that is their duty, 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, having regard to all the circumstances of the case.”

On page 4 of his judgement the trial Judge said as follows:

“Even if the duty teacher was in the school grounds and not in the staff room having lunch, it is not possible for the duty teacher to be close to every child. Further more it is not reasonable to expect the duty teacher to accompany every child to the toilet. I have reached the conclusion that in all the circumstances the duty teacher could not have prevented the unlawful act and find that the defendant was not liable.”

Unfortunately we are unable to agree with the learned trial judge. The two said cases relied upon by him are now over fifty years old. The playground scene in schools has changed enormously over those years. Hop-scotch and skipping, marbles and card swapping has now been replaced by guns, knives, drugs and violence. Only in the last few days have we seen in America a massacre of fifteen students by fellow students using firearms. Some schools in other countries are becoming like war zones. It is common knowledge that at some schools drug dealers and paedophilia loiter around outside the fences and probably it is one time in history that children at school need to be well and truly protected from threats coming from not only inside the school (including the playground) but also from outside. Maybe fifty years ago we would have agreed with what those learned judges said in the two said cases, but today we must recognise with some sorrow that playgrounds, not only in Papua New Guinea, but all around the World have changed for the worse. More care must be taken to protect the students. Gone are the days when a duty teacher could wander occasionally out to the playground to check the children at lunch time and then wander back to the staff room to eat lunch and maybe read a book or a newspaper. Much more care must now be given. We are of the view that the duty teacher, if present at the time, may well have prevented the unlawful act. It seems that at the time, this person who threw the stone, had been in some kind of verbal contact with a number of grade 2 students. Quite clearly the presence of the teacher would not only have broken that conversation up but it more than likely would have deterred the stone thrower from not only asking the plaintiff for money but also from subsequently throwing the stone. We are satisfied that there is far more potential for trouble to flare in the school playground these days than in past years and also that it is now more necessary for the duty teacher to be present in the playground and to be seen clearly by the students and by people on the outside at the boundary fence.

The trial Judge asked at p. 99 of the Appeal Book: “The relevant question to be determined in these circumstances is whether the act of throwing of the stone by the non-student was an act which could not be foreseen by the school and could not be prevented by the school? We are of the view that the school should have foreseen such an act occurring and it should have prevented it. That of course could only be achieved by the presence of a duty teacher in the playground on an almost permanent basis. Anything less by the school is failing in its duty of care to the students.

We note that the said Community School now, (but not at the time of the incident), employs Security Guards and that of course confirms what we have already said above that supervision in school playgrounds must be reviewed and an increased presence of teachers and guards must be introduced.

As has already been referred to, the duty of the defendant is that of a reasonably careful parent and we are satisfied that in these days a reasonably careful parent is one who would keep a fairly constant watch on his or her nine year old child to ensure that no harm would come upon him especially when he was outside the area of his own home.

We agree with Konilio J when he said in Melinda Baduck v The State & Ors [1993] PNGLR 250 at p. 256 the following: “It should be apparent from the above that, in my view, the class teacher, a servant of the first defendant, the State, owed a duty of care to the plaintiff to ensure that she was safe inside the classroom.” We say that those words of the late Mr Justice Konilio are nowadays equally applicable to students outside the classroom who are in the playground during a break in classes. It may well have been the case many years ago that the duty of care of the teacher inside the classroom was greater than the duty of care outside the classroom, but that has now changed considerably. The duties of care, to our mind, are now not very much different. Needless to say we do agree with the trial Judge when he said at p. 101 of the Appeal Book: “Whether or not there is a breach of duty depends on the whole of the circumstances.”

Therefore we are satisfied that the trial Judge fell into error when he found that there was no negligence on the part of the State and we order as follows:

1. That the decision of the trial Judge on the 4th October, 1996 be quashed.

2. That judgement be entered for the appellant and that the matter be returned to the trial Judge for assessment of damages.

3. That the respondent pays the appellant’s costs of and incidental to this appeal.

Orders accordingly.

Lawyers for the appellant: Mamando Lawyers

Lawyers for the respondent: Solicitor General