Melinda Baduk by her next friend Lois Baduk v The Independent State of Papua New Guinea, Joe Umba by his next friend William Umba and Waigani Community School Board of Management [1993] PNGLR 250

• Jurisdiction: Papua New Guinea
• Judge: Konilio J
• Judgment Date: 01 July 1993
• Court: National Court
• Citation: [1993] PNGLR 250
• Year: 1993
• Judgement Number: N1173

Full Title: Melinda Baduk by her next friend Lois Baduk v The Independent State of Papua New Guinea, Joe Umba by his next friend William Umba and Waigani Community School Board of Management [1993] PNGLR 250

National Court: Konilio J

Judgment Delivered: 1 July 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MELINDA BADUK BY HER NEXT FRIEND LOIS BADUK

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;

JOE UMBA BY HIS NEXT FRIEND WILLIAM UMBA; AND

WAIGANI COMMUNITY SCHOOL BOARD OF MANAGEMENT

Waigani

Konilio J

20 August 1992

1 July 1993

NEGLIGENCE — Duty of care to school child in classroom — Standard of care.

DAMAGES — Assessment of — General damages.

Facts

The plaintiff and second defendant were both Grade 4 pupils at Waigani Community School. At the direction of the class teacher they, together with other pupils of the same class, went inside the classroom to have their lunch as it was raining outside. Whilst in the classroom, the second defendant threw a sharp-pointed lead pencil at the plaintiff, who was seated at her desk. The pointed end of the pencil struck her right eye, and she sustained severe injuries leading to loss of the eye.

The plaintiff claimed damages for injury sustained, alleging negligence on the part of the first and third defendants caused by the inadequate supervision of the class teacher.

Held

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 this 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.

Cases Cited

Papua New Guinea cases cited

Administration v Carroll [1974] PNGLR 265.

Murray v Kinamur [1983] PNGLR 446.

Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185.

ToWalaunia v Tsihakon (1990) unnumbered, unreported NC.

Other cases cited

Chilvers v LCC (1916) 32 TLR 363.

Clarke v Bethnal Green BC (1939) 55 TLR 519.

Gow v Glasgow Education Authority [1922] SC 260.

Price v Caernarvonshire County Council (1960) Times, 11 February.

Rawsthorne v Ottley [1937] 3 All ER 902.

Ricketts v Erith BC [1943] 2 All ER 629.

Woodward v Mayor of Hastings [1945] KB 174.

Counsel

A Marat, for the plaintiff.

H Polume, for the first and third defendants.

1 July 1993

KONILIO J: This action was commenced by writ of summons on 17 January 1991. The matter came before me for hearing on 20 August 1992. I required counsel to file written submissions dealing with the questions of liability and quantum by 31 August 1992. These were duly filed.

In her amended statement of claim, the plaintiff claims amongst other things the following:

"5. The plaintiff and the second defendant were both Grade 4 pupils at Waigani Community School which is a public school set up and run by the first defendant through its instrumentalities, agencies or servants.

6. On or about the 2nd day of February 1989, at about 12.10 pm, at the direction of the class teacher, Mrs Anastacia Glaney, an employee, agent or servant of the first defendant, the plaintiff, then aged 9, the second defendant and other pupils of the same class went inside the classroom to have their lunch as it was raining heavily outside.

7. Whilst the plaintiff was inside the classroom, the second defendant threw a sharp pointed lead pencil at the plaintiff, who was seated at her desk. The pointed end of the pencil struck her right eye and she sustained severe injuries.

Particulars of injuries

- Perforation in the right eye caused by sharp pointed end of the pencil.

8. The said accident was caused by the negligence of the class teacher of the then Grade 4 pupils, who was an employee agent or servant of the first and third defendants.

Particulars of negligence

(a) Having directed the pupils including the plaintiff and the second defendant to go into the classroom, the class teacher failed to ensure order and good behaviour.

(b) Failed to exercise proper supervision, guidance and control of the pupils inside the classroom at the material time.

9. In consequence of the matters aforesaid, the infant plaintiff has suffered loss and damages.

Particulars of loss

(a) Removal of the right eye surgically on 24 January 1991

(b) 100 percent effective use of the right eye and 50 percent of plaintiff's binocular vision have been lost.

PrescriptionsK1. Eye Drops10.202. Sunglasses (pair) 8.00Hospitalisation and Operation88.00Transportation9.00Provisions for guardian, mother looking after child in hospital74.00TotalK189.00"The plaintiff claims damages and interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.

The first and third defendant filed a defence, but not the second defendant. The first and third defendants deny the allegations contained in paragraphs 8 and 9 of the plaintiff's statement of claim referred to above.

They also deny particulars of negligence alleged against them in paragraph 8 of the statement of claim and say that, if there was any negligence as alleged, then it was the plaintiff who was negligent.

The first and third defendants provide the following particulars of negligence alleged against the plaintiff:

(a) failing to heed to lawful instructions when specifically instructed by the class teacher not to play and be disorderly whilst being inside the classroom.

(b) by playing and being disorderly with the other children who were also in the classroom, the plaintiff was exposing herself to the inherent risks of being injured or assaulted by another student.

The first and third defendants, thus, deny that they are liable for the damages suffered by the plaintiff.

In support of her claim, the plaintiff gave evidence. She is now a Grade 7 student at Mount Diamond Adventist High School.

She gave evidence that she recalled 2 February 1989, when her eye was poked by a pencil that came from the back of the classroom. She continued:

"I was coming back from the doorway to my desk. I was trying to go out of the classroom to buy my lunch at the school canteen. This was at 12 o'clock. I was standing at the doorway waiting for the rain to finish and I will go out. The teacher made an announcement that we should go back to our desks. When I walked back, she walked out. Teacher's name is Mrs Glaney. She walked out of the classroom. I do not know where to. When she walked out, there was no other teacher in my classroom. I came to my desk. While I was about to sit down, I heard someone call my name. I turned around and I was poked in the eye. I do not know who threw the pencil. I did not feel anything. I just fell down to the floor. When other children saw me fall down, they came and lifted me up. Teacher was not in the classroom. Children went to look for her. Before she came, a senior teacher came into the classroom. It was a long time before my teacher came. When she came, she went to a teacher who had a truck. He took us down to University Clnic.

At the clinic they put ointment into my eye to stop the pain. I was feeling some pain. I still feel pain now sometimes. At University Clinic on that day, that was the only treatment. In the afternoon, my parents took me down to the general hospital. I was given eye drops and told to come next day.

Next day, I went back and had my eye operated on. After the operation, I still felt pain. After the operation I went back home. After some time, I could not see clearly so I went back for another operation. Do not know when. That operation was to remove my eye. I am still feeling pain now.

I felt very sharp pain in both eyes. I have a false eye now. Lately, I have been back to the hospital on August 6 on a Thursday. They checked my eye and gave me an extra one. I have regular aches with the false eye. The extra eye is for when it is painful and when it gets smaller.

I do not play sport now. I played sport before injury — basketball and softball.

Going back to incident at the school, when I was at the doorway to classroom, I was not playing when waiting for the rain to stop. When I went back to the seat, it was because teacher (Mrs Glaney) had told me to sit down."

In cross-examination, the plaintiff said she came to know it was Joe Umba who threw the pencil at her because he admitted this to the teacher later on in the classroom when the teacher asked the class who had injured her.

One of the plaintiff's classmates, Sharon Sipenta, also gave evidence which confirmed the evidence of the plaintiff as to what happened in the classroom.

The Teaching Service Commissioner, Mr Mamis, was also called to give evidence. He gave evidence that he was the Teaching Service Commissioner in 1989. As such, he was and is responsible for making sure that teachers carry out the duties to the best of their abilities in...