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
• Court: National Court
• Citation: [1993] PNGLR 250
• Date: 01 July 1993
• Year: 1993

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

1 Negligence—duty of care—school child injured in classroom—standard of care

2 Damages—loss of eye—assessment—general damages

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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 first with the question of liability then 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 sitted 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.

PRESCRIPTIONS

1. Eye Drops K 10.20

2. Sunglasses (pair) K 8.00

Hospitalisation & Operation K 88.00

Transportation K 9.00

Provisions for Guardian, Mother K 74.00

looking after child in hospital

Total K189.00 "

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 the 2nd February 1989 when her eye was poked by a pencil that came from the back of the classroom. She continues:

"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. Teachers name is Mrs Gelaney. She walked out of the classroom. I do not know whereto. 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 fell anything. I just fell down to the floor. When other children saw me fell 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 Uni Clinic.

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

Next day went back and had my eye operated on. After operation still felt pain. After operation went back home. After sometime I could not see clearly so went back for another operation. Do not know when. Operation was to remove my eye. Still feeling pain now.

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

Involving pain when chance eyes.

Do not play sport now. Played sport before injury. Basketball and Softball.

Going back to incident at the school when at the doorway to classroom I was not playing when waiting for rain to stop. When went back to seat it was because teacher (Mrs Gelaney) 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 then 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 Teaching Service Commissioner in 1982. As such he was and is responsible for making sure that teachers carry out the duties to the best of their abilities in teaching the curriculum set by the Education Department to the children for the education of the children generally and by inspections ensure standards are maintained. His office is also responsible for the...