Dorothy Kesley Tuba an infant by her next friend Helen Tuba v The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 14 April 1997
• Court: National Court
• Year: 1997
• Judgement Number: N1581

National Court: Woods J

Judgment Delivered: 14 April 1997

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...