The Class Teacher’s Duty To Supervise Pupils In Papua New Guinean Schools:  Baduk’s Case Mistreated
Lawrence Kalinoe*
Introduction
Since the landmark 1993 decision in Baduk v The State [1993] PNGLR 250, three other decisions have been handed down by the National Court that appear to have refined the reasoning in Baduk’s case.  These are the decisions of Kapi Dep CJ in Tom v The State (1996) N 1475, and two recent decisions of Woods J in Tuba v The State (1997) N 1581 and Niligur v The State (1997) N 1579. These last two decisions were delivered simultaneously on 14 April 1997 at the National Court sitting in Kokopo.  This note looks at the extent to which these subsequent decisions have mistreated the principles of law articulated in the Baduk case.
The Tom Case
In Tom v The State (1996) N 1475, the plaintiff suffered injuries to the right eye when he was hit by a stone thrown by a stranger from outside the school security fence.  The plaintiff was a grade one student at the time of the accident.  He was returning from the school toilet, situated inside the school grounds, during lunch hour (about 12.15pm) when the stranger from outside the security fence asked the plaintiff for 20 toea.  When the plaintiff did not give him anything, the stranger picked up a stone and threw it over the fence, striking the plaintiff above the right eye.  Although there was a duty teacher assigned for the period, the duty teacher was not present at the place where the incident occurred.  The duty teacher was however having lunch in the staff room.
The plaintiff sued for damages for injuries received alleging negligence on the part of the State by its agents or employees.  In arriving at its decision, the court accepted the law as stated in the Baduk case, but distinguished it on the evidence that in Baduk the injury was caused by a fellow pupil and inside the classroom.  In contrast, in the instant case:
“The injury received by the plaintiff was caused by a non-student while the plaintiff was coming back from the toilet.  The injury cannot be attributed to the very fact of non supervision.  It was caused by someone who unlawfully threw a stone from outside the school premises.  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?”

The court cited and discussed with approval two well known decisions which state the position at common law.  These two cases are Rawsthorne v Ottley [1937] 3 All ER 902 and Ricketts v Erith Borough Council and Another [1943] 2 All ER 629.  Unfortunately, without considering the mandatory question of law as to the circumstantial applicability requirement under Sch 2.2 of the Constitution, and even further without considering the important Joint Circular/Instruction on Teachers’ Responsibility for Student Safety, the court simply accepted the common law position.  Kapi Dep CJ stated:
“It is clear from the principles set out in these cases that the duty of care is that of a careful parent.  It is also clear from these authorities that absence of supervision of itself is not breach of duty of care because it is not expected that the teacher should observe each child every moment of his time at school.  Whether or not there is breach of duty depends on the whole of the circumstances.  In this case the relevant facts are these:  (a) the whole school premises is secured by security fence  (b) A duty teacher was provided to be around the school grounds during lunch – the duty teacher was having lunch at the time of the incident in the staff room.

The relevant question in this case is whether the school could have anticipated that outsiders were likely to attack pupils in the school premises in the manner it occurred in this case?  Had there been any previous attacks on pupils in the school premises or at the same spot?  There was no evidence led by the plaintiff in this regard.  The plaintiff has the onus of proving its case and failed to prove these relevant matters.

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.  Furthermore, 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 this unlawful act and I find that the defendant was not liable.”

It should be noted that these common law principles that Kapi DCJ applied were carefully, properly and exhaustively considered by the court in Baduk.  The court there, rather than simply accepting these common law principles, opted to apply the Joint Circular/Instructions on Teachers’ Responsibility for Student Safety and found the State through its employees or agents liable.  In my opinion, the approach taken by the court in the Baduk case is to be preferred, because it is clearly in compliance with the constitutional requirements of Sch 2.2 of the Constitution, particularly the circumstantial applicability requirement.  It should therefore be accepted as the law in Papua New Guinea that the clear duties and responsibilities imposed on the schools through their teachers by the Joint Circular/Instructions on Teachers’ Responsibility for Student Safety should vary or replace the common law principles as stated in the Rawsthorne v Ottley and Ricketts v Erith Borough Council cases.
The Tuba Case
In Tuba v The State (1997) N 1581, the plaintiff, Helen Tuba, lost 84% efficient use of her right eye when another pupil threw a stick during a normal rubbish collecting parade and hit her in her right eye.  The stick was hurled at another pupil but missed and instead struck the plaintiff’s right eye.
On the evidence, Woods J found that “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 before classes commenced”.  Although this was a required activity before classes commenced each day, on this occasion there was no teacher supervising that activity.
Woods J summarised the plaintiff’s claim in the following words:
“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.”

On the facts, the court did not have much difficulty in finding the State negligent.  Woods J set out the following statement of law: 
“The law about the duty of care required within a school classroom during class periods and during regular school activities is quite clear and I refer to the case of Baduk v PNG [1993] PNGLR 250 where pupils were inside a classroom although not for a class period but during the lunch recess as it was raining outside and a pupil threw a sharp-pointed lead pencil at the plaintiff in that case who was seated at her desk and the plaintiff suffered severe injuries leading to the loss of the eye.  The court in that case concluded that the teacher owed a duty of care as a servant of the State to ensure that the pupil was safe in the classroom.  And because the teacher left the pupils unsupervised in the classroom she had breached the duty of care.  I note the case of Tom v The State [(1996) N 1475] where Kapi DCJ said ‘It is clear from the principles set out in these cases that the duty of care is that of a careful parent.  It is also clear from these authorities that absence of supervision of itself is not a breach of the duty of care because it is not expected that the teacher should observe every child at every moment of their time at school.  Whether or not there is breach of the duty depends on the whole of the circumstances.’

In this case before me now the plaintiff and other pupils were engaged in a normal school activity which clearly comes within the guidelines for appropriate supervision.  This was not during a normal recess period when it has been said that it is impossible to hold that a teacher has to be present and keep an eye on every child during the recess period in the school grounds.  This was a programmed activity.  If there had been the proper supervision of such programmed activity then there would not have been any horseplay and the accident would not have happened.  I am satisfied that the incident arose because of the failure of the teacher to perform appropriate supervisory duties and therefore as an employee of the State I find that the State is liable for the dereliction of duty of the teacher.”

On the issue of damages, the court proceeded to award the plaintiff general damages of K20,000 together with interest, and also a small sum for out of pocket expenses.
The Niligur Case
In Niligur v The State (1997) N 1579, a fellow pupil threw a stick at the plaintiff and struck him in the left eye and as a result he lost his left eye.  The accident happened inside the school grounds during a recess period and just as the students were to return to the classroom for their afternoon study.  The judge emphasised in his findings that “the incident did not occur during a normal school programmed activity but at the end of a recess period”.
On the issue of liability, Woods J first accepted the law as stated in  Baduk v PNG (1993) PNGLR 250, but then made a distinction between an incident occurring inside a classroom (as in Baduk’s case itself), and in contrast an incident happening outside the classroom and during recess.  In this regard, the court stated:
“Whilst the law about the duty of care required within a school classroom during class periods or during regular school activities is quite clear and I refer to the case of Baduk v PNG [1993] PNGLR 250 where an incident happened inside a classroom, there may be different considerations when incidents happen outside classrooms and during recess periods when pupils are not engaged in normal school programmed activities.”

Woods J then made reference to Kapi Dep CJ’s decision in Tom v The State (1996) N 1475, where the court had discussed some pertinent common law cases on the point of law.  The effect of these cases, according to Woods J, is that the duty of care that teachers owe to their students is that of a careful parent, and that absence of supervision is not itself a breach of a duty of care because teachers are not expected to observe each child at every moment of his or her stay at school.  The court then continued:
“Whether or not there is a breach of duty depends on the whole of the circumstances.  I accept these principles.  The incident happened during a period of recess.  It is noted that even during recess periods there is a requirement that there be a duty teacher however there is no requirement that that means that the duty teacher is to be in a position to observe every student at all times.  That would be physically impossible and would be higher than the duty of care or practice of an ordinary parent.  School children are often boisterous and may do a lot of running around and even engage in mild physical confrontations and a certain amount of that must be accepted as normal.  Of course if the running around or confrontations became serious there would be times when a duty teacher would have a responsibility to ensure that such boisterous activity did not get out of control if and when the duty teacher found out about it.  However there is no evidence here that the incident here had been long running such that any duty teacher should have found out about it, nor that the teachers should have known about it.  Instead the evidence suggests it was some boisterous confrontations that occurred just near the end of the recess period as pupils were going back to class, and it happened around one of the buildings so not in full view of any person in authority.

I find that this is similar to the principles iterated by Kapi DCJ that in the circumstances no duty teacher could have prevented the unlawful act, it was purely a matter where pupils had become too rough before anyone in authority could have known or realised, and therefore the school authorities could not be held responsible.”

It is interesting to note that the difference between these two decisions, handed down on the same day, is that in Tuba the court found for the plaintiff mainly because the injury occurred during a “programmed school activity”.  In contrast, in Niligur the incident was found to have happened during the recess period, and therefore the State was not held liable.  It is very clear that in the latter case, Woods J was largely influenced by Kapi Dep CJ’s decision in Tom v The State.  There, Kapi Dep CJ refused to find the school and the State liable, mainly on the basis of the common law authorities and with very little regard for the legislatively sanctioned Circular Instruction No 18/82 on the subject of Teachers Responsibility for Student Safety.  Clause 5 of this Circular requires all teachers to provide efficient supervision during all recesses.  Such supervision is to include the proper and adequate oversight of the playgrounds, toilets and buildings during daily recess.  Equally so, Woods J’s decision in Niligur fails to take into consideration the requirements of this particular clause of the statutorily sanctioned Circular Instructions.  In my view, this is the wrong approach because those common law cases are supposed to be subject to Papua New Guinea’s statute law and statutory instruments and local case law such as the Baduk case.  In the Baduk case, the court clearly refused to follow those common law cases, and largely relied on the Circular Instruction on Teachers’ Responsibility for Students Safety.  As a result, the court there found for the plaintiff.
Conclusion
It is fair to say that subsequent decisions after Baduk have not adequately considered the principles of law articulated by the late Konilio J in that case.  For example, Kapi Dep CJ in the Tom case takes a very simplistic and cursory approach, by failing to discuss the principles of law in Baduk and preferring instead to adopt the common law cases but without any consideration for the requirements of Sch 2.2 of the Constitution.  Again, Woods J takes a similarly simplistic and cursory approach in the Niligur case.  It is submitted that the court should instead have looked carefully at the Joint Circular/Instruction No 18/82 on Teachers’ Responsibility for Student Safety.  In particular, Clause 5 of this instrument clearly requires all teachers to provide efficient supervision as well during all recesses, which supervision includes the proper and adequate oversight of the playgrounds, toilets and other buildings.