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Tom by His Next Friend Tom Amori v Independent State of Papua New Guinea [1996] PGNC 39; N1475 (4 October 1996)

Unreported National Court Decisions

N1475

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 416 OF 1995
BETWEEN:
SIMON TOM by his next friend TOM AMORI - Plaintiff
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Defendant

Waigani

Kapi DCJ
4 June 1996
15 July 1996
4 October 1996

NEGLIGENCE - Duty of care by school - pupil injured by an unlawful act of a stranger on school premises.

Counsel:

P Mamando for the Plaintiff

P Mogish for the Defendant

4 October 1996

KAPI DCJ: The plaintiff has brought this action by his next friend. He was aged about 9 and a grade one student at the Bavaroko Community School in the National Capital District in 1993. On 16 November 1993 he was at the school. During the lunch hour, at about 12.15 pm, he went to the toilet situated on the school premises and was returning from the toilet when a young boy, a non-student who was outside the school premises asked for a 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 twenty toea 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 at the place where this incident took place. The duty teacher was having lunch in the staff room.

The plaintiff suffered injuries to his right eye. He has brought this action for damages for injuries received for negligence or breach of duty on the part of the State. The defendant has denied liability.

LIABILITY

The facts in relation to how the incident occurred were not challenged by counsel for the defendant. The question I need to determine is whether the State is liable for damages. Counsel for the plaintiff has submitted that the State is liable in the circumstances. He particularly relied on three factors. The first is that the plaintiff was a grade one student and therefore required close supervision. The second is that at the time of the incident there was no supervising teacher near the plaintiff at the time. The third factor was that there was no security guards employed by the school to patrol the premises at the time. Counsel relied on two local cases, Rohrlach v Lutheran Church Prop. Trust [1985] PNGLR 185 and Colbert v PNG [1988-89] PNGLR 590. The former case is not very helpful in that it is an infant settlement and the question of liability was not an issue. The latter case deals with liability of employer to an employee and therefore not directly on point.

Counsel for the defendant referred to Baduk v PNG [1993] PNGLR 250 as setting out the relevant law. This case deals with the relevant law relating to the duty of care that is owed by a teacher to a pupil at school. The facts of this case were as follows. The plaintiff and the 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 Court concluded that the teacher owed a duty of care, as servant of the State to ensure that the pupil was safe in the classroom. Further the Court held that the teacher left the pupils unsupervised and thus breached the duty of care.

The situation in the present case is different. 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 nature of duty of care in similar circumstances was discussed in Rawsthorne v Ottley [1937] 3 All ER 902. In this 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. 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 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 play time, 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 play time? He saw them start to play; 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 a 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 its being a tipping lorry, to know that an ordinary lorry comes, and not to prevent it during playtime, is not lack of supervision...”

In Ricketts v Erith Borough Council and Another [1943] 2 All 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 a 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.”

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; and (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.

I dismiss the claim with costs.

Lawyers for the Plaintiff: Mamando Lawyers

Lawyers for the Defendant: Solicitor-General