N11020

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 924 OF 2007

BETWEEN:
NEPOL POLE, for and on behalf of BENJI ANDIA (an Infant)
Plaintiff

AND:
THE BOARD OF MANAGEMENT, BOREBOA PRIMARY SCHOOL
First Defendant

AND:
DR. JOSEPH PAGELIO, in his capacity as the Secretary for Education Department
Second Defendant

AND:
DEPARTMENT OF EDUCATION
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
VEIVA GURE WARI
Fifth Defendant

Waigani:   Bre, AJ
2024: 8th August & 27th September

NEGLIGENCE – teacher/student relationship – duty of care exists - standard of care is that of a careful parent – teacher kicked bottle of urine towards students in class – teacher reckless - State vicariously liable for the negligent actions or omissions of its employee – negligence established.

ASSESSMENT OF DAMAGES – Court to do the best it can – general and special damages awarded.

Fact

While in the classroom, the fifth defendant, a primary school teacher kicked a 500 millilitre plastic bottle containing human urine towards two students who were seated at their desks, writing. The container poured and spilled onto one of the student's face, chest and body.  

Held

1)	The defendants owe a duty of care to the student to the standard of a careful parent to not cause harm to the student while in school. That standard was breached by the teacher. 
2)	The standard of care is a higher standard than the duty to take reasonable care.
3)	The teacher's conduct is reckless and done with disdain for the students in her care to intimidate and harass them.
4)	The State is vicariously liable for the teacher's action as her employer and for the first, second and third defendant’s actions or omissions as its entities.
5)	The plaintiff is entitled to damages for pain, humiliation, suffering and inconvenience.
6)	General and special damages are awarded of K64,000.00 plus pre-judgment interest at the rate of 2% at K10,880.00 plus reasonable costs incurred for the proceeding.

Cases Cited:
Papua New Guinean Cases

Baduk v The State, Umba and Waigani Community School Board of Management [1993] PNGLR 250
Dope v Malai [2012] N4574
Gunambo v Upaiga [2010] N3859
Mel v Pakalia (2005) SC790
Michael Kuman v Digicel (PNG) Ltd [2019] SC1851
Tirima v Angau Memorial Hospital Board [2005] N2779
Tom (by his next friend Tom Amori) v The Independent State of Papua New Guinea [1999] SC609
Wereh & Ors v Wamuk [2023] SC2487
Yambaki v Namues [2022] N9983

Overseas Cases

Re Roldano Introvigne By His Next Friend and Father Tarcisio Introvigne v the Commonwealth of Australia; Bunning and Madden; Bunning and Madden (A Firm) [1980] FCA 107; (1980) 48 FLR 161
Donoghue v Stevenson (1932) AC 562
Richards v. State of Victoria [1969] V.R. 136 (F.C.)
Williams v. Eady (1893) 10 T.L.R. 41

Legislation

Judicial Proceedings (Interest on Debts and Damages) Act 2015, ss4 and 6.
Wrongs (Miscellaneous Provisions) Act, s 1(1) or (4). 

Statement of Claim

Trial by Affidavit on liability and assessment of damages where the plaintiffs sought to prove negligence and obtain judgment on damages.	

Counsel

Mr R Kasito, for the Plaintiff
Mr D Gama, for the Defendants

JUDGMENT

27th September 2024
      
1.BRE, AJ: The plaintiff brings this proceeding against the defendants on behalf of student Benji Andia, for the alleged negligent actions of her teacher, Veiva Gure Wari. The student was a minor aged 16 years at the time of the alleged negligent actions in grade 5 at Boreboa Primary School at Waigani, National Capital District.

PLAINTIFF'S CLAIM

2.	The plaintiff's claim is that on 9 March 2006 around 10am, the minor's class teacher carelessly kicked a 500ml plastic coke bottle containing urine onto the student which poured on her face, chest and body, causing her humiliation, stress and medical issues.
The plaintiff alleges that at the time of the incident, Benji Andia was in grade 5 seated at her desk with her desk mate, writing.
The plaintiff alleges the first, second and third defendants are vicariously liable for the negligent actions of their employee, the teacher.
The plaintiff seeks general and special damages including interest and costs.

DEFENDANT'S DEFENCE

3.	The defendants defence is based on law. The defendants submit the pleadings are defective on two grounds:-

1)	It does not create a nexus to the State for the Court to hold the State vicariously liable for the actions of the fifth defendant, and;
2)	It does not plead how a duty of care is owed by the fourth defendant to the plaintiff.   

PARTIES EVIDENCE

4.	Counsel for the State objected to the affidavits of Benji Andia and her desk mate as they were minors at the time of deposing the affidavits and by Nepol Pole, that he is illiterate, and their affidavits should be struck out as they did not contain the certification required by Order 11 rule 22(3) of the National Court Rules. 
I overruled the objection due to lack of evidence of illiteracy and the absence in Order 11 rule 22 for certification on the affidavits of minors as Order 11 rule 22 as it currently applies, only requires certification of illiterate and blind persons’ affidavits.    

Plaintiff's evidence

5.	The plaintiff tendered 11 affidavits which were accepted into evidence as follows:- 

1)	Affidavit of Authority by Nepol Pole sworn 19 October 2009 and filed on 20 October 2009. (Document No. 17) marked ‘P1’,
2)	 Affidavit of Service of Section 5 Notice by Nepol Pole sworn and filed on 05 March 2008 marked ‘P2’,
3)	 Affidavit of Tess Wingi sworn 19 October 2009 and filed on 20 October 2009 (Document No. 18) marked ‘P3’,
4)	 Affidavit of Peter Wasen sworn 22 February 2010 and filed on 23 February 2010 (Document No, 19) marked ‘P4’,
5)	 Affidavit of Benjamin Andia sworn 22 February 2010 and filed on 23 February 2010 (Document No, 20) marked ‘P5’,
6)	Affidavit of Mala Aron sworn 22 February 2010 and filed on 23 February 2010 (Document No, 21) marked ‘P6’,
7)	 Affidavit of Toa Andia sworn 22 February 2010 and filed on 23 February 2010 (Document No, 22) marked ‘P7’,
8)	Affidavit of Anglyne Benjamin sworn 22 February 2010 and filed on 23 February 2010 (Document No, 23) marked ‘P8’,
9)	Affidavit of Pastor Hensen Andia sworn 22 February 2010 and filed on 23 February 2010 (Document No, 70) marked ‘P9’,
10)	Affidavit in support of Nepole Pole sworn and filed on 17 June 2016 (Document No, 70) marked ‘10’, and
11)	 Affidavit of Benji Andia sworn 24 March 2022 and filed on 28 March 2023. (Document No, 99) marked ‘P11’.

Affidavit of Benji Andia sworn 22 February 2010 and filed on 23 February 2010. (Document No. 20)

6.	Benji Andia is the injured student. Her evidence is that she is aged 16 years attending Boreboa Primary School in the NCD in 2006 doing grade 5. She is from Mamuane village, Pangia district, Southern Highlands Province.
Her evidence is that on 9 March 2006, she attended school and at about 10:00am she and her desk mate Anglyne Benjamin were taking notes from the blackboard when to her surprise a 500ml coke plastic bottle landed on her desk which was full of human urine. She states that there was no lid on the bottle and so upon the container landing on her desk, the urine spilled all over her face chest and lower parts of her body causing her school uniform to be wet with urine smell all over her.

She deposes to being embarrassed, frustrated, cried and walked out of the classroom followed by her desk mate. They were followed out by their teacher who took them to the headmistress office. The teacher and the head mistress comforted them and gave Benji Andia K6.00 and Anglyne Benjamin K4.00 and told them not to report the matter to their families.
Benji Andia deposes further that they left the headmistress office crying and walked to the school gate where they were stopped by the security guards to whom they explained their situation to. The security guards allowed them out of the school gate.

When she arrived home she reported the matter to her parents and over the following days of 10, 11 and 12 March 2006 she felt upset and did not attend classes. She then fell very sick which led to her contracting diarrhea mixed with blood and vomiting heavily leading to loss of stamina.
She states of being taken to Port Moresby General Hospital to determine her illness and being treated after a biochemistry test revealed her illness was caused by bacteria in her stool specimen. She was treated and was to be reviewed periodically. She attached the clinical notes and medical report about her diagnosis and the treatment of antibiotics and other medicines. The medical report dated 10 July 2007 states Benji Andia was brought into the hospital on 14 March 2006 presented with severe diarrhea, dysentery, abnormal cramps, nausea and dehydration. Biochemistry results revealed bacteria in her stool. The report attributed the cause of the illness to the spillage of urine that occurred at the school on 9 March 2007.

Affidavit of Anglyne Benjamin sworn 22 February 2010 and filed on 23 February 2010 (Document No. 23).

7.	Anglyne Benjamin is Benji Andia’s desk mate in class. Her evidence collaborates Benji Andia's evidence and confirms that the urine spillage also fell on her face and body and she felt embarrassed, cried as well and followed Benji Andia out of the classroom.
She also states that after the incident she did not see Benji Andia at school for a few days and when she enquired with Benji’s relatives, she was told that Benji Andia had fallen ill and was taken to the hospital. 

Affidavit of Pastor Hensen Andia 22 February 2010 and filed on 23 February 2010 (Document No. 24)

8.	Pastor Hensen Andia is the father of Benji Andia, he is a Pastor with the PNG Bible Church based at Waigani, NCD. His evidence is of Benji Andia reporting the school incident to him and his wife on 9 March 2006 and of her developing a sever illness. That on 14 March 2006 Benji Andia was taken to Port Moresby General Hospital for medical attention after she fell gravely ill.
He states that he reported the matter to the Waigani Police Station on 14 March 2006 and on 23 March 2006 and that he along with others, attended a meeting with the representatives of the school to discuss his daughter’s injury.
He states that the teacher admitted to the wrong and the teachers apologised and offered K100.00 as compensation. He states further that as a token of appreciation to the teacher admitting the wrong, he gave K10.00 to the teacher.
He states that at the conclusion of the meeting, he informed the school that he will be seeking damages in court for the harm inflicted on his daughter. 
He attached the medial notes and his letter authorising Nepole Pole to act on behalf of his daughter as he was being transferred to Alotau in Milne Bay Province.

Affidavit of Toa Andia sworn 22 February and filed on 23 February 2010. (Document No.22)

9.	Toa Andia is Benji Andia’s mother. She confirms that on 9 March 2006 Benji had gone to school in the morning but had arrived home around 10:30am looking distraught and crying. She sensed that something bad had happened to Benji Andia. She states she and Benji's father were informed by her of the incident she suffered at school by the teacher.
She took Benji Andia to Port Moresby General Hospital when she fell ill and accompanied Benji's father to the meeting with the representatives of Boreboa Primary School.

Affidavit of Benji Andia sworn 24 March 2023 and filed 28 2023.

10.	Benji Andia provides evidence of her current living status of being unemployed and still living with her parents as a result of the incident she suffered in grade 5. She deposes to being traumatised and to withdrawing from school as a result. That the incident scared her. She compares her current status to her younger sister and says while her sister has moved on in life by being married with two children, she remains with her parents and in despair at times. 

Affidavit of Tess Wingi sworn 19 October 2009 and filed on 20 October 2009 (Document No. 18) ‘P3’

11.	Tess Wingi is an uncle to Benji Andia, his evidence collaborates her father Pastor Hensen Andia's evidence of the meeting by the family with the school representatives and the exchange of payment.

Affidavit of Peter Wasen sworn 22 February 2010 and filed on 23 February 2010 (Document No. 19)

12.	Peter Wasen is the school security guard whose duty is to guard the school gate to ensure students are kept on the school premises until the school period ends. His evidence is that while he was manning the gate with another guard, both students Benji Andia and Anglyne Benjamin approached the gate.
He observed that both students were crying with their faces wet from tears. He inquired and was informed about the incident involving the urine in the 500ml plastic coke bottle. His evidence is that he smelt a strong smell of urine coming off from the girls bodies and was satisfied with their story so he allowed them out the school gate.

Affidavit of Mala Aron sworn 22 February 2010 and filed on 23 February 2010 (Document No.21)

13.	Mala Aron is the other school guard that was with Peter Wasen when Benji Andia and Anglyne Benjamin approached them. His evidence collarborates  Peter Wasen's  evidence.

Affidavit of Authority by Nepol Pole sworn 19 October 2009 and filed on 20 October 2009 (Document No 17) ‘P1’.

14.	Nepol Pole deposes to being the uncle of the student and minor, Benji Andia. His evidence is that he is authorised by Benji Andia's father Pastor Hensen Andia, to file this proceeding on behalf of his daughter as her father would be transferring to the PNG Bible Church in Alotau.  

Affidavit in Support of Nepole Pole sworn and filed on 17 June 2016.

15.	Nepol Pole is the plaintiff bringing the claim on behalf of the minor, Benji Andia. He deposes to the amendments done to the writ of summons and also states that the State had viewed the claim to be genuine and had considered out of court settlement at one stage in 2014 but that had not eventuated.

Affidavit of Service of Section 5 Notice by Nepole Pole sworn and filed on 05 March 2008 (Document No. 07).

16.	This affidavit contains evidence of prior notice of the suit being served on the State in accordance with Section 5 of the Claims By and Against the State Act 1999.

Defendant's evidence

17.	The defendants did not adduce any evidence but made submissions on law.

View on evidence

18.	The evidence of the plaintiff is uncontested, corroborated by relevant witnesses and I accept it as credible evidence of what transferred to Benji Andia, at school and after.

ISSUES

19.	The cause of action is based on negligence with the trial conducted by affidavits on liability and assessment of damages. 
The issues on liability concerns whether the: -

1) pleadings are defective, or
2) the defendants owed a duty of care to the student.

The issue of damages concerns whether the plaintiff is entitled to the damages claimed.

LAW

On liability 

20.	The law on liability pertaining to the tort of negligence has been discussed in many caselaw and is suitably clarified by His Honour Justice Cannings in Tirima v Angau Memorial Hospital Board [2005] N2779 who explained the elements of the tort of negligence as follows:-

1)	the defendant owed a duty of care to the plaintiff or to the person in whose stead the plaintiff is suing; 
2)	the defendant breached that duty, ie by act or omission the defendant’s conduct was negligent;
3)	the defendant’s negligent conduct caused injury to the person;
4)	the person’s injuries were not too remotely connected to the defendant’s conduct; and
5)	the plaintiff or to the person in whose stead the plaintiff is suing,  has not contributed to his or her own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury."

21.	In terms of the law on teacher-student relationship, the close proximity of the teacher-student relationship indicates the teacher would have reasonably foreseen harm resulting from a failure to take care. See Donoghue v Stevenson (1932) AC 562. There exists a prima facie duty of care by a teacher to the student because of the teacher-student relationship. 

In Richards v State of Victoria [1969] V.R. 136 (F.C.) at pp138-9, the Australian Court commented on the duty of care of a teacher or school to its students, that:- 
"The reason underlying the imposition of the duty would appear to be
the needs of a child of immature age for protection against the conduct
of others, or indeed, of himself, which may cause him injury coupled
with the fact that, during school hours the child is beyond the
protection and control of his parents and is placed under the control of
the schoolmaster who is in a position to exercise authority over and
afford him in the exercise of reasonable care, protection from injury."

This duty of care would apply to students while they are within the school grounds during recess or before classes started. 

22.	The standard of care in common law is that of a careful parent with the teacher standing in loco parentis or in place of a parent. The test derives from the nineteenth century case of Williams v Eady (1893) 10 TLR 41 where the Court defined the standard as:

“ the careful schoolmaster is bound to take such care of his boys, as a careful father would take of his boys.”

Later in Ricketts v Erith Borough Council [1943] 2 AII ER 629 the standard of care was expanded to that of a careful parent with a large family. 

23.	However, this position was held by Australian Courts to be not applicable where the school was a large school with hundreds of students and instead held that the test would be of the school or the teacher taking reasonable measures to prevent injury to a student.

That for public schools the commonwealth was vicariously liable as the teacher's employer, however for private schools the common law principle of a careful parent may apply because of the private contractual nature of the enrolment of the student with the school. See Re Roldano Introvigne By His Next Friend and Father Tarcisio Introvigne v the Commonwealth of Australia; Bunning and Madden; Bunning and Madden (A Firm) [1980] FCA 107; (1980) 48 FLR 161 and Richards v. State of Victoria [1969] V.R. 136 (F.C.).

24.	In terms of establishing the standard of care, where there exist common standards in the school or legislation, its breach would be evidence of breach of the standard of care.
 
25.	However, in our jurisdiction, the Supreme Court in Tom (by his next friend Tom Amori) v The Independent State of Papua New Guinea [1999] SC609, adopted and applied the common law test of a careful parent to overturn the National Court's decision against liability concerning an eye injury caused to a student by a person outside the school boundary fence. The Supreme Court held that the school had a high standard of care for the student whether in the classroom or the school playground.

26.	In Baduk v The State, Umba and Waigani Community School Board of Management [1993] PNGLR 250, the National Court applied the test of a careful parent and held that "During the hours of instruction, a greater degree of supervision is required than hours of recreation."  

27.	The line of authority in Australia about the duty of care in my view does not apply in light of the Supreme Court decision in Tom (by his next friend Tom Amori) v The Independent State of Papua New Guinea, which I am bound to apply. 

The common law test of a careful parent is maintained and applied in our jurisdiction. A high duty of care is imposed on schools and teachers to supervise students whether they are in the classrooms receiving formal instructions or outside in the school grounds. The teacher and school stand in loco parentis. 
  
28.	As to the pleadings, the State took issue with the plaintiff not pleading how the duty of care arose, however I consider the arguments are not relevant as the law is clear, while a student is in school, the school has a duty of care to the standard of a careful parent while the student is at school. The evidence confirms the incident occurred at the school during normal school hours.

29.	As to vicarious liability, I agree with Mr Gama that the many caselaw point to specific pleading of Section 1(1) or (4) of the Wrongs (Miscellaneous Provisions) Act (WMPA) which require the aspect of vicarious liability be pleaded to create a nexus to the State. 

The amended statement of claim filed 11 March 2015 does plead the WMPA and CBASA and in my view properly pleads the case of the State being vicariously liable for the teacher and school 's actions or omissions as their employer.
The pleadings show that the incident occured in the classroom where both the teacher and the students were in class, when the teacher kicked the 500mil plastic bottle filled with human urine towards Benji Ande which poured on her face, chest and body.

The evidence proves the allegations in the pleadings. It is clear that an inhuman act occurred to the student while at school during formal hours of instruction, and by the person trusted with the care of the student.

30.	It would be unjust to ignore the vicarious liability of the State from the actions of its employees when there is adequate evidence to prove the negligent and careless actions of the teacher as alleged by the student, Benji Andia. This Court is mandated by the Constitution to administer justice and ensure justice is done in the circumstances of a case. See sections 155(4) and 159 of the Constitution. See Yakasa v Piso [2014]  SC1330. 

Therefore, the arguments by the State about the pleadings being defective are disregarded.

Conclusion on liability

31.	The teacher is in a position of trust to a student and while the students are in school, it is the responsibility of the school and its teachers to ensure the safety of students. While the ratio of teacher to student in our public schools may be disproportionate to other comparable countries or the state of the school facilities not maintained, the standard of care of a careful parent is a much higher standard than the Australian standard to take reasonable care to ensure the students are not harmed. There is a higher degree of care required by our Courts of a teacher and the schools to their students.

There are some cases in our jurisdiction where the school and the State has been held negligent and liable for negligence in schools  such as, where a student was injured in the eye by another student in the classroom during lunch time, see Melinda Baduck v The State & Ors [1993] PNGLR 250 or during a programmed school activity of collecting rubbish on the school grounds before the first class, see Tuba v The State [1997] N1581.

32.	In this case, the teacher was in very close proximity to the student and inside the classroom during normal school hours and is expected to foresee the consequences of her action. The teacher has not tendered any affidavit to explain what caused her to kick the bottle of human urine, but it nevertheless, does not discount the high degree of care the teacher has to students and especially in the classroom where, she is expected to teach.

33.	A careful parent would not kick a bottle of urine to their child, instead a careful parent would find out how the bottle got into the room, take appropriate action depending on the child's response which may include scolding and disposing of it appropriately. This type of conduct would be most unusual from a careful parent towards his/her child.

34.	I find there is sufficient evidence on a balance of probabilities to prove that the fifth defendant's action was reckless, disgraceful and done with disdain or contempt for the students in her care and to intimidate and humiliate the students. Mrs Wari ought to have known and understood that the act of kicking the bottle would result in its unsanitary contents spilling and pouring on one or more of her students causing them humiliation and harm. Her action was without care and regard for the dignity of her students, highly inappropriate and negligent. 

35.	I make the following finding on liability regarding the elements of the tort of negligence:-

1)	the fifth and first defendants owed a duty of care of a careful parent to Benji Andia because of their relationship as teacher – student.
2)	the second, third and fourth defendants vicariously owe a duty of care to Benji Andia because they are the employers of the teacher.
3)	the defendants breached that duty when during normal school hours and teaching time in class, the fifth defendant without due care and regard for the human dignity of the students that she teaches kicked the 500mililitre plastic bottle containing human urine towards Benji Andia and her deskmate which spilled and poured on her face, chest and body causing harm.  
4)	the defendants negligent conduct caused injury to Benji Andia who fell ill and sought medical treatment for her physical illness and emotional distress;
5)	That Benji Andia's physical illness and emotional distress are not remote and a direct consequence of the teacher's conduct who is expected to reasonably foresee the consequences of her actions due to their close proximity; and
6)	The evidence does not show that Benji Andia contributed to her injuries when her evidence is that she sat at her desk copying the teacher's notes from the blackboard, as any other student should be doing in class. 

36.	I am satisfied the plaintiff has proven its case on a balance of probabilities that the duty and standard of care to Benji Andia, has been breached and negligence had occurred. The defendants are liable either directly or vicariously for the negligent actions of the fifth defendant.

37.	It is therefore my judgement that the defendants are directly and vicariously liable to Benji Andia for their negligent actions and omissions. 

ASSESSMENT OF DAMAGES

38.	The law in assessing damages is well settled and provides that the Court can do the best it can to assess damages where evidence is wanting. See  Mel v Pakalia (2005) SC790. The plaintiff seeks general damages for emotional distress, constitutional breach, exemplary damages plus interest and cost.

General damages for pain and suffering

39.	General damages are intended to compensate and put the injured person as nearly as possible in money terms in the same position (s)he could have been had they not suffered that injury by the negligent actions or omissions of the tortfeasor. Compensation is not a reward to the plaintiff nor to penalise the tortfeasor but to right a wrong as nearly as possible in money terms. See Gunambo v Upaiga [2010] N3859 at [14] and Yambaki v Namues [2022] N9983 at [161].

40.	Here the plaintiff was a grade 5 student in primary school with a lot more years of schooling to do. This incident would have adversely affected her outlook on teachers and schooling. The evidence from Benji Ande is that she was ill, ashamed, frustrated and did not attend school for several days after the incident. When she attended school, she was transferred to another class, which is a good mitigating factor by the school, but the student would still be among her former classmates and the teacher while at the primary school. This in my view would have adversely affected Benji Ande's future educational interests.

I consider this an important factor in considering an appropriate award of general damages which intent is to restore her as nearly as possible to her original position. To me restoring her would mean this Court considering that in normal circumstances she would have a chance, as any other student, of continuing and completing her education. This would include educational expenses and potential educational outcomes of a job in later years. Benji Andia’s recent evidence is that the incident left her traumatized, she withdrew from school and did not complete her formal education. That it affects her current living status. 

However, her evidence is not supported by any psychology report nor corroborated. She did depose in her earlier affidavit to continuing school and being transferred to another class when she returned to school some days after the incident and being with her parents in Alotau, she would have completed her formal education in Alotau in a new school and province.

So, I take Benji's evidence of her present situation with some skepticism and in applying the law to do the best I can to assess damages,  I partially consider this evidence in awarding damages for future loss.

41.	In considering comparable awards, I consider the cases of  Baduk v The State and Tuba v The State where an award of K35,000.00 and K20,000.00 was awarded as general damages for injury to the eye and observe that these awards were made in 1993 and 1997 which is between 31 to 27 years ago. In both cases the eye of the student was affected severely with one losing an eye and the other with 84% poor eyesight. There are no similar cases to that of the plaintiff's. The plaintiff is seeking K20,000.00  

42.	Given the negligent action occurred in the classroom, was unprovoked and by the teacher, who has a high standard of care in loco parentis as a careful parent, and my finding about the reckless and inhumane treatment, I consider a higher amount in general damages is warranted, then the amount sought of K20,000.00.
Students in all schools and especially in public schools must be treated with dignity and instilled with good values by the teachers leading by example.
I also consider Benji Andia's evidence about the effect the incident had on her attitude to school and as a consequence to an extent potentially her continuous education.

43.	Damages for emotional and mental distress are awarded as part of general damages with stress and humiliation pleaded sufficiently. See Wereh & Ors v Wamuk [2023] SC2487.

I also take into consideration the principle that general damages are intended to compensate an injured party for the harm done and not as a reward or to penalise the defendants, therefore, I consider that the emotional distress and  humiliation to Benji Andia, of a severe nature, given the harm occurred in the classroom and in front of her classmates during hours of tuition. Students are immature, and feelings of distress would be more severe and irrational than in mature adults. The physical harm resulted in her illness and treatment meant the urine splashed into her internal organs and could have had grave consequences.

44.	Given all these considerations, I consider an award of K50,000.00 in general damages appropriate.

Exemplary damages

45.	While the State is excluded from this award by the CBASA, the first, second, third and fourth defendants are responsible directly for the proper management of the public or government school system particularly Boreboa Primary School. Exemplary damages are awarded to punish and deter negligent practices in schools by teachers. Those responsible for allowing this negligent action to occur without being accountable by submitting to the Court process to defend themselves or undertaking mitigating actions to provide relief to the student at the time it occurred, must be held accountable. 

The school board and the Secretary for Education have duties to discipline teachers and manage their conduct under the Teaching Services Act and the Education Act. They have not filed any evidence to indicate what actions they took to discipline the teacher or what processes they have in place to deter such actions or inactions in the school. I award exemplary damages of K4,000.00 against them as a punishment and to defer such future negligent actions from occurring in schools. I consider the amounts to be within the first and second defendant's respective financial delegations to pay. 

I award exemplary damages of K4000.00 to be paid jointly or severally as follows:-

First defendant K1000.00
Second defendant K1000.00
Fifth Defendant K2000.00  

Constitutional breach

46.	Benji Andia seeks damages for breach of constitutional rights under section 58 of the Constitution for infringement of freedom from inhuman treatment (Section 36) and to the full protection of law (Section 37).

Section 37 guarantees every person full protection of the law. A student is in a dependent situation while at school in the care and supervision of the school and its teachers. While in that care, the laws of the country relating to the basic rights of all people including children, should be respected. This includes freedom from harassment, intimidation, fear and assault. 

I accept the evidence of the plaintiff and consider the action by the teacher a gross disregard of her pupil Benji Andia’s inherent dignity as a human being which degraded her and caused physical harm.

47.	The amened statement of claim included in the particulars of negligence, failure to respect the dignity of a human person which I accept as a sufficient pleading of infringement of the constitutional rights to freedom from inhuman treatment under section 36 Constitution.

48.	Benji Andia is entitled to the full protection of the law against inhuman treatment. Comparable cases on breaches of section 36 (1) Constitution are of physical assault and verbal abuse mostly by the police. Selan v State [2012] N4938, Kuefa v Sunku [2021] N8707, Gabien v Toloup [2012] N5244 and Basse v Yalamu [2021] N8707.

A case of relevance as it pertains to relationships in close proximity, is that of a defacto couple in Keoa v Keoa [2017] N6941 where the plaintiff sued the partner for physical and verbal assault infringing her rights under section 36 (1) of the Constitution. The damages awarded in Keoa v Keoa was K8000.00 for 8 occasions over a 4 year period, while in rest of the cases awards of between K1000 to K2000.00 were awarded.

The highest amount was awarded in Basse v Yalamu of K10,000.00 which concerned the police physically and verbally assaulting the plaintiff, a village councilor who was made to carry a gas bottle and marched with the rest of the village boys and detained for 10 hours.

Here, there is a higher standard of care expected from the teacher. The student, a minor, suffered emotional and physical harm. She was ill and hospitalised from the urine which is a grave matter.

This calls for a higher award and in that regard, I accept the plaintiff’s counsel’s submission for the amount of K10, 000.00 to be awarded.

INTEREST

49.	Interest for pre and post judgement is awarded at 2% per annum consistent with sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

I interpret section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 as imposing a maximum of 2% interest on debt, damages and contract claims when subsections (1), (2), (3) and (4) are read together.  The reference to the term 'proceeding' in subsection (2) refers to debt or damages claim mentioned in subsection (1) and contract or mercantile usage claims in subsection (2). Subsection (1) grants a general discretion to the Court to award interest on the whole or part of the damages for the whole or part of the period from when the cause of action arose to the date of judgement.

For post judgement interest, Section 6 grants discretionary powers to the Court to award a maximum of 2% post judgement interest where the State is the defendant.

50.	This case has taken 17 years to be tried. No reasons have been provided for the long delay to the trial. I consider delay a relevant factor and will not award post judgement interest. Instead, I exercise my discretion to award pre-judgement interest of 2% from the date of commencing this proceeding to the date of judgement.

The writ of summons was filed on 23 August 2007 to the date of judgement, 27 September 2024 is 6238 days or 17 years.  I consider 17 years an unusually long period and award 2% interest to half the time being, 8.5 years.  

Applying the interest formula in Dope v Malai [2012] N4574, of  D x I x N = A where:
D is the amount of damages assessed;
I is the rate of interest per annum;
N is the appropriate period in numbers of years;
A is the amount of interest.

K 64,000.00 x 0.02 x 8.5 = K10,880.00

I award pre-judgement interest at the rate of 2% per annum for eight and a half years on the damages award of K64,000.00 which is K10,880.00

COST

51.	Costs follow the event. Reasonable costs incurred for the proceeding are awarded to the plaintiff on a party/party basis to be paid by the State.

ORDER

52.      The formal orders of the Court are as follows:-

1)	 The defendants are liable directly and vicariously for their negligent actions and omissions to the minor, Benji Andia.   

2)	The plaintiff is awarded general and special damages totaling K74,880.00 comprising;

a.	General damages: K50,000.00 
b.	Constitutional breach: K10,000.00
c.	Exemplary damages: K4,000.00
d.	Pre- judgement interest: K10,880.00
e.	Post-judgement: No award for post judgement interest.

3)	Costs are awarded to the plaintiff to be paid by the defendants on a party/party basis, to be taxed, if not agreed.

4)	Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.

Orders accordingly,
________________________________________________________________
Rex Kasito Lawyers:	Lawyers for the Plaintiff
Office of the Solicitor General:	Lawyers for the Defendants