Kumar v Bainivalu Primary School (Head Teacher) [2016] FJHC 17; HBC115.2011 (25 January 2016)

IN THE HIGH COURT OF FIJI AT SUVA
Civil Action No. HBC 115 of 2011

Between:

Pratik Akash Kumar
Plaintiff

And:

The Head Teacher, Bainivalu Primary School
First defendant

And:

The Permanent Secretary for Education, Ministry of Education
Second defendant

And:

The Attorney General of Fiji
Third defendant

Appearances: Mr Vinit Singh for the plaintiff
Ms K. Naidu with Ms S. Ali for the defendants
Dates of hearing: 1st and 2nd July,2014

Judgment

1. The plaintiff was born on 8th February,2004. He was a pupil at Bainivalu Primary School, Nakasi. On 18th February,2010, he sustained an injury to his left eye when he was hit by a stick thrown by a student during the lunch hour. In these proceedings for damages, the plaintiff, who sues by his father and next friend Pravin Kumar, alleges that the injury was caused by the negligence and/or breach of statutory duty of the defendants, their servants or agents. The defendants dispute liability and state that the Bainivalu Primary School was not a Government school, the administration of the school was vested in a management committee. The defendants state that that the plaintiff was in a prohibited area of the school and deny that the accident was caused due to their fault or their employees.
   
2. The statement of claim pleads the following particulars of negligence:
   
   1. Failing to exercise any or any proper supervision or control over the Plaintiff and the other children.
      
   2. Failing to provide safe school premises and/or to ensure that the said playground was such that the safety of the Plaintiff was reasonably assured, contrary to the Ministry of Education Policy in Occupation, Health and Safety in Schools and the Health and Safety at Work Act, 1996.
      
   100. Failing to have any staff to supervise children performing different activities during lunch time at the school playground contrary to the Ministry of Education Policy in Occupation, Health and Safety in Schools and the Health and Safety at Work Act, 1996.
        
   4. Failed to provide the Plaintiff immediate attention to the nearest hospital following the incident. The Plaintiffs case is that the Defendants, their servants or agents or both waited for nearly an hour for the Plaintiff's parents to arrive after knowing of the injury before transporting the Plaintiff to the Colonial War Memorial Hospital in Suva.
      
   5. Failed to provide proper first aid attention to the Plaintiff. The Plaintiff's case is that the student who caused the injury without supervision took the Plaintiff to the school tap area where he washed the Plaintiff's left eye causing the liquid in the injured eye to be washed off.
      
   6. Failing to provide proper first aid attention to the Plaintiff immediately after knowing of the injury. The Plaintiff's case is that the Defendants, their servants or agents or both had made him to sit on a desk in the school typist's room following the injury without regard to the fact that his eye was damaged and that he should have been made to lie down so that the eye content on the injured left eye does not seep out.
      
3. The statement of defence of the defendants states that:
   
   • The plaintiff was not playing in the playground, as alleged. He was throwing sticks with other students for star fruits. The star fruit tree was situated on a slope at the end of the school compound which was out of bounds for students. Notices were placed around that area to warn students that slopes were out of bounds for students.
     
   • "The alleged incident happened at lunch hour and there was a teacher on duty and students were supervised".
     
   • The plaintiff "sneaked to the other side of the compound with other students and this was clearly prohibited by the School.(He) did not adhere to the School rules and clearly disobeyed the teacher on duty who was supervising the students".
     
   • The teachers "provided all the necessary care and "took the child to hospital immediately... There was no delay in contacting the parents of the child and taking the child to the hospital".
     
4. The plaintiff, in his reply to defence maintains that he was playing in the school playground. There was no teacher present when the accident happened.
   

The determination

5. It is not in dispute that the plaintiff befell an injury to his eye during the lunch hour and lost the vision of his left eye.
   
6. The position of the defendants is that the plaintiff "sneaked" to the prohibited side of the school compound "and clearly disobeyed the teacher on duty who was supervising the students".
   
7. PW2,(Ravi Raj Sharma aka Pappu, a neighbour of the plaintiff and a student at the same school) corroborated the evidence of the plaintiff as to how the injury occurred. Two other boys were playing with sticks in the netball ground and a stick hit the plaintiff who was standing in the ground. He said that there was no duty teacher in the ground to supervise the students during the lunch hour. There were 300 students in the school. Children are allowed to play in the netball ground during the lunch hour.
   
8. PW2 said that he was told by PW3,(Sophia Tazneem Shah) to go and inform the plaintiff's mother PW4,(Ashika Devi). He told her landlord, as PW4 was not in.
   
9. PW1,(Pravin Kumar) said his landlord informed him that his son was injured. His wife, PW4 went to the school and found the plaintiff in the office. Nobody was wanting to take him to hospital.
   
10. PW3 was a friend of PW4. PW3 took her daughter and the plaintiff to school every day.
    
11. In evidence in chief, PW3 said that on 18th February,2010, she went to give lunch to her daughter. She was with the kindergarten teachers when PW2 came and told her at 12.10 pm what had happened. She told him to go and tell the landlord of PW1 and call PW4. The teachers did not call either of the parents in her presence. The teachers were not making arrangements to take him to hospital. They said that PW1 would take the plaintiff to hospital, as he had a taxi. PW4 came to school 45 minutes after the incident.
    
12. PW4 testified that she was informed by her husband at 12.30 pm that her son was injured. The school did not call her. When she went to the school, she found her son lying unconscious on the settee in the staff room. He was not taken to hospital by the teachers, as they did not have transport. The teachers asked her to call her husband to take the plaintiff to hospital. Finally, he was taken to CWM hospital at 1.30 pm by DW2,( Ramesh Chand, a Master at Bainivalu Primary School).
    
13. DW1,(Mere Tuisawau,a teacher at Bainivalu Primary School) explained that the teachers have lunch with the children from 12 to 12.15pm every day. At 12.15pm, the children go outside for another 15 minutes. The duty teacher stands outside and supervises the children going to the canteen and toilet. She said that "the teacher on duty is always around".
    
14. DW2 said that every week one duty teacher is assigned for the overall supervision of the children. On the day of the incident, Mrs Vulaca, a duty teacher was supervising the 300 students in the lunch hour. The children were not supposed to play between 12 and 12.30pm. They were allowed to play only during PE time.
    
15. DW2 said that it was very difficult for one teacher to supervise all 300 students of the school in a large area. In cross-examination, he said that it depended on the ability of the particular teacher.
    
16. DW1 said that she was told by other students that the plaintiff and other children were in a forbidden area outside the boundaries of the school, on a slope near the netball ground where there was a star fruit tree. One student was climbing a tree and trying to pluck fruit. The area was bushy, swampy and not fenced. She said it was "all open".
    
17. In cross-examination, DW1 said that there was "no physical boundary to say where not to go".
    
18. DW2 corroborated DW1's evidence that out of bound areas were not fenced.
    
19. DW1 and DW2 said that the children were not supposed to play at that time. "Out of bound" areas were shown to students during the orientation period and clearly marked with signs in English.
    
20. When it was put to DW2 in cross-examination that school children could not read notices in English, he said that children were reminded of the school rules during the week. Announcements were made in all three languages: English, Fijian and Hindustani.
    
21. DW1 said that she sent the plaintiff with another student and told him to wash his eye at the tap. She could not see any "visible injury". The plaintiff's eye was closed with his hand. She said that she did not have any formal training in administering first aid. There was one teacher so trained. When a student gets injured, the school inform the parents in the first instance. If the parents approve, the child is taken to hospital.
    
22. DW2 too said that there was no visible injury. There was nothing sticking out from his eye. It was normal, not swollen. He was not given first aid treatment at school. In re-examination, he said that there was a blister. He said that the duty teacher Mrs Vulaca called PW4. He went to the hospital with the plaintiff, after PW4 came to school.
    
23. The defence did not call any evidence to support the testimony of DW1 and DW2 that there was a duty teacher supervising the students when the incident occurred. The duty teacher Mrs Vulaca said to have been supervising was not called to testify.
    
24. I found the evidence of DW1 and DW2 to be contradictory. If a teacher was on duty, the children would not have played with sticks, as stated by PW2, in answer to a question posed by Mr Singh, counsel for the plaintiff. Nor would they have been playing in a prohibited area.
    
25. DW1 said that she was informed by other students that the plaintiff was playing in a prohibited area. Mr Singh quite correctly objected to her giving hearsay evidence, since that position was not put to any of the plaintiff's witnesses nor were any of the other students called to give evidence.
    
26. I accept the evidence of PW2 and the plaintiff,(PW6) that they were playing in the netball grounds, and there was no teacher supervising the students as testified by PW2.
    
27. At this point, I would refer to the "POLICY IN OCCUPATIONAL HEALTH AND SAFETY IN SCHOOLS", as produced in evidence by the plaintiff provides as follows:
    

Children love to play outside, make your playground safe for them to play...

8. Always supervise children when they play.

(emphasis added)

28. Clause 5.9.13 of the Policy titled "Supervision" reads:
    

Supervision is an important means of ensuring the observance of safety measures in schools, at all the time and in all situations. Whenever an accident is likely to occur, head teachers and principals are required to arrange for adequate supervision of students. This includes supervision during morning recess, lunch, during all laboratory and workshop sessions.(emphasis added)

29. Stephen J in Geyer v Downs, [1977] HCA 64; 138 CLR 91 at pg 92 said:
    

Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it. So it was that Winneke C J in Richards' Case ([1969]VR., at pp.138-139) said of a school master that:

"The reason underlying the imposition of the duty would appear to be the need 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 control and protection of his parent and is placed under the control of the school master who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury."

(emphasis added)

30. In Amnish Chandra & Ors, (Civil Action No. HBC 0135 of 2000L) as referred to in the closing submissions of the plaintiff, Singh J cited the above passage and Lyons J in Ranji Roshendra Lal vs Jainendra Singh & Ors, (HBC 225 of 1996) as follows:
    

"Young children of that age have neither the maturity or sense of responsibility to regulate their own behavior or that of each other. They also lack the mature insight to enable them to assess the dangers and consequences of any mischievous or raucous behavior. They are surely like the metaphorical "barrel-load of mischievous monkeys." They need adult or at least mature supervision. In this instance the defendants admit that they did not get it.

It is self evidence and entirely foreseeable that mischief, lack of self control, over exuberance or simple innocent childish excitability could well lead to a situation where injury or damage could result."

(emphasis added)

Singh J concluded:

In other words young children need supervision to protect them from the consequences of their own behavior and also from behavior of other children. Young children left unsupervised can fight ....

So the position is that because of the immaturity of children, the teachers owe a duty of care to protect them by providing adequate supervision depending on age of children and type of activity being conducted and the numbers involved.

.I therefore conclude that the second defendant failed to provide the standard of supervision which the circumstances warranted. He was too far away and his attention was not focused on the children. I find there was a breach of the duty of care, which the school owed to the students. I do not lose sight of the fact these were class 6 students, aged about 12 years and therefore quite immature

to realize the consequences of their own follies. Children of this age would need a far more intrusive supervision than that provided by a teacher 20 meters away.(emphasis added)

31. The plaintiff was engaged in the normal behaviour of a child of six years, playing in the grounds when his eye was hit with a stick by another student of the school. The defendants have failed to demonstrate that the plaintiff was culpable or that his behaviour was anything other than that of a child of his age.
    
32. It was the duty of the first defendant, the Head teacher of the school to ensure that a duty teacher was on roster to supervise and take care of the students. That, he failed to do.
    
33. In my judgment, there was a breach of duty of care on the part of the first defendant.
    
34. The plaintiff also alleges that the school did not have adequate first aid equipment and the teachers failed to take the plaintiff to hospital immediately.
    
35. The evidence of PW2, PW3 and PW4 that the plaintiff's eye ball was sticking out, was confirmed by Dr Saha,(PW5,Chief Medical Officer, Ophthalmology at CWM hospital). Here again, the evidence of DW1 and DW2 that there was no visible injury was false.
    
36. PW3 and PW4 said that the school teachers were waiting for the plaintiff's father to take him to the hospital. It was after PW4 arrived at the school 45 minutes later that DW2 took him in his car to CWM hospital.
    
37. DW1 said that she told the plaintiff to wash his eye at the tap. DW2 admitted in cross-examination that no first aid treatment was given to the plaintiff
    
38. PW5, in evidence in chief said that an eye pad should have been placed in the first instance, and the plaintiff should have been taken to hospital immediately. He said that an eye pad is ordinarily, contained in a first aid box.
    
39. In my view, admittedly no first aid treatment was provided by the school to the plaintiff. Next he was not taken immediately to hospital, as the teachers were expecting his father to do so.
    
40. In my judgment, the Head teacher was negligent in not ensuring that proper first aid was available in school, instructing the teachers to administer first aid and take students who meet with an injury to hospital immediately.
    
41. I now move on to the contention at the forefront of the case for the defence is that "the Bainivalu Primary School was managed or controlled in its day to day affairs by the government", as stated in the first issue raised at the pre-trial conference.
    
42. The statement of claim avers that the Bainivalu Primary School was "aided and administered" by the defendants. The defendants in their statement of defence denied that it was a Government school and the "administration of the school was duly vested with its controlling authority, which is not the Government".
    
43. The burden of establishing that the Bainivalu Primary School was administered by the defendants was on the plaintiff. No evidence whatsoever was led by the plaintiff on that point.
    
44. On the contrary, I find the documentary evidence provided by the plaintiff establishes that there was in fact, a school committee at the time the plaintiff enrolled in the school.
    
45. I refer to the form titled " STUDENTS BIO DATA" produced by PW4 and signed by her on 21st January, 2008.
    

PARENT-MANAGEMENT AGREEMENT

I Ashika D.Kumar AGREE TO PARTICIPATE IN ALL SCHOOL ACTIVITIES AND FUNDRAISING APPROVED BY THE COMMITTEE MANAGEMENT.

46. The plaintiff relies on the evidence of DW3,(Mr Jope Bukacaca, Head Teacher of Bainivalu Primary School) that there was no management committee when he joined the school in 2012.
    
47. DW3, in evidence in chief said that when he assumed duties at the school in 2012, there was no management committee.
    
48. DW3 joined the school in 2012. His evidence was on the position in 2012, not when the incident occurred on 18 February,2010.
    
49. DW2 said that the school committee was responsible for the day to day management of the school.
    
50. I am satisfied that the Bainivalu Primary School was managed by a school committee.
    
51. But that is not the end of the matter. The question that remains to be considered is whether the duty to ensure the safety of the students and take proper steps in the aftermath of an injury, fell within the purview of the school committee.
    
52. The closing submissions filed on behalf of the defendants argue that the "responsibility lies with the school management whether proper OHS procedure were in place, followed".
    
53. I turn to the evidence.
    
54. DW3, in evidence in chief spelt out the functions of the management committee. His evidence reads as follows:
    

Q. What are the functions of Management Committee?

A. To ensure the Bainivalu Primary School is to provide infrastructure

re safety of children.

Q. Where does the financing come from?

A. School fees and grant from Ministry of Education.

Q. Does school have a policy on Health and Safety given to teachers?

A. Each teacher is given the health and safety procedures.

Q. Whose responsibility to ensure that the health and safety procedures

are done?

A. The responsibility of Head Teachers.

Q. Who appoints the Committee?

A. At AGM by parents and teachers and existing Management Committee

chaired by Management of School.

Q. Who is the Manager of School?

A. T Chand Singh, old scholar, chosen by Ministry of Education to be

Manager. The Head Teacher represents Ministry of Education to assist

Committee.

Q. No fencing on school and students out of bound. Who would decide?

A. The Management Committee decide to fence.

(emphasis added)

His cross-examination on this point is as follows:

Q. What is role of the Committee re expenses.

A. To address the financial needs of day to day basis of school operation,

for budget.

Q. Such as the expenses of window broken. Is a meeting convened to

repair windows?

A. Yes.

55. The evidence clearly establish that the responsibility of ensuring that health and safety procedures was followed lies with the Head Teacher. The role of the school committee was limited to financial matters. Clearly the safety of students did not fall within the purview of the school management committee.
    
56. In any event, as Mason J stated in The Commonwealth v Introvigne, [1982] HCA 40; 150 CLR 258 at pg 270 citing Denning L.J. in Cassidy v. Ministry of Health,[1951] 2KB 343 at pg 363 as referred to in the closing submissions filed on behalf of the defendants "the duty to ensure that reasonable steps are taken for the safety of the children,.. cannot be delegated".
    
57. In my judgment, the first defendant is liable for the failure of the school teachers to supervise the students, administer proper first aid treatment and take the plaintiff to hospital immediately.
    
58. The Ministry of Education employs and pays teachers their salaries, including the Head teacher. It follows that the second defendant is vicariously liable for the negligence of the first defendant.
    
59. The plaintiff claims general damages under the following heads: pain and suffering; loss of amenities; loss of earning capacity; loss of future earnings, nursing care and interest.
    
60. The medical report of 5th March,2010, issued by PW5 provided that:
    

According to records above named patient was admitted in the CWM hospital from 18/02/2010 to 26/2/2010 with the history of left eye injury by a throwing stick from the school. He was brought to the A&E by his parents at 1.17 pm on 18/02/2010 and from there he was referred to the Eye Department to manage his condition.

On examination of his eye in the Eye Department it was found that there was a badly lacerated sclerocorneal injury at the upper limbic area of left eye extending from the 10'oclock position to 2 o'clock position. Some of the content of the eyeball was hanging outside the eyeball (Vitreous and Uveal tissue). His eye was sunken due to loss of the content of the eyeball...

..his eye injury was repaired after excision of prolapsed vitreous and uveal tissue under G/A ..

He was last seen in the Eye Department on 02/03/10 and it was found that his injury was healing satisfactorily but there was no perception of light in that eye like previous examinations due to loss of content of the eyeball. This loss of vision was expected..

Patient still need to continue to review in the Eye Department. (emphasis added)

61. The Medical Report of 31st December,2012, issued by Dr Jai Narayan, Consultant Opthalmologist, CWM hospital stated:
    

The left eye was severely damaged with loss of some content of the eyeball.

The eye was repaired but the position of visual gain remained very unfavourable.

Upon subsequent follow up it has been found that the left eye with no perception to light has remained blind.

The Report concluded that the plaintiff was 40% permanently incapacitated.

62. PW1 said that the plaintiff did not go to school for one year. His eye was bandaged for six months. He said that he would have been in class 5, if not for the injury. PW1 and PW4 said that he cannot read properly and play. Children tease him. His marriage prospects were affected. This evidence was not challenged in cross-examination.
    
63. In my judgment, the plaintiff is entitled to general damages for pain and suffering, loss of amenities and earning capacity.
    
64. The closing submissions of the plaintiff claims a sum of $ 150,000 as general damages. Mr Singh has drawn my attention to comparable awards for loss of sight.
    
65. In Amish Chand v Sudhakar Chandra & Others,(supra) the plaintiff lost sight to his left eye. He was awarded a sum of $100,000.00 comprising $40,000 for pain and suffering($15,000 for past and $25,000 for future) and loss of amenities and $ 60,000 for loss of earning capacity. The award was made 11 years ago.
    
66. In that case, Singh J commented as follows on the factors to be considered relating to marriage prospects and job attainment, in the aftermath of such impairment being suffered by a child:
    

Given the loss of an eye, his prospects on the marriage market are severely handicapped. I am conversant with the cultural ways of Fiji Indians who enquire into minute details before allowing their daughters to get married. The defence has submitted that there should be no award for loss of amenities. I say 'Res Ipsa'. Loss of eye would obviously result in some loss of amenities of life and cause handicaps as in crossing roads or bumping into people to his left in markets and busy streets. Additionally the defendants submitted that loss of earning capacity should not be seriously considered as the plaintiff was an average student and his other siblings have not progressed very far. I consider such submissions lack sympathy and are unkind to the plaintiff. There is no reason why an average student cannot progress to high school and to one of the tertiary if not to the university. That prospect has been cut short for him. His ability to compete in the labour market would be impaired by the loss of the eye.(emphasis added)

67. In Vinita Mala Chand v Vinod Patel & Ors, (Civil Action No. HBC 255 of 2000) the plaintiff also a student, lost sight of her right eye. She was awarded $40,000 for pain and suffering($15,000 for past and $25,000 for future) and $60,000.00 for loss of earning capacity. The award was made 8 years ago.
    
68. Returning to the case before me, the plaintiff was 6 years of age when he lost the vision of his left eye. He had to undergo eye surgery. He was eight days in hospital. His eye was bandaged for 6 months. He has been subjected to indignities. PW5 said that his right eye has to be taken care of. He lost one year of his education. His studies, future employment and marriage prospects have been affected.
    
69. In my judgment, a sum of $ 56,000 for pain and suffering($23,000 for past and $ 33,000 for future) and $68,000.00 for loss of earning capacity totaling $124,000.00 would be an appropriate award together with interest at 6% from 28th April,2011,( date of service of writ) to date of trial.
    
70. The plaintiff claims special damages in a sum of $65 for travelling and medical expenses from the date of his injury.
    
71. I am satisfied from the medical evidence that the plaintiff had to be taken fortnightly to hospital for six months and thereafter, for a monthly review for a period of four months until 31st December,2012.(the date of the final medical report).
    
72. In Narendra Kumar v Sairusi Drawe, 36 FLR 90 at page 95 Palmer J stated:
    

Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts.

73. I hold the plaintiff is entitled to expenses incurred in respect of two visits made fortnightly to hospital for a period of six months and a monthly visit for a period of four months totalling $ 1040[2 x ($65 x 6 ) + 1 x ($65 x 4 )].
    
74. The plaintiff has claimed interest.
    
75. Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum:Pickett v British Rail Engineering Ltd, (1980) AC 136 at 137.
    
76. In Jeffords and another v Gee,[1970] EWCA Civ 8; (1970) 2 WLR 702 at 703, it was held that "in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate".
    
77. In the exercise of my discretion under section 3 of the Law Reform (Miscellaneous) (Interest) Act, (cap 27), I award interest at 6% per annum on general damages of $ 124,000.00 from 28th April,2011, to 1st July,2014, and 3 % per annum on special damages on the sum of $ 1040 from 18th February,2010, to 1st July,2014. The closing submissions of the plaintiff claims post judgment interest. Post judgment interest cannot be awarded against the State, as provided in section 4(3) of the relevant Act.
    
78. Orders
    

(a) I make order that there shall be judgment for the plaintiff against the first and second defendants in a sum of $149,358.00 made up as follows:

(i)	General damages	124,000.00
(ii)	Interest on general damages	24,180.00
(iii)	Special damages	1040.00
(iv)	Interest on special damages	138.00
	Total	$ 149358.00

(b) The sum of $ 124,000.00 shall be deposited in an interest bearing account of the Chief Registrar, until the plaintiff reaches the age of 18 years. The plaintiff shall be entitled to the interest on that sum.

(c) The plaintiff shall be entitled to the awards in (ii),(iii) and (iv) above.

(d) The first and second defendants shall pay the plaintiff costs summarily assessed in a sum of $ 3000 .

25th January,2016

A.L.B.Brito-Mutunayagam
Judge