Niligur and infant by his next friend Ilias Niligur v The State [1997] PGNC 41; N1579 (14 April 1997)

Unreported National Court Decisions

N1579

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 752 OF 1991
GEORGE NILIGUR AN INFANT BY HIS NEXT FRIEND ILIAS NILIGUR - PLAINTIFF
V
THE STATE

Kokopo

Woods J
24 February 1997
14 April 1997

NEGLIGENCE - duty of care by school - personal injury by action of another pupil during a recess period - standard of care being that of a normal parent - realities of supervision during a recess period.

Cases Cited

Baduk v PNG [1993] PNGLR 250

Tom v The State (1996)Unreported N 1475

Rawsthorne v Ottley [1937] 3 All ER 902

Ricketts v Erin Borough Council [1943] 2 All ER 629

Counsel

S Tedor for the Plaintiff.

14 April 1997

WOODS J: The Plaintiff has brought this action by his next friend his father for damages for injuries he received when he was a student at Kokopo High School in 1990. On the 27th July 1990 at about 2.25 pm there was some confrontation in the school grounds between some students and during the incident a boy Jason Bale threw a stick at George Niligur and the stick struck George in the eye and George had to be taken to hospital and as a result of the injury lost his left eye. The incident happened during a recess period and just as the students were to return to the classroom for their afternoon study. There was some chasing behind the Grade 8 Block and this is where the incident happened.

Whilst there was a duty teacher for the period of that recess he was absent from the school at the particular time. It is clear that the incident did not occur during a normal school programmed activity but at the end of a recess period.

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 teachers failed to properly supervise and control the students and failed to provide and maintain a system of supervision and control to ensure that such an accident could not happen.

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 submits that at the time there should have been a system of supervision and control and that at the time of the incident whilst there was a teacher rostered on duty he had failed in his duty by absenting himself from the school at the time and therefore there was a clear failure to maintain the proper control. The lawyer refers 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 during all recesses.

It notes that this supervision is intended primarily to safeguard the welfare of all pupils, and also ‘activities of pupils are confined to those which are unlikely to cause harm’. Also ‘Adequate supervision of the conduct of pupils on the playground is essential and necessary arrangements should be made for the proper and adequate oversight of the playgrounds, buildings and toilets during daily recess’.

It is submitted that the absence of the duty teacher was a clear omission to comply with the normal and clearly stated requirements for proper supervision and because of this lapse the accident happened.

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.

I refer here to the case of Simon Tom v The State (1996) Unreported N1475 where a pupil was injured in the school grounds whilst coming back from the toilet. In that case Kapi DCJ discussed the authorities in a situation where the injury cannot be attributed to the very fact of non-supervision. The authorities refer to a duty of care being that of a careful parent.

In the case Rawsthorne v Ottley [1937] 3 A.E.R. 902 the Judge noted “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.” In another case Ricketts v Erith Borough Council & Anor [1943] 2 A.E.R. 629 the judge referred to the principle that “the duty of the defendants is that of a reasonably careful parent....I find it impossible to hold that it is incumbent to have a teacher continuously present in the yard throughout the whole of the break.... any child can get up to mischief if the parents or teacher’s back is turned for a short period of time”. In that case a pupil had returned to the playground and unseen by the teachers had discharged an arrow in close proximity to the infant plaintiff and as a result injured the eye.

In considering the above authorities Kapi DCJ noted that absence of supervision is itself not a breach of a 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 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. The only person responsible for the injury is the other pupil who did the act whereby a stick damaged the plaintiff’s eye.

I dismiss the claim.

Lawyer for the Plaintiff: S Tedor & Associates