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Baduk v Independent State of Papua New Guinea [1993] PGNC 53; [1993] PNGLR 250; N1173 (1 July 1993)

N1173

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MELINDA BADUK BY HER NEXT FRIEND LOIS BADUK

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;
JOE UMBA BY HIS NEXT FRIEND WILLIAM UMBA; AND
WAIGANI COMMUNITY SCHOOL BOARD OF MANAGEMENT

Waigani
Konilio J

20 August 1992
1 July 1993

NEGLIGENCE - Duty of care to school child in classroom - Standard of care.

DAMAGES - Assessment of - General damages.

Facts

The plaintiff and 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 plaintiff claimed damages for injury sustained, alleging negligence on the part of the first and third defendants caused by the inadequate supervision of the class teacher.

Held

1. The plaintiff was owed a duty of care by the class teacher, who was a servant of the State, to ensure that she was safe inside the classroom.

2. In leaving the children unsupervised, the class teacher breached the duty of care imposed on her.

3. The plaintiff suffered damages as a result of this breach of duty of care.

4. The first and third defendants are, therefore, liable for the loss and damage suffered by the plaintiff as a result of injuries caused by the class teacher's negligence.

Cases Cited

Papua New Guinea cases cited

Administration v Carroll [1974] PNGLR 265.
Murray v Kinamur [1983] PNGLR 446.
Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185.
ToWalaunia v Tsihakon (1990) unnumbered, unreported NC.

Other cases cited

Chilvers v LCC (1916) 32 TLR 363.
Clarke v Bethnal Green BC (1939) 55 TLR 519.
Gow v Glasgow Education Authority [1922] SC 260.
Price v Caernarvonshire County Council (1960) Times, 11 February.
Rawsthorne v Ottley [1937] 3 All ER 902.
Ricketts v Erith BC [1943] 2 All ER 629.
Woodward v Mayor of Hastings [1945] KB 174.

Counsel

A Marat, for the plaintiff.
H Polume, for the first and third defendants.

1 July 1993

KONILIO J: This action was commenced by writ of summons on 17 January 1991. The matter came before me for hearing on 20 August 1992. I required counsel to file written submissions dealing with the questions of liability and quantum by 31 August 1992. These were duly filed.

In her amended statement of claim, the plaintiff claims amongst other things the following:

"5. The plaintiff and the second defendant were both Grade 4 pupils at Waigani Community School which is a public school set up and run by the first defendant through its instrumentalities, agencies or servants.

6. On or about the 2nd day of February 1989, at about 12.10 pm, at the direction of the class teacher, Mrs Anastacia Glaney, an employee, agent or servant of the first defendant, the plaintiff, then aged 9, the second defendant and other pupils of the same class went inside the classroom to have their lunch as it was raining heavily outside.

7. Whilst the plaintiff was inside 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.

Particulars of injuries

- Perforation in the right eye caused by sharp pointed end of the pencil.

8. The said accident was caused by the negligence of the class teacher of the then Grade 4 pupils, who was an employee agent or servant of the first and third defendants.

Particulars of negligence

(a) Having directed the pupils including the plaintiff and the second defendant to go into the classroom, the class teacher failed to ensure order and good behaviour.

(b) Failed to exercise proper supervision, guidance and control of the pupils inside the classroom at the material time.

9. In consequence of the matters aforesaid, the infant plaintiff has suffered loss and damages.

Particulars of loss

(a) Removal of the right eye surgically on 24 January 1991

(b) 100 percent effective use of the right eye and 50 percent of plaintiffs binocular vision have been lost.

Prescriptions K

1. Eye Drops 10.20

2. Sunglasses (pair) 8.00

Hospitalisation and Operation 88.00

Transportation 9.00

Provisions for guardian, mother looking after child in hospital 74.00

Total K189.00"

The plaintiff claims damages and interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.

The first and third defendant filed a defence, but not the second defendant. The first and third defendants deny the allegations contained in paragraphs 8 and 9 of the plaintiffs statement of claim referred to above.

They also deny particulars of negligence alleged against them in paragraph 8 of the statement of claim and say that, if there was any negligence as alleged, then it was the plaintiff who was negligent.

The first and third defendants provide the following particulars of negligence alleged against the plaintiff:

(a) failing to heed to lawful instructions when specifically instructed by the class teacher not to play and be disorderly whilst being inside the classroom.

(b) by playing and being disorderly with the other children who were also in the classroom, the plaintiff was exposing herself to the inherent risks of being injured or assaulted by another student.

The first and third defendants, thus, deny that they are liable for the damages suffered by the plaintiff.

In support of her claim, the plaintiff gave evidence. She is now a Grade 7 student at Mount Diamond Adventist High School.

She gave evidence that she recalled 2 February 1989, when her eye was poked by a pencil that came from the back of the classroom. She continued:

"I was coming back from the doorway to my desk. I was trying to go out of the classroom to buy my lunch at the school canteen. This was at 12 o'clock. I was standing at the doorway waiting for the rain to finish and I will go out. The teacher made an announcement that we should go back to our desks. When I walked back, she walked out. Teacher's name is Mrs Glaney. She walked out of the classroom. I do not know where to. When she walked out, there was no other teacher in my classroom. I came to my desk. While I was about to sit down, I heard someone call my name. I turned around and I was poked in the eye. I do not know who threw the pencil. I did not feel anything. I just fell down to the floor. When other children saw me fall down, they came and lifted me up. Teacher was not in the classroom. Children went to look for her. Before she came, a senior teacher came into the classroom. It was a long time before my teacher came. When she came, she went to a teacher who had a truck. He took us down to University Clinic.

At the clinic they put ointment into my eye to stop the pain. I was feeling some pain. I still feel pain now sometimes. At University Clinic on that day, that was the only treatment. In the afternoon, my parents took me down to the general hospital. I was given eye drops and told to come next day.

Next day, I went back and had my eye operated on. After the operation, I still felt pain. After the operation I went back home. After some time, I could not see clearly so I went back for another operation. Do not know when. That operation was to remove my eye. I am still feeling pain now.

I felt very sharp pain in both eyes. I have a false eye now. Lately, I have been back to the hospital on August 6 on a Thursday. They checked my eye and gave me an extra one. I have regular aches with the false eye. The extra eye is for when it is painful and when it gets smaller.

I do not play sport now. I played sport before injury - basketball and softball.

Going back to incident at the school, when I was at the doorway to classroom, I was not playing when waiting for the rain to stop. When I went back to the seat, it was because teacher (Mrs Glaney) had told me to sit down."

In cross-examination, the plaintiff said she came to know it was Joe Umba who threw the pencil at her because he admitted this to the teacher later on in the classroom when the teacher asked the class who had injured her.
One of the plaintiffs classmates, Sharon Sipenta, also gave evidence which confirmed the evidence of the plaintiff as to what happened in the classroom.

The Teaching Service Commissioner, Mr Mamis, was also called to give evidence. He gave evidence that he was the Teaching Service Commissioner in 1989. As such, he was and is responsible for making sure that teachers carry out the duties to the best of their abilities in teaching the curriculum set by the Education Department to the children for the education of the children generally and by inspections ensure standards are maintained. His office is also responsible for the conditions of service of teachers.

Mr Mamis referred to Joint Circular Instruction No. 18/82 dated 11 June 1982, Exhibit A. The circular instruction was designed by himself and the Secretary for Education, and it bears his signature. The circular instruction was circulated to headmasters directly or through the Education Office. He gave evidence that at the time the circular was drawn up it was circulated to schools.

In cross-examination, Mr Mamis on being asked whether in spite of the circular, Exhibit A, being sent out to teachers he felt responsible for the acts of teachers and students, he answered that he did not feel responsible personally but that he felt a responsibility through the system. In answer to a question from me, he said that if it is established that someone in authority, headmaster or teacher, did not carry out duties according to established rules in the above Circular, as Teaching Service Commissioner he would feel responsible.

The headmaster of the school at the time of the accident was also called and confirmed that the plaintiff was in her class at the time, and that Mrs Glaney was on duty at the time of the accident. He also confirmed receiving the above circular and discussing it with teachers and making up rules for students to follow.

The State did not call any evidence and tried to render a report by Mrs Glaney. It was objected to, and I ruled the report not admissible. There was no explanation as to why Mrs Glaney could not be located in time for the trial, which the State had known for some time was set down for 20 August 1992.

I have set out above what I consider to be the evidence material to ascertain whether or not the defendants are liable for the injury and damage suffered by the plaintiff.

The plaintiff has, as I indicated, filed written submission through her lawyers, Marat Lawyers. The Acting Solicitor General has also filed written submissions indicating that he only acts for the first defendant. I note, however, that the Notice of Intention to Defend dated 28 February 1991 by the Acting Solicitor General was in respect of both the first and third defendants. The defence dated and filed 15 March 1991 was also in respect of both the first and third defendants. Only at the trial was the Court advised that the Solicitor General is only acting for the first defendant, having no instructions to act for the third defendant.

The submissions as to liability by the plaintiffs counsel are set out on pages 2 to 6 of his written submissions. The plaintiff has alleged, as shown in the amended statement of claim, that the accident therein described was caused by the negligence of the class teacher of the plaintiff, who was employee, agent or servant of the first and third defendants. In respect of liability, the plaintiffs lawyer has submitted that:

"The issues decipherable from the pleadings and which are before the court for determination are negligence; whether the infant plaintiff Melinda Baduk (plaintiff) failed to heed lawful instructions when instructed by the class teacher one Mrs. Glaney (class teacher) not to play or be disorderly in the classroom; and whether the plaintiff played and was disorderly with other children in the classroom, thereby exposing herself to the risk of being injured or assaulted by another student. In other words, whether the plaintiff contributed to her own injury. The issue of negligence can be further broken up into three (3) other issues. Firstly, whether the first defendant (the State), through its servants the teachers and, in particular, the class teacher concerned at the Waigani Community School, owed a duty of care for the plaintiffs safety inside the classroom. Secondly, whether there was a breach of this duty of care and, thirdly, whether as a consequence of the breach, damages to the plaintiff resulted. Altogether, then, there are about five (5) issues arising from the pleadings and, in terms of the trial, these were the battles that really needed to be fought."

The issues that I have to decide here then in view of the Joint Circular Instruction No. 18/82, Exhibit A, are:

(a) Did the first defendant, the State through its servant the class teachers, owe a duty of care to the plaintiff to ensure that she was safe inside the classroom?

(b) If there is such a duty, was there a breach of this duty?

(c) Was it as a result of such breach of duty that the plaintiff suffered damages?

DUTY OF CARE

Dealing first with the question of whether the plaintiff was owed a duty of care by the class teacher to ensure that she was safe inside the classroom, I must consider whether the class teacher should have foreseen any harm coming to the plaintiff; whether there was proximity between the plaintiff and the class teacher, and whether the duty of care imposed on the class teacher is just and reasonable.

Exhibit A, referred to above was a joint circular dealing with the subject of Teachers Responsibility for Student Safety. Its purpose was to inform teachers of the responsibility they have towards the safety of students... (see Clause 1). Clause 3 of the circular states the authority for the instruction as s 27(a) of the Education Act Ch 163 and s 145 of the Teaching Service Act Ch 71. Clause 4.3 states that teachers are reminded that it is their responsibility to make sure that the education institution looks after the children with the same degree of responsibility and care as would a parent. Under clause 5, the circular states that, because of the legal responsibility placed on the government, the department and the Teaching Service Commission have determined some basic rules of supervision of students to be followed in all schools. Among these, as set out in clause 5.1, is that efficient supervision should be provided during all recesses, Clause 5.1.3 provides for the proper and adequate oversight of the playgrounds, toilets and buildings during daily recess.

On the evidence, the above circular instruction, Exhibit A, was distributed to, among others, headmasters of all schools. The headmaster of the Waigani Community School admitted in evidence that he did inform teachers at the school of the instructions and that these were the subject of discussion at teachers' get togethers at recesses. It would appear, then, that teachers, including the plaintiffs class teacher, were aware of the legal responsibility they had towards their pupils as the instructions (in Exhibit A) gave rise to a legal duty of care on the part of the class teacher.

Should the class teacher have foreseen any harm coming to the plaintiff or for that matter, to any of the pupils in her class?

On the evidence, it is apparent that the class teacher should have foreseen some harm coming to the plaintiff. The pupils were standing around in the class room waiting for the rain to stop before they could go out. It should have been apparent to the class teacher that, if the children were not properly supervised, there was likelihood of harm coming to one or more of the pupils. The class teacher, in fact, told the pupils to go back to their desks and sit down and then left them to themselves. It was then that the injury occurred to the plaintiff.

Was there proximity between the plaintiff and the class teacher? The answer is yes. A class teacher would, in my view, be the closest person to a pupil in his or her class. In this case, the plaintiffs class teacher was the closest person in authority to the plaintiff. The class teacher, Mrs Glany was on duty at the relevant time.

Is the duty of care imposed on the class teacher just and reasonable? On the evidence, that would seem to be the case. It is just and reasonable that the class teacher properly supervise the pupils so that they do not cause injury and harm to each other. The circular instruction (Exhibit A) referred to above, required the class teacher to do this.

It should be apparent from the above that, in my view, the class teacher, a servant of the first defendant, the State, owed a duty of care to the plaintiff to ensure that she was safe inside the classroom.

Having found there is a duty of care, was there a breach of that duty by the class teacher? It is clear, in my view, from the evidence that, in leaving the children unsupervised, the class teacher breached the duty of care imposed on her by the circular instruction (Exhibit A). On the evidence, the injury to the plaintiffs right eye happened in the absence of the class teacher. The class teacher was also not present in the classroom when the plaintiff was on the floor with pain and suffering while she was bleeding from the eye. The class teacher came well after her pupils had called for help.

Was it as a result of such breach of duty that the plaintiff suffered damages? This would seem to be the case. While the class teacher was in the classroom, there was no disorderly conduct by the pupils. Her presence in the classroom made sure of this as she was their teacher on duty and the person in authority there. When she left the classroom, there was disorderly conduct resulting in the injury to the plaintiff.

The first and third defendants have raised the defence that the plaintiff failed to heed instructions when instructed by the class teacher not to play or be disorderly in the classroom and, also, the defence that the plaintiff played and was disorderly with other children in the classroom, thereby exposing herself to the risk of being assaulted by another student.

The defendants did not call any evidence but have made the following submissions, contained in pages 2 to 4 of their written submission:

"The issues here, your Honour, are: (1) Was the school under a duty of care towards their students/or others invited into the school? (2) Whether there was adequate supervision over the pupils when they are on the school premises, whether in the classroom or playground? (3) Whether the state is liable for sudden acts which could not have been prevented by supervision?

The duty of the defendant is that of a reasonably careful parent. The headmaster is under a duty to exercise supervision over his pupils when they are on the school premises, either in the classroom or the playground. The amount of supervision required depends on the age of the pupils and what they are doing at the material time. During the hours of instruction, a greater degree of supervision is required than hours of recreation. When normal healthy children of school age are in the playground, it is not necessary that they should be under continuous supervision, as held in the case of Rawsthorne v Ottley [1937] 3 A11 ER 902, when a tip-up lorry in charge of a single driver had delivered Coke in a playground, and was driving away when a number of boys jumped onto the rear of the lorry, causing the tipping part to tip up. Another boy, the plaintiff, had jumped onto 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 gone into the school premises before the arrival of the lorry. It was held that the headmaster was not negligent in leaving the boys in the playground without supervision, nor ought he to have taken steps to stop the lorry from coming during playtime.

Again, as held in the case of Ricketts v Erith B C [1943] 2 All ER 629, where a boy of ten injured a girl of six during the lunch break with a toy bow and arrow in the teacher's absence. The Council was sued by the infant plaintiff through her father as next friend for damages on the grounds that the Council were negligent by their servants in failing to maintain adequate supervision over the pupils in the playground.

It was held that taking into consideration all the circumstances, it was not incumbent upon the Council to have a teacher continuously present in the yard throughout the break, and the supervision had been adequate.

Again in the cases of Price v Caernarvonshire County Council, The Times, February 11, 1960, where a boy sustained the loss of an eye when he was struck by a rounder's bat whilst playing in an unofficial game of rounders during the midday lunch break, it was held that there had been no failure of supervision.

The duty of persons who occupy premises as school governors towards pupils attending the school is that of an inviter towards an invitee, as held in the case of Woodward v Mayor of Hastings Corporation [1945] KB 174, as pupils are directed to attend schools. The school must, therefore, use reasonable care to prevent damage to the pupils from unusual dangers of which he knows or ought to know. Unusual danger in this connection, means danger which is unusual having regard to the age of the pupils expected to use the part of the premises in question.

With respect to chattels, which the pupils are invited or directed to use, there is a duty to see that such chattels are reasonably fit for the intended use. A schoolmaster is under a duty not to leave about, in a place to which his pupils have access, things likely to injure the pupil. If they were left lying about by a third party, the headmaster is liable if he knew or ought to have known that they were left where his pupils could get at them and injure themselves. Thus, a pencil is a chattel which the children are directed to use in every school.

I would like to draw your attention to the case of Chilvers v LCC (1916) 32 TLR 363, where it was established that there was no negligence on the part of the teacher in allowing the children to play with toy soldiers, on the grounds that they were playthings in ordinary use in every nursery.

Thus, even if there is a breach of the duty to exercise supervision, a schoolmaster/state is not liable for sudden acts which could have been prevented by supervision, as held in the case of Gow v Glassgow Education Authority (1922) SC 260, where in a school for blind children, one of the children, during the temporary absence of the person in charge, jumped on the back of another and injured him.

Or for accidents which could not be anticipated, such as injury caused to a child in the case of Clarke v Bethnal Green BC (1939) 55 TLR 519, where injury to a child at a swimming bath caused by one child suddenly letting go of a spring board to which she was clinging while the injured child was about to jump from it.

I submit, therefore, your Honour, that under the circumstances of the case, the State would deny liability on the grounds that the accident occurred during the midday break and supervision, as alleged by the plaintiff, was adequate as establishment in the cases of Rawthorne v Ottley [1937] 3 A11 ER 902, Ricketts v Erith BC [1943] 2 A11 ER 629, and Price v Caernarvonshire County Council, The Times, 11 February 1960.

This is further supported by the fact that even if there was any breach of duty, the State would not be liable for sudden acts which could not have been prevented by supervision as established in the cases of Gow v Glassgow Education Authority (1922) SC 260 and Clarke v Bethnal Green BC (1939) 55 TLR 519."

In not calling evidence, the defendants have not made out the particulars of negligence alleged against the plaintiff. The evidence by the plaintiff and Sharon Sipenta shows, on the other hand, that the plaintiff did, in fact, heed the class teacher's instructions to sit down and was not playing and being disorderly in the classroom. In not making out the particulars of negligence alleged against the plaintiff, the defendants have failed to establish contributory negligence on the part of the plaintiff.

I have carefully considered the submissions and the authorities referred to by the defendants. In my view, however, those cases cited by the defendants are distinguishable on their facts. The major difference in this particular case to those cases is that in this case the Joint Circular Instruction No. 18/82 (Exhibit A) was issued to community schools in Papua New Guinea and this was to be observed by the schools and their teachers. Clause 1 of the circular provides that "the purpose of this instruction is to inform teachers of the responsibility they have towards the safety of students, and to establish basic rules for student safety in all educational institutions" such as community schools. The circular instruction then sets out detailed rules for supervision.

I find that the plaintiff has shown on the evidence before me that this Joint Circular Instruction was not complied with by the defendants and that, at the relevant time, the plaintiff and her classmates were not being supervised as they should have been by their class teacher.

I am satisfied on the evidence that the plaintiff has established to the required standard that the plaintiffs class teacher, Mrs Anastacia Glaney, an employee, agent, and servant of the first defendant, and the third defendant owed her (the plaintiff) a duty of care and that they breached that duty of care, resulting in her receiving the injuries described above. The first and third defendants are, therefore, liable for the loss and damage suffered by the plaintiff as a result of the injuries caused by their negligence.

ASSESSMENT OF DAMAGES

The plaintiffs lawyers have addressed at some length the issue of what quantum of damages is appropriate in this case. The defendants, on the other hand, have only invited me in their submissions "to consider all the circumstances of the facts cited in the State's submission in determining quantum".

THE ACCIDENT

The circumstances of this accident are well set out above. As soon as the sharp-pointed lead end of the pencil poked the plaintiffs right eye-ball, she fell to the floor. The class teacher was not with the class in the classroom when the accident occurred and for quite sometime afterwards.

MEDICAL TREATMENT

The plaintiff was first treated at the University of PNG clinic that day. One day later she was brought to the eye clinic at the Port Moresby General Hospital and admitted. She received treatment at the clinic while admitted and was discharged on 7 February 1989. On 20 April 1989, the plaintiff had to report back to the clinic when a cataract developed in the injured eye. She received further medical attention and was then discharged. On 1 August 1989, the plaintiff had to attend the clinic again with a painful and soft right eye. She was diagnosed to have completely lost vision of her right eye and was treated conservatively.

On 24 December 1990, it was discovered that the injured right eye had pthisis bulbi. It was irritable with occasional pain, and the plaintiff was advised that the eye needed to be removed. On 23 January 1991, she was admitted to the Port Moresby General Hospital. Her right eye was surgically removed on 24 January 1991. She was discharged on 29 January 1991. On 5 February 1991, Melinda paid her last visit to the eye clinic, where it was established that she had lost 100% vision of the right eye and lost her binocular vision.

DISABILITIES

The plaintiff has lost 100% vision of her right eye and now has a false right eye. She also suffers pain when reading with the one remaining natural eye. This seems to be a continuing disability.

PAIN AND SUFFERING

This has been mentioned above and need only to be mentioned briefly here. The plaintiff fell to the floor as soon as her right eye was injured, bleeding from the eye. She was in great pain. She had to go through two surgical operations and medical treatment as described above. Before the right eye was removed in January 1991, she suffered pain and anxiety for two years. She has had pain and suffering after the removal of the right eye. She has since the injury to her eye gone through and has put up with so much discomfort.

Permanently losing the right eye means the plaintiff has to live with the knowledge that she has a false eye. Her reading has been affected. She experiences pain in both eyes if she reads for a long time. This means, of course, that she cannot read as much as she would like to.

The plaintiff also has to, every now and then, replace the false eye with the spare false eye and ensure the one she is not using is kept in a glass of warm water.

LOSS OF ENJOYMENT OF LIFE

The plaintiff is a young girl. She played softball and basketball before the injury. She does not play those games at all now because of the false right eye. The loss of the right eye has resulted in the plaintiff not being able to take part in sports that she once took part in before the accident.

It is not unreasonable to assume that, as in sport, the fact that the plaintiff has lost one eye is something that would cause her embarrassment, especially if remarks are made about her appearance.

FUTURE PAIN AND SUFFERING

Dr Dutta, in his affidavit, Exhibit E, states, "Miss Baduk has lost her binocular vision permanently which will disqualify her in some professions". This would no doubt restrict her in what employment she can take.

GENERAL DAMAGES

In summary, general damages should be awarded for the following:

The plaintiff suffered great pain when she was struck in the eye and she was bleeding. She suffered considerable pain from that time, 2 February 1989, to the time the eye was removed on 24 January 1991 and shortly thereafter. The plaintiff continues to suffer irritation and pain in the right eye. The plaintiff has to remove the false eye every night before going to sleep and has to insert it or the other spare false eye after waking up. The spare false eye has to be kept in glass of water every night. Pus forms on the outside of the false eye and the skin if the plaintiff forgets to remove it. Pain, irritation and inconvenience will remain part of the plaintiffs life. She no longer takes part in sports.

Counsel for the plaintiff compares the plaintiffs general damages with that of the plaintiff in Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185, a case where the plaintiff was blinded in one eye by a staple fired by another student at school run by the defendant.

Counsel for the plaintiff has also referred to Murray v Kinamur [1983] PNGLR 446 but says that, apart from the removal of the plaintiffs eye, that case is distinguishable from this case on most of the facts.

Counsel has also declined to refer to Britts' Comparable Verdicts in Personal Injury Claims and has suggested that we should develop our own legal jurisprudence in this area of law. He submits that schools throughout Papua New Guinea need to exercise a higher standard of responsibility for the safety of pupils, just as parents would.

Mr Marat submits that, taking account of contingencies, general damages should be assessed at K40,000.00.

Counsel for the State, Mrs Polume, has submitted that, should I rule in favour of the plaintiff, I should consider all the circumstances of the facts cited in the State's submission in determining quantum.

There do not seem to be any reported cases dealing with the issues involved in this case or setting out some guidance in what would be an appropriate award of damages in a case such as this.

On 18 October 1990, I dealt with the case of ToWalaunia v Tsihakon (WS No 32/84) in Rabaul. This was a case in which the plaintiff suffered the complete loss of vision of his right eye following a wrongful assault on the eye with the right fist by the first defendant, a school teacher, in the course of a physical education lesson at a high school where he was a Grade 8 student. In that case, liability was admitted and I awarded general damanges in the sum of K30,000.00 to the plaintiff.

In considering an appropriate award in this case, I take into account the remarks of Minogue CJ in Administration of PNG v Carroll [1974] PNGLR 265 at 269, when he pointed out that the task of the court is to provide a plaintiff with a "fair compensation to accord with his needs".

I also take into account the remarks of Prentice Dep CJ, as he then was in Dillingham Corp v Diaz [1975] PNGLR 262 at 278, where he says:

"As Minogue C.J pointed out (Administration of PNG v Carrol supra) the task of the Court is to provide the plaintiff with 'a' fair compensation to accord with his needs'. Unless and until the legislature sees fit to provide set scales of compensation for types of injuries done, or sets limits to amounts that may be awarded I do not think that this Court should resile from the aim involved in that dictum. That this fair compensation could be achieved; it is incumbent upon a tortfeasor to take his plaintiff as he finds him. If he (or the insurance company which may support him) becomes responsible for injury to the Head of Government or a technical officer of the highest qualification, he must be prepared to compensate on a scale far higher than for a simple villager of very modest needs. Just as the amount awarded for expenses and economic loss will vary; so I conceive, should that of pain and suffering and loss of amenities."

On the evidence before me, I assess general damages in the sum of K35,000.

ECONOMIC LOSS

No claim was made under this head, as the plaintiff was not earning any income at the time of the injury.

OUT OF POCKET EXPENSES

K500 has been claimed for medical expenses, transportation to and from clinics, sunglasses and other pharmacentical requirements. These expenses were not disputed by the State. I would award the sum of K500 claimed under this head. This includes the amount of K189 particularised above.

INTEREST

As to interest, I would agree with the State's submission that, since the reason for awarding interest is to compensate a plaintiff for having kept him out of money which theoretically was due to him at the date of the accident; as the plaintiff was not earning a salary, interest should not be awarded.

I, therefore, do not award any interest on the judgment.

Judgment shall be entered for the plaintiff in the sum of K35,000 for general damages and K500 for out of pocket expenses; a total of K35,500.

The plaintiff shall also have her costs.

_________________

Lawyer for the plaintiff: Marat Lawyers.
Lawyer for the first and third defendants: State Solicitor.