Godfrey Sinabu Sinonge v Attorney-General (575/HP/1969) [1964] ZMHC 1 (4 December 1964)

GODFREY SINABU SINONGE v ATTORNEY-GENERAL (1970) ZR 73 (HC) HIGH COURT HUGHES J 30 4th DECEMBER 1970 575/HP/1969 Flynote Tort - Negligence - Standard of care - School authorities - Standard of care required of school teacher towards infant pupils. Tort - Negligence - Schoolboy aged fifteen years injured himself while 35 collecting firewood under teacher's instructions - Whether schoolteacher failed to exercise adequate supervision over infant. Headnote A Grade VII school pupil aged fifteen years was instructed by his teacher with two others to go and collect firewood. The plaintiff secured an axe from his home and the three of them went to a nearby 40 bush 150 yards from the school and started cutting a fallen log. In the process the plaintiff injured himself. An action was brought for breach of duty of care on the part of the school authorities towards the infant. 1970 ZR p74 HUGHES J Held: (i) The standard of care required of schoolteachers towards their pupils is high. The standard of care owed by the headmaster of a school towards the pupils is that of a careful father towards his 5 own children (ii) The infant plaintiff was engaged in a task which was traditionally part of a normal school curriculum in rural Zambia. Having regard to his age and his upbringing he ought to have been fully competent to perform the task without any special supervision. In all the circumstances of the case, the school authorities did not fail to observe the standard of care owed by them to the infant plaintiff and his father. Cases cited: (1) Hedley Byrne & Co., Ltd v Heller and Partners Ltd. [1963] 2 All ER 15 575. (2) Williams v Eady (1893) 10 TLR 41. (3) Beaumont v Surrey County Council (1968) 112 S. J. 704. (4) Smith v Martin and Hull Corporation, [1911] 2 KB 775. (5) Wray v Essex County Council, [1936] 3 All ER 97. 20 (6) Cooper v Manchester Corporation, The Times February 13th, 1959. (7) Ricketts (In) v Erith Borough Council, [1943] 2 All ER 629. (8) Wright v Cheshire County Council, [1952] 2 All ER 789. (9) Camkin v Bishop and Another, [1941] 2 All ER 713. R M A Chongwe, Martin & Co., Counsel, for the plaintiffs. 25 R L Williams, State Advocate, for the defendant. Judgment Hughes J: This is an action for damages arising from injuries sustained by the first plaintiff (hereinafter called the infant plaintiff) in the course of an accident which occurred in the vicinity of the Govern- School at Mumbwa on the 16th September, 1966. 30 At the commencement of the trial I was informed by counsel for the parties that it had not been possible to finally formulate the infant plaintiff's claim for general damages, or to adduce evidence in support thereof, due to the failure of the Government medical authorities to provide the relevant medical reports. It was agreed that I should proceed 35 with the trial and hear the evidence of the parties in order to determine the issue of liability only, leaving the question of damages to be dealt with at a later stage should the necessity arise. It is common cause that the infant plaintiff had been a Grade VII pupil at Mumbwa Government School for approximately six months on 40 the 16th September, 1966. On that date he was a little over fifteen years of age, his date of birth being the 25th July, 1951. He is Lozi by tribe and the son of a Government forester. He had previously been a pupil at Kabulonga Secondary School, Lusaka, for about one year but prior to that he had received his earlier education at rural schools in the Western 45 Province. 1970 ZR p75 HUGHES J On the material date he and his two fellow pupils, Solomon Hamwamba and Dickson Kapepe were given certain instructions, the precise nature of which are in dispute, relating to the collection of firewood to be used to provide cooking facilities for a visiting football team. These instructions were given by Mr Frederick Chitumbo who was the class teacher 5 in charge of Grade VII. On receipt of the teacher's instructions the infant plaintiff went to his house, which was adjacent to the school, and borrowed an axe belonging to his father. He and his two companions then went to a place in the bush approximately 150 yards from the eastern side of the school, where they found a fallen log of some considerable girth and 10 measuring approximately twelve feet in length. This log had not been completely severered from the tree trunk. The lower end was apparently still connected to the stump whilst the upper end rested on the ground. The infant plaintiff started to chop the log with the axe. He was followed in doing this, in turn, by Solomon and Dickson. Whilst Dickson was 15chopping, the infant plaintiff and Solomon sat on top of the log playing with coins. One of the coins fell on the ground and rolled under the log. The infant plaintiff crawled underneath to retrieve it but as he did so Dickson cut completely through the log causing it to fall on the infant plaintiff's back. As a result, it is alleged, the infant plaintiff sustained a 20 fracture of the spinal cord and pelvis. As previously indicated there is a dispute of fact as to the exact nature of the instructions given to the infant plaintiff and his companions, and also as to the position regarding the provision of axes at the school. There is conflict between the evidence of the parties on these two 25 matters which raises an issue of credibility. Apart from Dr Bull, whose evidence was not concerned with the facts of the case, the witness who impressed me most on the trial was Mr Chitumbo. He gave his evidence with considerable confidence and clarity and he remained unshaken under cross - examination. I have no hesitation in regarding him as a thoroughly 30 reliable and truthful witness. It is significant to note that he resigned his appointment as a teacher with the Ministry of Education in December, 1967, and has since been employed in the private sector. He can thus be safely regarded as not having a partisan interest in the result of this action. Allowing for the infant plaintiff's present physical disability and 35 the traumatic shock, which he no doubt experienced as a result of this unfortunate and tragic accident, he was not a witness who inspired confidence. He was generally hesitant and was sometimes reluctant to answer questions which I suspect, he believed might adversely affect his case. 40 On the question of the instructions given by Mr Chitumbo, the infant plaintiff stated in examination - in - chief that the teacher told them to go and cut firewood. Under cross - examination he repeated that this was the instruction he was given but then conceded that he could not remember if the teacher had specifically used the word cut. He claimed that Mr 45 Chitumbo saw him carrying the axe when he returned from his father's house but I have no hesitation in saying that I did not believe this and I accept the truth of the teacher's categorical denial on this point. The 1970 ZR p76 HUGHES J infant plaintiff is supported in his account of the teacher's instructions by his fellow pupil Dickson, who also states that they were told to go and cut firewood. Dickson went further and added that the teacher specifically instructed them to get axes from the school store, a fact which, if true, 5 I would have expected the infant plaintiff to have referred to. Solomon on the other hand stated that they were told to go and collect firewood and he repeated this a second time in his evidence. These discrepancies in the evidence of the infant plaintiff and his witnesses cannot be dismissed as being of no significance particularly 10 when considered in light of Mr Chitumbo's categorical and unequivocal statement on oath that he instructed the three pupils to collectand not to cut firewood. The infant plaintiff has failed to satisfy me, on the balance of probabilities, of the truth of his version of the instructions given to him by the teacher on the occasion of the incident under inquiry. With 15 regard to the question as to whether or not axes were available at the school at that time, I would again accept the evidence of Mr Chitumbo, when he states that they ran short of axes about the beginning of 1965. When he stated that there were none in stock on the material date I suspect that he was referring to suitable axes in good condition. 20 It may well be that, at that time, there were old and broken axes, and small hatchets not suitable for wood cutting, in the tool store, as Solomon and Dickson suggest. I would not regard the headmaster's evidence on this point as reliable. He appeared over anxious to have me believe that there had been no axes in stock at the school since he took up office in 25 1963. This issue is relevant in so far as it affects the general credibility of the witnesses but a conclusive finding on the point is not essential in view of my earlier finding that the infant plaintiff and his companions were instructed to collect and not to cut firewood. Finally, I believe Mr Chitumbo's statement under cross - examination that when he instructed 30 the infant plaintiff and his companions to collect firewood he had no reason to suspect that they would go and get an axe elsewhere. I now turn to consider the standard of care owed by the defendant to the infant plaintiff on the basis of these facts. In this regard my attention has been referred to a number of English decisions. Precedents do not, 35 of course, fix the limits of what may be described as duty situations, they merely illustrate them. Lord Pearce in his dictum in Hedley Byrne and Co., Ltd v Heller and Partners Ltd (1) observed; "How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts' assessment of the demands 40 of society for protection from the carelessness of others." It should, perhaps, be added that English decisions must be considered in the Zambian context and applied subject to such qualifications as local conditions and circumstances render necessary. The authorities are generally agreed that the standard of care required 45 of schoolteachers towards their pupils is high. The duty of a schoolmaster has been said to be to take such care of his pupils as a careful 1970 ZR p77 HUGHES J father would take of his children - per Lord Esher, M. R, in Williams v Eady (2). This test was somewhat extended by Lane, J, in Beaumont v Surrey County Council (3) when he observed: "It is unrealistic, if not unhelpful, to say the standard of care owed by the headmaster of a school of 900 pupils is that of the 5 reasonably careful and prudent father towards his own children." Applying the standard of care suggested by Lord Esher it was held in Smith v Martin and Hull Corporation (4) that the act of a teacher in telling a girl of fourteen to go into the teachers' room to poke the fire and draw the damper, in consequence of which, the girl's apron caught 10 fire and she was injured, was evidence on which a jury were entitled to find negligence on the part of the teacher. On the other hand, in Wray v Essex County Council (5), where a master told a boy of twelve to carry an oil can with a long spout from one classroom to another and while the boy was carrying the oil can, another boy, coming suddenly round 15 the corner of a passage, collided with the can and injured his eye, it was held that there was no negligence on the master's part. Also there was held to be no negligence in Cooper v Manchester Corporation (6), where a fourteen - year - old girl was scalded when carrying a large tea pot full of hot tea down a school passage - way and a boy, running along, collided 20 with her, since the carrying of a pot of tea was an ordinary domestic duty. In this case it is more specifically alleged that the defendant was negligent in that the schoolteacher failed to exercise adequate supervision over the infant plaintiff and his companions after allocating them the task of collecting firewood. There are several English decisions dealing 25 with the duty to exercise supervision. In Ricketts v Erith Borough Council (7) the infant plaintiff, aged six years, was playing with some fifty other children in the playground which formed part of the school premises. There was an unlocked gate which leads to the street and, if given permission, children could leave the playground by this gate to go home for 30 lunch or to buy sweets or toys. From time to time one of the teachers would go into the playground to see that all was well; but there was no continuous supervision. A boy of ten left the playground and went across to a nearby shop and bought some blunt pieces of bamboo made up in the form of a bow and arrow. Returning to the playground and, unseen by 35 the teachers, he discharged the arrow which struck the infant plaintiff 's spectacles shattering the glass and necessitating the removal of an eye. It was held that the education authority was not negligent as it was not encumbent upon them to have a teacher continuously present in the yard throughout the break, and that the supervision had been adequate. 40 In Wright v Cheshire County Council (8) a boy of twelve, who was injured in vaulting over a "buck", failed to recover damages. There were four classes in the school gymnasium and the instructor was supervising another class at the time, but it was proved that the supervision was in accordance with the approved practice which had been followed with 45 safety for many years, so that it was held there was no negligence. 1970 ZR p78 HUGHES J In Camkin v Bishop and Another (9), where the facts were not entirely dissimilar to those in this case, a number of boys from a school were allowed by their headmaster to help a farmer by working in a field on their half holiday. As a result of horseplay among some of the boys the 5 infant plaintiff was struck on the forehead by a clod of earth, and one of his eyes was so badly injured that it had to be removed. In an action for damages for negligence against the headmaster, it was contended that he was under a duty to arrange for the supervision of the boys while they were doing the work. In the circumstances of that case it was held by the 10 Court of Appeal that the headmaster owed no duty to the infant plaintiff to provide for the supervision of the boys. Goddard, LJ (as he then was), in his judgment at p. 715 observed: "I agree that this appeal should be allowed. The question we have to determine is whether there was any breach of duty by the 15 headmaster, his duty being that of an ordinary careful parent. I ask myself whether any ordinary parent would think for a moment that he was exposing his boy to risk in allowing him to go to field with others to weed beet or lift potatoes, occupations far safer than bicycling about on the roads in these days. 20 I confess that I have some difficulty in appreciating the view taken by the judge. He found that the defendant failed in his duty by reason of lack of supervision. If this means anything, it must mean that it is the duty of a headmaster to see that boys are always under supervision, not only while at work, but also at play, 25 or when they are free, because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition." It should be noted, of course, that Camkin's case dealt with the supervision of pupils during their free time, whilst here, we are concerned with the 30 supervision of pupils engaged in manual labour as part of the school curriculum. Dr Bull, who was called by the defence as an expert witness, is a lecturer at the University of Zambia on the History of Central Africa. She may not be an anthropologist, as counsel for the infant plaintiff has 35 pointed out, but I would nevertheless regard her as an authority on the traditional way of life of the Lozi tribe, the society in which the infant plaintiff was brought up. On her evidence I am satisfied that Lozi boys between the ages of twelve and sixteen, brought up in a rural environment, are encouraged to engage in such pursuits as hunting, fishing, cultivating 40 and wood cutting in the forest. These activities are intended to train them to grow up to be useful members of the traditional society. Dr Bull was clearly of the opinion that a boy of the infant plaintiff's age would be fully competent to engage in wood cutting. In fact, in her experience, she has known much younger boys to perform this task. I would accept her 45 statement that, at most rural schools in Zambia, it has always been the practice for children to engage in a wide range of manual chores as part of the school curriculum. This fact has also been confirmed by the Head master of the Mumbwa Government School who is an educationalist of 1970 ZR p79 HUGHES J considerable experience. Counsel for the infant plaintiff has drawn attention to the fact that the average age of pupils in Grade VII has lowered in recent years, but it should be noted that Dr Bull specifically directed her opinions to the normal pursuits of a boy of fifteen years of age. 5 I am satisfied that the task which the infant plaintiff was given was one for which, with his traditional background, he was well suited and competent to perform. Indeed I would go further and say that, had it been proved that he was instructed to cut firewood, I would not, in view of his upbringing, have regarded that task as being an inherently 10 dangerous one, in the context of rural Zambian society, requiring any special degree of supervision. The fact that the infant plaintiff had attended an urban secondary school for a year would not alter my view in this regard. I have no reason to doubt the correctness of the headmaster's statement that in the course of his twenty - three years' 15 experience as an educationalist it had always been the practice for boys at rural schools to engage in wood cutting as part of the manual duties on the school curriculum and, that in the course of such experience he had never known an accident to occur in the pursuit of that activity. Emphasis has been laid by the infant plaintiff's counsel on the fact that pupils 20 engaged in gardening at Mumbwa Government School were supervised whilst performing that duty. It is clear, however, that the particular nature of that type of manual work requires a greater degree of skill in its performance than wood cutting or wood gathering does, and no doubt it is for this reason that supervision of that work is considered necessary. 25 It has been contended that wood cutting or wood gathering parties should at least have been supervised by a prefect but I fail to see what any boy who, at most would only be a few years older than the infant plaintiff, could have done to make this normally safe task any more safe. The infant plaintiff was engaged in a task which was traditionally 30 part of a normal school curriculum in rural Zambia. Having regard to his age and his upbringing he ought to have been fully competent to perform that task without any special supervision. In all the circumstances of the case I am unable to find that the school authorities failed to observe the standard of care owed by them to the infant plaintiff and his father. This 35 action is accordingly dismissed with costs to the defendant. Action dismissed