Roxanne Peart (by her mother and next friend Venice Peart) v Shameer Thomas (by his mother and next friend Angella Thomas)

• Jurisdiction: Jamaica
• Judge: V. Harris, J
• Judgment Date: 28 April 2017
• Neutral Citation: [2017] JMSC Civ 60
• Docket Number: CLAIM NO. 2011 HCV 07706
• Court: Supreme Court (Jamaica)
• Date: 28 April 2017

[2017] JMSC Civ 60

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Cor:

V. Harris, J

CLAIM NO. 2011 HCV 07706

Between

Roxanne Peart (By her mother and next friend Venice Peart)

Claimant

and

Shameer Thomas (By his mother and next friend Angella Thomas)

1st Defendant

and

Brenda O'Connor (For and on behalf of the Snowden All-Age School)

2nd Defendant

and

Angella Thomas (For and on behalf of the Snowden All-Age School)

3rd Defendant

and

The Board of Management of the Snowden All-Age School

4th Defendant

and

The Ministry of Education

5th Defendant

and

The Attorney General of Jamaica

6th Defendant

Mr. Mikhail Williams instructed by Taylor, Deacon & James for the Claimant

Mr. Wilwood Adams instructed by Robertson, Smith, Ledgister & Company for the 1 ^st Defendant

Mr. Dale Austin instructed by the Director of State Proceedings for the 2 ^nd, 3 ^rd, 4 ^th, 5 ^th and 6 ^th Defendants

Negligence — Claimant stabbed in eye with pencil — Loss of vision in left eye — Cause of action pleaded in Negligence — Whether statement of case discloses negligence or assault against one Defendant — Section 48 of the Judicature (Supreme Court Act) — Rule 8 of the Civil Procedure Rules

Damages — Post Traumatic Stress Disorder — Quantum of damages

IN OPEN COURT

Introduction

1 The claimant, Ms Roxanne Peart, was a minor at the time the claim was filed but who now has attained the age of majority, claims damages for negligence against the defendants jointly and severally as a result of an injury she received to her left eye while she was a student at the Snowdon All-Age School. This is the correct spelling for the name of the institution.

2 The claimant alleges that on February 14, 2006 Mr. Shameer Thomas (the 1 ^st defendant) whilst in the care and control of Mrs. Brenda O'Connor, Mrs. Angella Thomas and The Board of Management of Snowdon All Age School (the 2 ^nd, 3 ^rd and 4 ^th defendants respectively) who were all servants and/or agents of the Ministry of Education (the 5 ^th defendant) acted negligently causing personal injury to her. The 1 ^st defendant at the time of the incident and the filing of the claim was also a minor. However, he too is now an adult.

3 The particulars of negligence of the 1 ^st defendant as pleaded are that he failed to have due consideration for the safety of his classmates and to give due considerations to the likely injury which his actions could cause to his fellow classmate.

4 The alleged particulars of negligence of the 2 ^nd defendant are that she:

• i) Failed to keep a watchful eye on the students in her care and control;

• ii) Failed to exercise reasonable care and awareness given the age of the students in her care and control;

• iii) Failed to be aware of what was happening in her classroom;

• iv) Failed to react with the urgency which the attack by one student on another required; and

• v) Failed to ensure that the Claimant's injuries were attended to with urgency.

5 The particulars of negligence of the 3 ^rd, 4 ^th and 5 ^th defendants as alleged are that they:

• i) Failed to ensure that the Claimant received immediate medical attention given the serious nature of her injuries;

• ii) Failed to ensure that staff members were capable of managing and controlling their classes efficiently;

• iii) Failed to ensure that the staff in its employ was properly briefed on the need to be aware of the circumstances which existed in their classrooms at all times;

• iv) Failed to ensure that staff in its employ was properly briefed on how to respond when children in their care and control were involved in violent encounters; and

• v) Failed to put in place systems and procedures to ensure students' safety.

6 As a result of the negligence of the 1 ^st, 2 ^nd, 3 ^rd and 4 ^th defendants, Ms. Peart contends, she sustained blindness in and traumatic loss of her left eye, as well as, post traumatic stress disorder.

Undisputed evidence

7 For ease of reference only and no disrespect is intended, I will refer to the claimant and 1 ^st defendant by their first names. The other parties will be referred to by their respective titles and surnames.

8 Much of the evidence is undisputed. Roxanne and Shameer on the day of the incident were about ten (10) years old. They were both in Grade 4 at Snowdon All Age School. Their class teacher was Mrs. O'Connor. Mrs. Thomas was the principal of the school and Shameer's mother.

9 It is also not in issue that there was a physical altercation between Roxanne and Shameer while they were in class and under the supervision of Mrs. O'Connor. During the altercation she received an injury to her left eye. Roxanne, after undergoing four surgeries has lost all vision in that eye.

10 Prior to the incident, Mrs. O'Connor was inside the classroom writing on the chalkboard. The students were seated doing work from their literacy books. While Mrs. O'Connor was at the chalkboard she heard Roxanne screamed. When she intervened, she was told two different accounts of the incident by Roxanne and Shameer. She examined Roxanne's eye and then took both students to the principal, Mrs. Thomas.

11 After she reported the matter to Mrs. Thomas, Mrs. O'Connor was instructed by her to monitor Roxanne for any signs of distress. Roxanne was eventually taken to an ophthalmologist and later referred to the Mandeville Regional Hospital (MRH) where she underwent two surgeries. She was then transferred from the MRH to the University Hospital of the West Indies (UHWI) where two more surgeries were performed on her left eye. She is now unable to see from her left eye.

The Claimant's evidence

12 Roxanne told the Court that on the 14 ^th February, 2006 while she was in class Shameer stabbed her in her left eye with his pencil after he was told by another student that she had said he was gay.

13 She said that prior to being stabbed with the pencil, Shameer had kicked her several times on her foot and she had responded by hitting him on one of his feet. Her pencil fell from her hand and when she bent down to retrieve it, that was the time that Shameer stabbed her with his pencil in her left eye.

14 Roxanne's evidence was that just before this incident, there had been a loud and disruptive conversation in the class about homosexuals. Mrs. O'Connor, at that time, was writing class work on the chalk board. According to Roxanne, she did not attempt to stop the conversation or bring order to the class.

15 It was after she screamed out in pain that Mrs. O'Connor intervened. She, as well as, Shameer was then taken to the principal Mrs. Thomas. Once there, Mrs. O'Connor reported that she was not told what had happened. Mrs. Thomas, Roxanne said, did not make any enquiries and they were taken back to class and Shameer was punished and put to sit elsewhere.

16 At lunchtime her left eye got cloudy and was running. It also felt as if something big was in it. It was hurting her but not as severely as before. While she was playing Mrs. Thomas called her and said that she was going to call her daughter who was a teacher at another school to take her to the hospital. This was more than an hour after the incident had occurred.

17 Roxanne also gave evidence about the psychological effect the loss of her sight has had on her. She was teased at school and called unkind nicknames. This made her cry a lot. She played less with her siblings. She was profoundly affected by the response of her mother and father to her condition. She became very angry and depressed, so much so, that she had to see a psychiatrist and receive counselling.

The evidence of the Claimant's mother

18 Mrs. Venice Peart, Roxanne's mother gave evidence that she was contacted by Mrs. Hibbert, a teacher at her daughter's school and given certain information.

19 She went to the MRH where she saw her daughter and Mrs. Thomas. Roxanne, she said, was in a lot of pain and crying. She was told about the incident.

20 Roxanne underwent two surgeries at the MRH, Mrs. Peart said. She was later transferred to the UHWI where two more surgeries were performed on her left eye. Mrs. Thomas assisted with defraying the costs for Roxanne's surgery and treatment at the UHWI.

21 She spent twenty-two (22) days at UHWI and had to be taken back for frequent check up. Mrs. Peart told the Court that Roxanne was also prescribed glasses. The first pair was paid for by Mrs. Thomas.

22 She also testified as to the psychological impact the loss of the vision had on her daughter. This affected her to the extent that she had to receive counselling.

First Defendant's evidence

23 Shameer was not present at the trial and his witness statement was tendered into evidence by agreement. He was not cross-examined and the Court did not get the opportunity to view his demeanour. All of this will be taken into account when I come to decide the weight that is to be placed on his evidence.

24 He stated that Roxanne was sitting behind him on the day of the incident. He was doing class work when she began teasing him about a girl and poked him several times in his back. He told her to stop and she refused to do so. He was unable to do his work. He said that he turned around and hit at her and his hand caught her in her face.

25 She screamed out loudly and both Mrs. O'Connor and Mrs. Hibbert (the grade 6 teacher) came to where they were and made enquiries as to what had transpired. Shameer stated that Roxanne told the teachers that he had hit her in her eye.

26 He was asked what had happened and he told the teachers his version of the incident. He did not know that his hand had hit her in the left eye and that was not his intention. He apologised to Roxanne. They were taken to Mrs. Thomas, who instructed Mrs. O'Connor to punish him.

Second Defendant's evidence

27 Mrs. O'Connor testified that she was the grade 4 teacher on February 14, 2006. Both Roxanne and Shameer were students in her class. Her...