Be extra careful with children in your care

7 Nov 2016
“My son got hurt at school when a steel post holding a newly planted tree upright, punctured his leg while he and his friends were playing on the school grounds. The school denies any negligence and feels that my son should have kept a sharper eye on possible dangers. Is the school liable, or is my son alone responsible for his damage and injuries?”

When children are placed in the care of any person or institution, be it his parents, the parents of a friend or the school itself, it holds that a greater measure of care, protection and supervision must be applied to ensure that the child does not get hurt.

The courts have over the years stood by the principle that heightened preventative measures must be taken by persons hosting activities for children, or control sites where children are present, or could possibly be present. Children do not necessarily have the same comprehension of danger or potential danger as adults have, and it is the duty of persons responsible for the children to ensure that no danger or potential danger exists in areas where children could possible fall in harm’s way.

When it is determined whether a danger or a possible danger exists, the courts apply a test to establish whether the reasonable person responsible for the child would have foreseen that a danger or possible danger exists, and that the reasonable person would have removed the danger, or made sure that there was no possibility of the child getting near to that particular danger.

It is therefore clear that when it comes to educational institutions, schools and teachers are duty bound to ensure that the area in which children play or could possibly play, is safe. This duty arises from the fact that the school assumes responsibility for the supervision and care of the child.

In your situation, the reasonable person responsible for children would most likely have known, or have foreseen, that the steel posts keeping young trees upright could represent a substantial danger should children play nearby or come into contact with them. It would also be expected that the reasonable school and teachers would ensure that this danger is removed, or that preventative measures are taken which make it impossible for children to get near it.

The Supreme Court of Appeal recently found in the case of Pro Tempo v Van der Merwe, a case with similar facts, that it is a school’s primary duty to keep its learners safe, and that the use of steel posts protruding from the ground that could possibly cause serious injury and damage to children, could not be regarded as fair and reasonable measures to keep trees upright, especially when more suitable and safe methods could be used that would not endanger children.

The court also ruled that schools, apart from the ordinary care to be taken, should take into account the unpredictability of youthfulness and children’s inability to determine danger, and that schools should guard against unforeseen, impulsive behaviour that can arise from that.

In your case, even though the school did not try and hurt the learner on purpose, it can likely be said that they were negligent and should have realised that their failure to keep the school grounds safe was the direct cause of your child’s injuries. My advice is to approach an attorney to assist you in determining the merits of your case against the school.

This article first appeared on the Phatshoane Henney Attorneys July 2016 newsletter.

info@probonomatters.co.za

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