John, an 8-year-old boy, had been playing on a waterslide owned by the Ethekwini Municipality (the “Respondent”). While John was sliding down the slide he was pushed by a child behind him, causing him to lose his balance which resulting in him suffering various injuries. No municipal official was controlling access to the slide or supervising its use at the time of the incident.
The High Court dismissed an action brought by John’s Mother (the “Appellant”), who had sought to hold the Respondent delictually liable for her son’s injuries.
Supreme Court of Appeal (“SCA”):
On appeal to the SCA, the issue was whether the Respondent’s failure to control access to and / or to supervise the use of the slide was wrongful and as a result negligent.
Negligence in the form of an omission is not regarded as prima facie wrongful. Its wrongfulness depends on the existence of a legal duty on a party.
A legal duty may arise when the party in question (in this case the Municipality) had, by lawful prior conduct, created a potential risk of harm to others. The SCA held that in providing the pool and accompanying slide (“Pool Facilities”), the Respondent had created a potential risk of harm to others.
In determining whether a duty ought to be imposed on the Municipality, the SCA noted that in terms of the applicable by-law, only children below the age of 12 were permitted to the Pool Faculties.
The SCA noted, that given the by-law in question, it was reasonably foreseeable, on the part of the Respondent, that those using the Pool Facilities could reasonable be expected to utilize same with a fair degree of immaturity and indiscipline. The applicable by-law at the time made it an offence for any person above the age of 12 to enter the Pool Facilities (as such parents and/or guardians were prohibited from entering and supervising the actions of their children). Significantly attendance to the facility was not made dependent on parental control and supervision. As a result, imposing a duty on the Respondent would not result in an abdication of parental control.
Given the constitutional imperative to consider the best interest of the child in matters concerning the child, the SCA further noted that public policy would require the Respondent to prevent the foreseeable chaotic use of the Pool Facilities which could threatens the safety of children using such facilities.
The SCA concluded that a legal duty was owed by the Respondent to avoid negligently causing harm to persons in the position of the Appellant.
From the expert evidence provided by a qualified mechanical engineer and occupational health and safety consultant the court concluded that it would have been foreseeable to any reasonable official operating the facility on behalf of the Respondent that unattended access by minors to the Pool Facilities could reasonably lead to those using the slide sustaining injuries.
In the circumstances the court concluded that the Respondent had failed to take steps to guard against such an occurrence and as a result it had acted negligently.
The Respondent’s failure to provide supervision or access control was negligent and therefore the Respondent was held delictually liable for the injuries sustained by the Appellant’s son.
Written by Caleb Mckellar and supervised by Anja van Wijk , 17 August 2018