Brief Summary

Delict — Negligence — Duty of care owed by educators — Plaintiff, in her personal and representative capacity, claimed damages for injuries sustained by her minor son at a public school due to alleged negligence of the defendants, who were educators. The minor was injured when he tripped while carrying a kettle of boiling water, which the second defendant had placed in the classroom. The court examined whether the defendants breached their legal duty to prevent harm to the learner while under their supervision. The court held that the defendants owed a duty of care to the learner and that the circumstances of the incident raised questions of negligence, warranting further determination of liability.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a delictual damages action arising from a burn injury sustained by a minor learner during a school-related incident at a public primary school. The plaintiff sued in her personal capacity and in her representative capacity as the mother and natural guardian of her minor son, L, seeking to recover damages allegedly flowing from the incident.

The defendants were, first, the Member of the Executive Council for Education, Eastern Cape Province (cited because the claim was advanced under the statutory scheme governing liability for delicts connected with public school activities), and second, Ms Olivia Dawn Swanepoel, an educator employed at the school and the learner’s class teacher.

At the start of the trial, the parties procured an order separating the merits from quantum, so that only the issue of liability (and not the extent of damages) was determined. The judgment therefore dealt exclusively with whether the defendants were delictually liable for the harm sustained. The general subject-matter of the dispute concerned the scope and breach of an educator’s duty of care during school activities, and whether the State (through the MEC) was liable in terms of the South African Schools Act 84 of 1996.

2. Material Facts

It was common cause that the incident occurred on 2 August 2013 at S[…] P[…] School, Port Elizabeth, that L was a Grade 2 learner at the time, that the school was a public school established under the South African Schools Act 84 of 1996, and that the second defendant was an educator employed by the first defendant and had taught at the school for more than 20 years. It was also common cause that L sustained a burn injury to his left bicep and elbow joint when boiling water from a kettle spilled on him, and that the incident occurred in connection with a school activity, with the statutory exception in section 60(1)(b) not being applicable.

The central factual dispute concerned how the boiling water came to spill onto L, specifically whether the educator had instructed L to carry a kettle containing boiling water across the classroom, or whether L returned to the classroom during break contrary to school rules and accidentally knocked the kettle over.

On the plaintiff’s version, advanced primarily through L’s evidence, the incident occurred shortly before second break while learners were still in the classroom. The kettle, after boiling, was allegedly on the floor at the front of the classroom, and the second defendant allegedly asked L to bring her the kettle for her beverage. L stated that while carrying the kettle across the classroom he tripped over a schoolbag and the boiling water spilled on his left arm, causing the burn. He further stated that the educator told him to rinse his arm under a tap during break, and only after break applied cream to his arm.

On the defendants’ version, given solely through the second defendant’s testimony, the incident occurred during first break after the class had been dismissed and learners had left the classroom. The second defendant said she stayed in the classroom because she had supervision duty later, removed a kettle from a cupboard, placed only enough water for a single cup into it, and plugged it in at a convenient point on the classroom floor. During break, L allegedly returned to the classroom (contrary to the rule that learners were not allowed in classrooms during break), tripped over a schoolbag, knocked over the kettle, and was burned. The second defendant further testified that she applied a bandage from a first aid kit kept in the classroom and asked a colleague to telephone the plaintiff to inform her of the incident.

The court expressly accepted the second defendant’s version as the more probable and credible account of how the incident occurred.

3. Legal Issues

The court was required to determine whether the defendants were liable in delict for harm caused to a learner in the school environment, given the conceded existence of a duty of care. In substance, the dispute was primarily about the application of law to disputed facts, because the outcome depended on which factual version was accepted and, on that version, whether the legal test for negligence was satisfied.

Although the judgment traversed principles of wrongfulness and the existence of a legal duty, the defendants conceded that educators owed young children a duty to act positively to prevent physical harm while under supervision. The court therefore treated the “real issue” as whether there was a negligent breach of that duty (and, implicitly, causation), with the statutory framework determining who must be sued where the claim falls within section 60 of the Schools Act.

A further issue arose in relation to fact-finding: the court had to decide between two irreconcilable versions and assess credibility and probabilities, including whether any adverse inference should be drawn from the second defendant’s pleaded response not setting out her version (which only emerged clearly at trial).

4. Court’s Reasoning

The court located the claim against the first defendant within section 60(1)(a) of the South African Schools Act 84 of 1996, which renders the State liable for delictual damage or loss caused as a result of an act or omission in connection with any school activity conducted by a public school, in circumstances where the public school would otherwise have been liable. The court noted that where section 60 applies, a claimant is obliged by section 60(3) to institute the claim against the MEC, and that it was not disputed that the incident was connected with a school activity and that section 60(1)(b) did not apply.

On the delictual framework, the court referred to Constitutional Court authority confirming that wrongfulness ultimately turns on whether it is reasonable, as a matter of public and legal policy consistent with constitutional norms, to impose liability. In the school context, however, the court accepted the established position that teachers owe young children in their care a legal duty to act positively to prevent harm through misadventure, and concluded that the determinative questions in this case were negligence (and related factual causation), not wrongfulness. This aligned with authorities recognising the duty of care in school settings and treating the practical enquiry as whether the educator acted negligently in the circumstances.

The court applied the test for negligence formulated in Kruger v Coetzee 1966 (2) SA 428 (A), requiring foreseeability of harm, reasonable steps to guard against it, and a failure to take such steps. In applying this standard to school supervision, the court adopted authority emphasising that the degree of supervision required depends on the risk to which learners are exposed, and that the law does not impose constant supervision in all circumstances. It further noted that what can reasonably be expected depends on the circumstances, with scope to avoid imposing undue demands on public authorities and functionaries.

Before applying those principles, the court resolved the factual dispute. It held that the case did not present “mutually destructive” versions in a manner leaving the court unable to reach a conclusion; rather, it involved two irreconcilable accounts, requiring a credibility and probabilities assessment. The court preferred the second defendant’s version for several interconnected reasons. It found that she presented as an experienced and concerned educator, was not prone to exaggeration, and her evidence regarding the presence and use of a first aid kit (provided by her husband, a fireman, who had instructed her in its use) was unchallenged. The court reasoned that the availability and use of first aid made it probable that she would have attended to L’s injury in the way described, which in turn lent support to her broader narrative about the incident occurring during first break, the kettle being kept in a cupboard and used when learners were absent, and her arranging for the plaintiff to be contacted. Conversely, the court regarded L’s evidence that the second defendant effectively “abandoned” him by merely telling him to rinse his arm under a tap as improbable and exaggerated, creating doubt about the reliability of his version as a whole.

The court also rejected the contention that the second defendant’s version should be treated as unreliable because it was not clearly pleaded on her behalf. The court accepted her explanation that she had given her version to her former attorney and treated the deficient plea as a consequence of inept legal representation, rather than as a basis to discredit her testimony.

Having accepted the second defendant’s account, the court assessed negligence by focusing on whether the second defendant should have foreseen the reasonable possibility of harm arising from using a kettle during break in the absence of learners, and whether she took reasonable preventative steps. The court cautioned against reasoning with the “wisdom of hindsight” and concluded that both aspects favoured the second defendant. It reasoned that she appreciated the potential danger of a kettle and therefore stored it in a cupboard and used it during break when learners were expected to be absent; she waited until after the class was dismissed; she used only enough water for one cup; there was an established rule that learners were not to return to classrooms during break; L’s return was unexpected and not shown to be a regular occurrence; and using the kettle under those conditions did not expose learners to a high degree of risk. On that basis, the court held that it was not reasonable to expect the heightened, constant vigilance required when learners are present or on inherently riskier activities such as outings.

Because negligence was not established on the accepted facts, the plaintiff failed to discharge the onus of proving liability. The absence of negligence on the part of the second defendant meant there was no basis for liability on her part, and thus no basis for the first defendant’s liability under the statutory scheme as applied to the pleaded case.

5. Outcome and Relief

The court held that the plaintiff did not prove that the second defendant negligently breached the duty of care owed to L, and therefore did not establish the defendants’ liability on the separated merits.

The defendants were absolved from the instance. The plaintiff was ordered to pay the defendants’ costs.

Cases Cited

Parktown High School for Girls v Hishaam and Another 2019 (1) SA 188 (SCA)

Le Roux v Dey 2011 (3) SA 274 (CC)

Minister of Education and Another v Wynkwart N.O. 2004 (3) SA 577 (C)

Hawekwa Youth Camp v Byrne 2010 (6) SA 83 (SCA)

Gora v Kingswood College and Others 2019 (4) SA 162 (ECG)

Kruger v Coetzee 1966 (2) SA 428 (A)

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)

Rusere v The Jesuit Fathers 1970 (4) SA 537 (R)

Knouwds v Administrateur Kaap 1981 (1) SA 544 (C)

Padayachee v The Road Accident Fund [2020] ZAECGHC (9 June 2020)

Legislation Cited

South African Schools Act 84 of 1996, section 60(1)(a), section 60(1)(b), and section 60(3)

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court found that, although educators owe learners a duty to act positively to prevent physical harm through misadventure, the plaintiff failed to prove on a balance of probabilities that the second defendant negligently breached that duty. On the facts accepted by the court, the educator had taken reasonable precautions by using the kettle only during break when learners were expected to be absent, and the learner’s unexpected return to the classroom did not render her conduct negligent. As negligence was not established, the defendants were not liable, and the defendants were absolved from the instance with costs awarded against the plaintiff.

LEGAL PRINCIPLES

Delictual wrongfulness is determined with reference to whether, assuming the other elements of liability are present, it is reasonable as a matter of public and legal policy consistent with constitutional norms to impose liability for the harm caused.

In the school context, it is accepted that teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained through misadventure while learners are under their care and control; disputes in such matters commonly turn on negligence and causation rather than wrongfulness.

Negligence is assessed in accordance with the test in Kruger v Coetzee 1966 (2) SA 428 (A), requiring reasonable foreseeability of harm, reasonable steps to guard against it, and a failure to take those steps, with the content of reasonable steps depending on the circumstances of the particular case.

The degree of supervision required of school personnel is risk-dependent: constant supervision is not invariably required, and whether heightened vigilance is necessary depends on the hazards present in the learners’ surroundings and activities, assessed without hindsight and with due regard to what can reasonably be expected in context.

M v Member of the Executive Council for Education , Eastern Cape Province and Another (2367/2014) [2020] ZAECPEHC 23 (21 July 2020)