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[2022] ZANCHC 56
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W.M v MEC: Department of Education, Northern Cape and Another (1502/2016) [2022] ZANCHC 56 (7 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
ACID INJURY AT SCHOOL
Delict
– Vicarious liability – School employee leaving drain
cleaner in toilet – Learner experimenting with
chemical –
Suffering burns – Standing order to lock drain cleaner away
– Department liable for proven damages.
IN
THE HIGH COURT OF SPOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: 1502/2016
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
W[....]
M[....]
Plaintiff
and
MEC:
DEPARTMENT OF EDUCATION,
NORTHERN
CAPE
1st Defendant
EK
MOKOPANENG
2nd Defendant
Coram:
Lever J
JUDGMENT
Lever
J
1.
In this matter, the plaintiff sued on
behalf of his minor son W[....] J[....] M[....], also known as
T[....] (hereinafter T[....]
or the victim). At the material time,
being the 12 October 2015, the victim was 11 years old and a learner
at a school under the
auspices of the first defendant. On the said
date the victim suffered certain chemical burns and it is alleged the
first defendant
is liable to compensate the victim for the harm
suffered.
2.
By agreement the question of quantum has
been separated from the merits. At this point in time only the merits
will be considered.
3.
On the relevant school premises and on
the date in question, the victim went to a toilet. After using the
facility, the victim discovered
there was no water to flush the
toilet. He came upon a container of liquid, interchangeably described
as acid or drain cleaner
during the trial. The victim who gave
evidence at the trial maintains that when he came across the said
container, he did not know
it was acid or drain cleaner, but assumed
it was water. Up to that time he had no experience of handling an
acid. He used this
liquid in an attempt to flush the toilet.
4.
The victim testified that when he poured
this liquid into the toilet, it started ‘boiling’, as he
described it. Having
discovered that this was not water it seems a
process of experimentation followed. This ultimately resulted in the
victim or another
learner pouring this drain cleaner into the urinal.
Ultimately, this experimentation resulted in the drain cleaner
splattering
and burning the victim. The victim suffered burns to his
head, face and body. The victim was taken to hospital by ambulance
and
received treatment for his burns in hospital.
5.
This formed the basis for the
plaintiff’s claim, initially against both the first and second
defendants. At the hearing of
this matter the claim against the
second defendant was withdrawn and the plaintiff proceeded only
against the first defendant.
6.
A number of factual disputes became
evident during the course of the trial. These disputes included:
where the liquid was found;
the colour of the liquid; the size of the
container; who poured the acid in the urinal; and how the injuries
were caused.
7.
In order to determine if any of these
disputes are relevant, it is necessary to consider what has been
admitted and what has been
placed in dispute in the pleadings. To the
extent necessary, this will be considered in due course. It would be
convenient to first
consider the issues raised by Mr Lobi who
appeared for the first defendant.
8.
Mr Lobi referred to his cross
examination of the victim where he put the version of Olebogeng
Solomon (Olebogeng) to the victim.
Mr Lobi also put the version of Mr
Mokopaneng, formerly the second defendant, to the victim. Mr Lobi
pointed out that when challenged
by a version that contradicted his
evidence, the victim would reply with words to the effect ‘let
the other witness come.’
Mr Lobi criticised the victim for this
and submitted if evidence contrary to the victim’s version was
put to him one would
expect the victim to object.
9.
In observing T[....] (the victim) giving
his evidence, I formed the view that he was saying nothing more than
‘If that is
the evidence of Olebogeng or Mr Mokopaneng, let
them come and give their evidence. I have given my evidence.’
In other words,
the response of T[....] is really a challenge to let
the defendant’s witnesses come and give their evidence. It must
be remembered
that Mr Lobi was in control of his own cross
examination. Mr Lobi never followed up with ‘What do you mean
by that response?’
or ‘Are you admitting the facts as
alleged by Mr Mokopaneng or Olebogeng?’
10.
In each case Mr Lobi simply left the
victim’s response hanging and did not seek to clarify such
responses. In my view, in
these circumstances, there is no room to
draw an adverse inference against the victim or his testimony. Mr
Lobi had every opportunity
to clarify what T[....] (the victim) meant
by his responses to his cross examination. Mr Lobi did not do so.
11.
Furthermore, when one considers the
admissions made by the first defendant in his amended plea and the
issues as disclosed in the
pleadings, the criticisms and
discrepancies relied on in the evidence by Mr Lobi are essentially
irrelevant.
12.
Mr Lobi, on behalf of the first
defendant, raised the issue of whether the victim (T[....]) was
Culpae Capax
or
Culpae Incapax
at the time of the incident. Mr Lobi submitted that the victim was
not
Culpae Incapax
at the material time. As I understood Mr Lobi’s argument, this
was done for two reasons: Firstly, Mr Lobi raised the issue
of
contributory negligence. In my view, this is a non-starter because,
it was not raised in the pleadings and it was also not properly
canvassed in the evidence; Secondly, Mr Lobi submitted that the
victim was injured at his own hand. That the victim was the author
of
his own misfortune, and the first defendant was not responsible for
such harm. This second issue requires some consideration.
13.
In
making this submission, Mr Lobi relies upon the judgment of Weiner J
in the Gauteng South Provincial Division, in the matter
of
[N…][J…][T…] obo [N…][S…] v ROAD
ACCIDENT FUND
[1]
. Weiner J
relied upon the judgment of Williamson JA in the matter of Jones NO v
SANTAM BEPERK
[2]
, where
Williamson JA held:
“
If
it be decided in any particular case that a child under puberty is
old enough to have and does have the intelligence to appreciate
a
particular danger to be avoided, that he has knowledge of how to
avoid it or of the precautions to be taken against it, and further
that he is sufficiently matured or developed so as to be able to
control irrational or impulsive acts, then it would be proper
to hold
that a failure to control himself or to take the ordinary precautions
against the danger in question is negligent conduct
on his part; in
other words that the child, in relation to the particular acts or
omissions complained of in the particular circumstances,
was
culpae
capax
.”
14.
The
Considerations raised by Williamson JA in the Jones matter
[3]
are all factual enquiries that need to be supported by evidence. The
first defendant has not adduced the required evidence. The
victim has
not given such evidence. The only evidence adduced on behalf of the
first defendant is that of Olebogeng, who after
seeing the bubbling
in the toilet bowl told the victim that the substance was acid. The
evidence of the victim was that he had
prior to the incident not come
across acid before. In cross examination of the victim, this was
never probed. The victim was never
asked whether he understood the
significance of being told by Olebogeng that the substance was acid.
15.
There was no probing in cross
examination as to whether the victim understood the dangers of
handling acid; the precautions to be
observed when dealing with acid;
or had the maturity and ability to avoid irrational or impulsive acts
in handling the said acid.
16.
As the age of the victim at the material
time means that the rebuttable presumption that he was
Culpae
incapax
at such time, works in
favour of the victim, the onus of establishing the abovementioned
facts to rebut the presumption would fall
on the first defendant. The
first defendant has failed to rebut such presumption. Therefore, the
defence raised by the first defendant
that the victim was the author
of his own misfortune for which first defendant is not responsible,
must fail.
17.
The last defence raised by the first
defendant, being that the case first defendant was called upon to
answer was that another learner
had handled the acid in a manner that
led to the harm the victim suffered. Mr Lobi submitted on behalf of
the first defendant that
this was not the case that the plaintiff had
established at the trial. On this issue there are two conflicting
versions, that of
the victim and that of Olebogeng.
18.
Mr Botha, on behalf of the plaintiff,
submitted that the school had effectively conceded that it was
responsible for creating the
circumstances where one of its employees
acting within the course and scope of his normal duties had allowed
the victim to gain
possession of the acid. This was the substance of
the plaintiff’s claim. Mr Botha submitted that it made no
difference if
the victim poured the acid that caused him harm or that
another learner might have done so.
19.
Taking all the facts and circumstances
into account, I believe Mr Botha is correct on the facts of the
present case. In the circumstances
of this case the negligent and
wrongful omission or act was allowing the relevant children, all
approximately eleven years old
at the material time to come into
possession of the acid. This aspect will be dealt with in greater
detail below.
20.
The plaintiff’s case is a
delictual claim. Accordingly, he must establish: an act or omission
by the first defendant or a
person for whom the first defendant is
vicariously responsible, in circumstances where such vicarious
responsibility applies; that
arising from such act or omission
damages resulted to the plaintiff, in the present case to his minor
son; that the act or omission
was negligent and wrongful; and that
the harm suffered is causally connected to the act or omission.
21.
The first defendant is the political
head of the department of education in this province. As such is
responsible for the wrongful,
negligent and/or delictual conduct of
the employees of the said department carried out within the course
and scope of their employment.
22.
It was admitted that the erstwhile
second defendant, Mr Mokopaneng, was an employee of the school at the
relevant time and that
he acted within the course and scope of his
employment and that the first respondent was vicariously responsible
for his acts and/or
omissions carried out within the course and scope
of his duties.
23.
In any event, the evidence clearly
established that Mr Mokopaneng was an employee of the school. It was
also never disputed that
the first defendant was responsible for the
relevant school. The evidence clearly established that Mr Mokopaneng
normally used
drain clear at the relevant time to unblock the drains.
The evidence clearly establishes that this was the practice at the
relevant
time. There was a standing instruction to lock the drain
cleaner in an office in the administrative section of the school when
the drain cleaner was not in use. This establishes that Mr Mokopaneng
was acting within the normal scope of his duties when using
the said
drain cleaner at the time in question.
24.
The act or omission that the first
defendant is responsible for in this case is the failure of Mr
Mokopaneng to secure the drain
cleaner as per the ordinary standing
instruction to lock it in an office in the administrative section of
the school concerned
and creating the circumstances where minor
children, including the victim (T[....]), could gain access to such
drain cleaner. Whether
one accepts the version of Mr Mokopaneng or
that of the victim (T[....]) the act or omission of creating the
circumstances where
a minor learner could gain access to the drain
cleaner has clearly been established on such evidence.
25.
The damages suffered by the victim were
never seriously disputed. Photographs of the injuries to the minor
victim (T[....]) were
discovered and their authenticity and veracity
were not disputed by the first defendant. The first defendant cannot,
in these circumstances
deny that the minor victim suffered the
damages as alleged. This clearly establishes the damages aspect of
the plaintiff’s
claim.
26.
The evidence of the minor victim that
his injuries in the form of the chemical burns he suffered were
caused when the drain cleaner
splattered onto the various parts of
his body establishes causation. The first defendant never challenged
this evidence during
the trial.
27.
From the admitted facts, it is clear
that the first defendant had a legal duty to ensure that the minor
learners in the relevant
school did not suffer harm by coming into
contact with drain cleaner. The standing rule that the drain cleaner
was to be locked
in an office in the administration block of the
school underlines and confirms this aspect. The evidence of Mr
Mokopaneng himself
establishes the standing rule referred to herein.
28.
Clearly, the legal convictions of the
community would require that the drain cleaner be locked away out of
the reach of the minor
learners at the relevant, or any, school to
prevent them from inflicting harm on themselves.
29.
On the facts of this case Mr Mokopaneng
did not live up to this standard. As already established the first
defendant is vicariously
responsible for the acts and/or omissions of
Mr Mokopaneg when he acts within the course and scope of his
employment with the relevant
school. Mr Mokopaneng was clearly acting
within the course and scope of his employment when he attempted to
unblock the drain concerned
with drain cleaner. It emerges from the
pleadings filed in the matter that at the material time use of drain
cleaner was the usual
way in which drains were unblocked.
30.
In these circumstances the
‘wrongfulness’ of the conduct complained of is
established as it runs counter to the legal
convictions of the
community to, by act or omission, create circumstances where minor
P[....] school children could and did gain
access to drain cleaner.
31.
In
considering the question of negligence, the following three questions
need to be considered: Firstly, would the reasonable person
foresee
that damage or harm could result in the relevant circumstances?;
Secondly, would the reasonable person take steps to prevent
such
harm?; and Thirdly, did the first defendant on the facts of this case
take reasonable steps to prevent the harm from befalling
the victim
in this case (T[....])?
[4]
32.
In dealing with the first question,
clearly the authorities at the said school in fact foresaw that
the drain cleaner could
cause harm to the learners at their school,
because on the evidence of Mr Mokopaneng, the standing instruction
was to lock the
drain cleaner out of the way of learners in an office
in the administration block when it was not in use. Clearly, on the
basis
of this fact and given the nature of drain cleaner, a
reasonable person would foresee the danger and harm of allowing minor
learners
access to drain cleaner.
33.
Turning now to the second question,
having regard to the nature of drain cleaner and the damage it can
cause, as evidenced by the
chemical burns the victim (T[....])
suffered in this case, clearly, a reasonable person would take steps
to prevent such harm.
At this juncture it is necessary to repeat that
the first defendant never disputed that the chemical burns suffered
by the victim
were caused by the drain cleaner used by Mr Mokopaneng
at the school in question.
34.
Dealing with the third question set out
above, Mr Mokopaneng, on his own evidence, knew that the standing
instruction regarding
the drain cleaner was that it be locked in an
office in the administration block when it was not in use. Mr
Mokopaneng, on his
own evidence, knew of the risks and harmful
properties in handling the drain cleaner. He gave evidence that when
he used the drain
cleaner, he himself wore a mask and gloves. When
asked in cross examination why he did not take the drain cleaner back
with him
to the administrative block where he ate his lunch, the only
answer he could provide was that he had not yet succeeded in
unblocking
the relevant drain.
35.
Clearly, Mr Mokopaneng gave inadequate
consideration to the risk he created for the relevant learners. His
version of placing the
drain cleaner behind an iron gate made up of
bars which he barricaded with three wheelbarrows is inherently
improbable. It would
have been less trouble to simply carry, what on
his evidence was a one litre container back to where he was having
lunch in any
event, than to create the elaborate barricade, he gave
evidence of.
36.
Furthermore, the first defendant’s
other witness, Olebogeng, directly contradicted Mr Mokopaneng’s
evidence in this
regard. Olebogeng denied the contention that there
were three or any wheelbarrows stacked against the gate inside the
relevant
toilet. Olebogeng’s evidence was that at the time in
question the relevant gate was in any event locked making Mr
Mokopaneng’s
version extremely unlikely, if not impossible, if
Olebogeng’s evidence was correct and having regard to the fact
that the
victim and other children indeed came to be in possession of
the drain cleaner.
37.
The evidence of the victim (T[....])
confirms the evidence of the first defendant’s witness
Olebogeng insofar as the absence
of wheelbarrows in the relevant
toilet is concerned.
38.
In these circumstances the evidence of
Mr Mokopaneng in regard to how he stored the drain cleaner when he
went to lunch is so improbable
that it stands to be rejected. Even if
I am wrong in reaching this conclusion and Mr Mokopaneng’s
version on this aspect
is accepted, it is still negligent. For the
simple reason that the learners concerned still got hold of the drain
cleaner. The
nature of the drain cleaner itself and its properties
require it to be kept out of the reach of learners in a P[....]
school environment.
On the evidence, the authorities at the school
and Mr Mokopaneng knew this. Yet, Mr Mokopaneng failed to take
appropriate steps
to place the drain cleaner out of reach of the
learners at the said school.
39.
The first defendant has admitted that in
the school in question the learners were aged between 7 and 14 years
old.
40.
These factors, in my view, establish the
negligence for which the first defendant is vicariously responsible.
41.
It is also important to point out that
in an alternative basis for the plaintiff’s claim the plaintiff
pleaded that Mr Mokopaneng
was negligent and listed five grounds upon
which Mr Mokopaneng was negligent, being: Firstly, in storing the
drain cleaner in a
place where learners at the school could gain
access to the drain cleaner; Secondly, in not locking the said drain
cleaner away;
Thirdly, by not storing the drain cleaner in an
appropriate place where the learners would not have access to it;
Fourthly, by
not exercising control over the drain cleaner at all
material times and Fifthly, by not making it impossible for children
to gain
access to the drain cleaner.
42.
In response to paragraph twelve of the
amended Particulars of Claim and in the first defendant’s
amended Plea the first defendant
merely notes the allegations under
reply. He does not admit or deny them. Under the provisions of Rule
22(3) of the Uniform Rules
of Court, the first defendant is taken to
have admitted the grounds of negligence set out in paragraph 12 of
the amended Particulars
of Claim.
43.
Clearly, the requirement of negligence
which the first defendant is vicariously responsible for, have been
established.
44.
Accordingly, the plaintiff has
established all the requirements for his delictual claim against the
first defendant and he is entitled
to judgment in his favour on the
merits of the claim.
In
these circumstances, the following Order is made:
1)
Judgment is granted in favour of the
plaintiff on the merits.
2)
The first defendant is ordered to pay
all such damages that the plaintiff can prove was suffered by his
minor son W[....] J[....]
M[....] with identity number [....] as a
result of the incident that occurred at the T[....]2 P[....] SCHOOL
in Kimberley on the
12 October 2015.
3)
The first defendant is to pay the
plaintiff’s costs of establishing its claim on the merits on
the High Court party and party
scale.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
REPRESENTATION:
Plaintiff:
Adv C Botha oio ELLIOTT, MARIS, WILMANS & HAY
Defendant
1
st
:
Mr
LL Lobi oio LULAMA LOBI INC.
Date
of Hearing:
18 June
2021
Date
of Judgment:
07 October 2022
[1]
An unreported judgment with case number 17439/2013. Mr Lobi provided
a copy of the said judgment. There is no SAFLII reference
number nor
is there a date of judgment.
[2]
1965 (2) SA 542
(AD) at 554A-C.
[3]
Above.
[4]
See: Kruger v Coetzee
1966 (2) SA 428
(A) at 430D-F; and Ngubane v
S.A. Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) at 776D-F.