About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 156
|

|

Hawekwa Youth Camp and Another v Byrne (615/2009) [2009] ZASCA 156; [2010] 2 All SA 312 (SCA) ; 2010 (6) SA 83 (SCA) (27 November 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 615/2008
In the matter between:
HAWEKWA YOUTH CAMP FIRST APPELLANT
THE MINISTER OF EDUCATION FOR THE
WESTERN CAPE SECOND APPELLANT
and
GARY MICHAEL BYRNE RESPONDENT
Neutral citation:
Hawekwa Youth
Camp v Byrne
(615/2008)
[2009] ZASCA 156
(27
November 2009)
CORAM: Brand, Mlambo, Malan, Bosielo JJA
et
Griesel AJA
HEARD: 6 November 2009
DELIVERED: 27 November 2009
SUMMARY
: Claim in delict
against Minister of Education – loss resulting from injuries
sustained by child during school excursion under
control of his
teachers – held that injuries caused when child fell from top part
of double bunk bed because of insufficient
barrier on bunk –
further held that resulting loss caused by wrongful and negligent
omissions on the part of teachers – Minister
vicariously liable.
ORDER
On appeal from
: High Court,
Cape Town (Le Grange J sitting as court of first instance).
The appeal is dismissed with costs.
JUDGMENT
BRAND JA
(Malan
et
Bosielo JJA concurring):
[1] The respondent, Mr Gary Byrne, is the father and
natural guardian of Michael Byrne, who was born on 15 June 1995. In
March 2004,
when Michael was almost nine years old and a grade 3
learner at the Durbanville Preparatory School, he accompanied a
school group
under the control of his teachers on a two day excursion
to the Hawekwa Youth Camp site outside Wellington. The group arrived
at
the camp on 3 March where they were accommodated in bungalows.
During the early hours of the next morning Michael was found on the

cement floor of his bungalow. No-one saw how he ended up there, but
he was unconscious and appeared to be having convulsions. He
was
taken to hospital where medical examinations revealed that he had
suffered a fractured skull with underlying brain injuries
which led
to some degree of permanent brain damage.
[2] In the event, the respondent instituted action
against the first and second appellants in the Cape High Court for
the damages
that he and Michael had suffered as a result of these
injuries. The nub of his case was that Michael's injuries could have
been
prevented by the employees of the two appellants, who had
wrongfully and negligently failed to do so. The first appellant
('Hawekwa')
is a company not for gain incorporated in accordance with
s 21 of the Companies Act 61 of 1973. In March 2004 it was the
owner
of the Hawekwa Youth Camp site where the incident occurred. The
second appellant is the Minister of Education in the Western Cape

(‘the Minister’) who was cited in his capacity as employer of
teachers at Government schools within his area of jurisdiction,

including the Durbanville Preparatory School. In his plea the
Minister admitted that he would indeed be vicariously liable in
delict if Michael's injuries were attributable to the wrongful and
culpable acts or omissions of his teachers.
[3] At the commencement of the trial the parties agreed
to and the court a quo (Le Grange J) ordered a separation of issues.
In
terms of the separation order the issues relating to the liability
of the appellants were to be decided first, while those pertaining
to
the quantum of the damages claimed stood over for later
determination. The preliminary issues were decided in favour of the

respondent. Hence the court declared the two appellants liable,
jointly and severally, for the loss resulting from Michael’s

injuries. Leave to appeal to this court against that judgment was
then sought and obtained by both appellants from the court a
quo.
After the appeal was noted, a settlement was, however, reached
between the respondent and Hawekwa with the result that it
played no
further part in the appeal. But, proceedings between the Minister and
the respondent continued.
[4] It is not in dispute that during the night of 3
March 2004 Michael slept on the upper portion of a double bunk.
Likewise it
is common cause that he was not assigned to that bunk but
chose to sleep there. From the outset, the respondent’s contention
as to how Michael ended up on the floor of the bungalow was that he
had rolled from the upper bunk in his sleep because there was
no
barrier – or, at best for the appellants, a barrier which was
ineffective – to prevent him from doing so. The Minister’s

response in his plea was that he had no knowledge as to how Michael
landed on the floor where he was found. But, during the course
of the
proceedings, various alternative suggestions were made on his behalf
as to how the incident might have occurred. To these
suggestions I
shall presently return in more detail. Pertinent for present
purposes, however, is that they gave rise to the major
issue at the
trial, that is: how did Michael come to land on the floor where he
was found? The other issues at the trial resulted
from the denial by
the Minister of the respondent’s further contention that Michael’s
fall could have been prevented if not
for the (a) wrongful and (b)
negligent omissions on the part of the teachers who accompanied and
were thus responsible for the
safety of the group. The court a quo
decided all these issues against the Minister. Hence they were again
presented, albeit in
somewhat different form, for determination on
appeal. The exact nature of these issues will best be understood in
the light of
the background facts that are to follow.
[5] The bungalow where the incident occurred was divided
by cupboards and lockers that ran up to the roof beams along the
middle
of the room. On the right-hand side of the bungalow – as one
entered through the doorway – there were two double bunks and on

the left side there were three. During the night of the incident the
five double bunks were occupied by nine boys and one adult,
referred
to as the volunteer bungalow parent, Mr Moosa Raise. Though it was
his daughter who accompanied the group, he had voluntarily
undertaken
to look after the nine boys in the bungalow during that night.
Michael slept on the top bunk in the far right-hand corner
of the
bungalow while Mr Raise occupied one of the bottom bunks on the left.
Hence his view to where Michael slept was obstructed
by the room
divider of cupboards. The three teachers who accompanied the group on
their excursion were Ms Solomons, Ms Range and
Ms Trollip. They slept
in a separate bungalow on their own.
[6] Mr Raise was called to testify on behalf of the
Minister. Two other volunteer parents who were in charge of other
bungalows
also gave evidence: Mr Roland Oelofse who was called on
behalf of the respondent and Mr Kevin Coetzee on behalf of the
Minister.
It appears to be common cause between the three of them
that the boys retired to their bungalows between 9 and 10 pm and that
by
all accounts they were asleep before midnight on 3 March 2004.
According to Mr Raise, he was awoken at or shortly after 4 am the

next morning by what he described as a 'growling' noise. It was dark
in the bungalow and the boys were asleep. He turned on the
light to
find Michael lying on the floor. Michael was unconscious and
incontinent of urine. Foam was coming from his mouth and
it appeared
as though he was having an epileptic seizure. Mr Raise called Mr
Coetzee and left him with Michael while he went to
the bungalow of
the teachers to alert them. The time when Michael was discovered is
confirmed by Mr Coetzee as well as by Mr Oelofse,
who testified that
he had been woken up, in turn, by Mr Coetzee.
[7] Two of the teachers, Ms Trollip and Ms Ranger, also
testified on behalf of the Minister. The third one, Ms Solomons, had
apparently
emigrated in the interim and was not available to give
evidence. Ms Trollip testified that she was summoned to the bungalow
by
Mr Raise where she also saw Michael lying on the floor. Ms Range
accompanied Mr Raise and Mr Coetzee when they took Michael to the

hospital. Between these witnesses who saw Michael in his injured
state, there was no significant difference as to the condition
he was
in. Moreover, not one of them drew any conclusion other than that
Michael had rolled off the upper bunk in his sleep.
[8] The plea advanced on behalf of the Minister was that
he had no knowledge of the plaintiff's allegation that Michael fell
from
the upper bunk while sleeping. Shortly before the trial,
however, the Minister delivered an expert notice to which was annexed
a report prepared by a neurologist, Dr Johan Reid, who assessed
Michael for purposes of the litigation nearly four years after the

event. The contents of the report – and particularly the thesis
advanced therein – came to serve as the basis for a positive

proposition advanced on behalf of the Minister during the trial,
namely that Michael had not fallen as a result of rolling out
of the
bunk bed during his sleep, but because he had suffered an epileptic
seizure.
[9] The conclusion reached by Dr Reid and his
recommendation that Michael be placed on anti-convulsive medication
caused the respondent
and his wife to seek a second opinion from
another neurologist, Dr James Butler, whose main interest is in
epilepsy. Dr Butler
examined Michael and subjected him to 48 hours of
continuous EEG recordings in order to ascertain the presence or
absence of interictal
(between convulsions) epileptiform discharges.
His evidence was that in a population of people who have epilepsy, 90
per cent or
more of such people will demonstrate interictal
epileptiform discharges on such EEG recordings. Since Michael showed
none of these
symptoms, Dr Butler concluded that Michael did not
suffer from epilepsy – either before or after the event. He also
pointed out
that Michael had no history of clinical seizures in his
entire life. These considerations and others led Dr Butler to decide
that
there was no evidence to support the conclusions arrived at by
Dr Reid and accordingly he expressed the view that it was more likely

that the convulsions observed by Ms Raise and others when they found
Michael on the floor were caused by his brain injury, rather
than the
cause of it.
[10] There is, however, no need to analyse the
difference between Dr Reid and Dr Butler any further. The court a quo
subjected the
testimony of both doctors to close scrutiny. It then
accepted the evidence of Dr Butler and rejected the thesis advanced
by Dr
Reid as unimpressive and implausible. There is no attack on
these findings. On the contrary, at this stage the Minister had
distanced
himself from the conclusions of Dr Reid. Another thesis as
to how it happened that Michael ended up on the floor, which the
Minister
did persist in on appeal, also emanated from the testimony
of Dr Reid. According to this part of Dr Reid's evidence he asked
Michael,
when he assessed him in February 2008, how the incident
happened. Michael then told him, so Dr Reid said, that he and the
other
boys in the bungalow were up until about 3 o'clock in the
morning; that they were boisterously swinging from the open rafters
in
the bungalow; that there was no adult present at the time; and
that in fact, the adult person assigned to their room slept
elsewhere.
[11] Counsel for the Minister sought to find support for
Michael’s account in the fact that the roof beams of the bungalow
were
not covered by the ceiling and that they passed between the left
and right walls above the bunk where Michael slept at about the

height of the cupboard divider in the room. In addition counsel
sought to rely on the evidence of Dr Butler that, though Michael's

memory 'going forward' from the time of the incident could be
expected to be poor, the presence of retrograde amnesia was unlikely.

Finally, counsel found support for his argument in the evidence by Mr
Coetzee that immediately after the incident, a mattress was
found
lying on the floor next to Michael. To my way of thinking, however,
these are no more than indications
that,
when considered in isolation, Michael's version, that he was swinging
from the roof beams when he fell to the floor, could
theoretically be
true.
[12] But as I see it, sight should not be lost of the
fact that Michael told this story four years after an event which
occurred
when he was eight years old. Moreover, according to Dr
Reid’s own evidence, individuals who suffered the same type of
brain injury
as Michael, are known to be manipulative and, in Dr
Reid’s words, ‘to have us on’. What the court a quo found
decisive, however,
and, to my mind, rightly so, is that the theory
based on Michael's report to Dr Reid is simply not to be reconciled
with the evidence
of the Minister’s own witness, Mr Raise. It will
be remembered that according to Mr Raise he was fast asleep in a dark
bungalow
when he was woken up by a growling noise at about four
o’clock in the morning. When he switched on the light all the other
boys
were asleep. The proposition that he slept elsewhere or even
that he was out of the bungalow when the incident occurred, was never

put to Mr Raise. Nor was it suggested to him that he might not have
woken up when the boys in his bungalow were boisterously swinging

from the open rafters above him. To me it seems that the last
mentioned suggestion would, in any event, border on the ludicrous.
[13] Another scenario proposed on behalf of the Minister
for the first time on appeal was that Michael fell to the floor while
he
was voluntarily alighting from the upper bunk in order to visit
the bathroom. In support of this theory counsel sought to rely on
the
evidence of some of the witnesses who found Michael on the floor,
that he was without his sleeping-bag and that there was urine
around
him, coupled with the evidence of his mother that when his
sleeping-bag was returned to her it was wet and smelled of urine.
One
of the conclusions to be drawn from this, so the Minister’s counsel
contended, was that Michael had wet himself during the
night before
alighting from the upper bunk in order to visit the bathroom. The
first problem I have with this scenario proposed
by counsel is that
other explanations present themselves for the facts on which it
relies. So for example, it is equally possible
that Michael had wet
himself after he sustained his head injury. His sleeping-bag could
then have been dropped in the urine at
any time before or after he
had been taken to the hospital and so on and so forth.
[14] My further problem with the proposed scenario is
that it was never raised and hence not properly explored at the
trial. Even
so, I believe there is sufficient evidence to remove this
thesis from the realm of probabilities. First, there is the
uncontested
evidence of Michael’s mother that he had been sleeping
on the top part of a double bunk from the age of two until the
accident
occurred and that he had never fallen off the bunk before.
Her explanation for this was, of course, that his bunk at home had a

proper railing which prevented him from rolling off. But the railing
would obviously not protect him from a fall while he was voluntarily

alighting. This means that Michael must have fallen off for the first
time while alighting from his bunk when he was nearly nine.
In short,
I find it inherently unlikely that a nine year old boy who regularly
slept on a top bunk would fall on his head while
trying to alight
from his bunk. As I see it, the proposed scenario should also be
considered in the light of the evidence to which
I shall presently
return, that the barrier on the bunk used by Michael would as a fact
not be able to prevent him from rolling
off in his sleep, which lends
support to the inference that this is exactly what happened.
[15] I therefore agree with the conclusion arrived at by
the court a quo, that the most likely conclusion to be drawn from the
available
evidence is the one which occurred to all those present at
the time, namely that Michael landed on the floor because he rolled
out of the top part of the double bunk in his sleep. This leads me to
consider the next step in the progression of the respondent’s
case,
namely, his allegation that the direct cause of Michael’s fall was
the absence of an effective railing or barrier on the
upper bunk
which he occupied to prevent him from rolling off in his sleep.
[16] According to the respondent’s particulars of
claim his main contention in this regard was that the bunk used by
Michael had
no railing or barrier at all. This contention was
supported by the evidence of Mr Oelofse who saw nothing of this kind.
It was,
however, in direct conflict with the evidence of Mr and Mrs
Enslin, who both at various times held the position of manager of the

first appellant's Hawekwa Camp. Their version, which must, in my
view, be accepted, was that there was some kind of barrier on
the
bunk that Michael occupied. The reason for the barrier, so the
Enslins explained, was that they actually foresaw the possibility
of
children rolling from unguarded upper bunk beds and injuring
themselves. In an attempt to prevent such an occurrence, they had

affixed planks of wood to these bunks. Photographs depicting such
planks were handed in at the trial as Exhibit A. Mrs Enslin
testified, however, that the planks depicted in Exhibit A were those
present in the girls’ bungalows at the time of Michael’s

injuries. The planks affixed to the bunks in the boys’ bungalows,
she said, were smaller. Indeed, Mrs Enslin sought to explain
the fact
that some witnesses were unsure as to whether or not there were any
planks on the boys’ bunks at all on the basis that
they might have
failed to observe these planks because they were so small.
[17] Mr Enslin’s version was somewhat different from
that of his wife. According to his evidence, all the planks were of
the same
size. However, so he testified, the planks on some of the
bunks in the boys’ bungalows had been fixed in such a manner that
the
portion extending above the mattress, which actually afforded the
protection, was lower than their counterparts in the girls’

bungalows that are depicted in Exhibit A. However, be that as it may,
whatever the exact position might have been, I find the bottom
line
to all this in the concession by Mr Enslin that even the planks
depicted in Exhibit A were insufficient as safety railings
or
barriers to prevent a child from rolling off. Hardly surprising, in
the circumstances, was the evidence that after Michael’s
injury,
new, substantially larger planks were installed on the upper bunks in
the boys’ rooms. What is more, it appears that
when the camp site
came under new management, the barriers on the top bunks were once
again upgraded.
[18] The fact that the planks depicted in Exhibit A were
ineffective as a barrier to prevent someone from rolling off the
upper
bunk was confirmed by the respondent’s expert witness, Ms Du
Toit. She is a medical social worker employed by the Child Accident

Prevention Foundation at the Red Cross Hospital. She concluded from a
study that she did between 1989 and 1993 that bunk bed injuries
are
sufficiently common to merit preventative strategies in the form of
protective railings that complied with safety specifications.
Apart
from the fact that the planks depicted in Exhibit A did not comply
with these specifications, so she testified, they were
obviously not
suitable to serve the purpose for which they were intended, ie to
prevent someone from rolling off the bunk. In the
light of all this I
agree with the finding by the court a quo that, on the probabilities
Michael rolled off the top bunk in his
sleep because there was no
effective barrier to prevent him from doing so.
[19] It was not disputed by counsel for the Minister, as
I understood him, that, with the benefit of hindsight, the teachers
in
charge of Michael's group could and should have prevented the
injuries that he suffered by not allowing him to sleep on a top bunk

which had no effective barrier to prevent him from rolling off in his
sleep. But, as we all know, hindsight does not establish
negligence.
The question remains – can the teachers' omission be characterised
as negligent? And, if so, can their negligent
omission be
characterised as wrongful? In this court there was some debate as to
whether the teachers in charge of Michael's group
assumed the role
in
loco parentis
and what that would entail. I
do not believe, however, that it takes the matter any further. In my
view the issues of wrongfulness
and negligence can be approached from
a position which is not in dispute, namely, that these teachers took
responsibility for the
safety of the group that included Michael.
[20] A substantial portion of the written heads of
argument on behalf of the Minister had been devoted to the element of
wrongfulness.
Contentions in support of the proposition that
omissions on the part of Michael's teachers to prevent his injuries
would not be
wrongful, included the following:
'[The Minister] does not dispute
that [the teachers] owed Michael a duty of care, viz, to take
reasonable measures to ensure that
the environment in which he was to
be accommodated as a learner participating in a school excursion
would be free from risks and
dangers such as could reasonably be
expected to lead to him suffering harm or injury. . . .'
And:
'The duty of care upon [the
teachers] arose from the school's assumption of a role
in
loco parentis.
The
school was bound to exercise the same foresight and care as a
reasonably careful parent in relation to her own children. To
that
end, it is submitted, the school took every step that a reasonable
parent would take to assess the risk to Michael while he
was at the
camp; and furthermore, the school's staff acted reasonably to prevent
any harm to Michael.'
Further arguments were thereupon advanced to support the
submission in the last sentence of the quotation.
[21] As I see it, the quoted contentions are indicative
of a confusion between the delictual elements of wrongfulness and
negligence.
This confusion in turn, so it seems, originated from a
further confusion between the concept of 'a legal duty', which is
associated
in our law with the element of wrongfulness, and the
concept of 'a duty of care' in English law, which is usually
associated in
that legal system with the element of negligence (see
eg
Knop v Johannesburg City Council
1995
(2) SA 1
(A) at 27B-G;
Local Transitional
Council of Delmas v Boshoff
2005 (5) SA 514
(SCA) para 20). Warnings against this confusion and the fact that it
may lead the unwary astray had been sounded by this court
on more
than one occasion (see eg
Telematrix (Pty) Ltd
t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) para 14;
Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) para 11). Nonetheless, it again occurred in this
case.
[22] The principles regarding wrongful omissions have
been formulated by this court on a number of occasions in the recent
past.
These principles proceed from the premise that negligent
conduct which manifests itself in the form of a positive act causing
physical
harm to the property or person of another is prima facie
wrongful. By contrast, negligent conduct in the form of an omission
is
not regarded as prima facie wrongful. Its wrongfulness depends on
the existence of a legal duty. The imposition of this legal duty
is a
matter for judicial determination involving criteria of public and
legal policy consistent with constitutional norms. In the
result, a
negligent omission causing loss will only be regarded as wrongful and
therefore actionable if public or legal policy
considerations require
that such omission, if negligent, should attract legal liability for
the resulting damages (see eg
Telematrix (Pty)
Ltd supra
para 14;
Local
Transitional Council of Delmas supra
paras
19-20;
Gouda Boerdery Bk v Transnet
2005
(5) SA 490
(SCA) para 12).
[23] The separate test for the determination of
negligence is the one formulated by Holmes JA in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G.
According to this test, negligence will be established if:
'(a) a
diligens
paterfamilias
in the
position of the defendant –
(i) would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial
loss; and
(ii) would take reasonable steps
to guard against such occurrence; and
(b) the defendant failed to take
such steps.'
This has been constantly stated
by this Court for some 50 years. Requirement (a)(ii) is sometimes
overlooked. Whether a
diligens
paterfamilias
in the
position of the person concerned would take any guarding steps at
all, and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case.'
[24] Depending on the circumstances, it may be
appropriate to enquire first into the question of wrongfulness in
which event it
may be convenient to assume negligence for the purpose
of the inquiry. On the other hand, it may be convenient to assume
wrongfulness
and then consider the question of negligence first (see
eg
Gouda Boerdery Bpk
para
12;
Local Transitional Council of Delmas
para
20).
[25] In this case I find it convenient to deal with the
question of wrongfulness first, primarily because I believe the
answer to
be self-evident. Properly formulated the enquiry under this
rubric is this: on the assumption that the teachers in charge of the

group could have prevented the harm that Michael suffered and that
they had negligently failed to do so, should they – and by

vicarious extension, the Minister – as a matter of public and legal
policy, be held liable for the loss resulting from such harm?
But for
the confusion between wrongfulness and negligence which transpires
from the Minister's heads of argument, it appears to
me that
wrongfulness had in fact been conceded. What is in effect disputed is
negligence. However, be that as it may, I am satisfied
that
wrongfulness had been established. In this regard I am in full
agreement with the following statement by Desai J in
Minister
of Education v Wynkwart NO
2004 (3) SA 577
(C) at 580A-C:
'It was not in dispute that [the
respondent's minor son] R was injured at school while under the
control and care of the appellants'
employees and it was fairly and
properly conceded that teachers owe young children in their care a
legal duty to act positively
to prevent physical harm being sustained
by them through misadventure. It was submitted that in this instance,
as in many other
delict cases, the real issue is "negligence and
causation and not wrongfulness".'
[26] Reverting to the issue of negligence, the first
question – in accordance with
Kruger v
Coetzee
– is one of foreseeability. Was it
reasonably foreseeable by Michael’s teachers who were in charge of
the group that the upper
bunk which he was supposed to occupy, posed
the danger that he may roll off in his sleep and injure himself? In
support of the
proposition that it was, the respondents adduced the
expert evidence of Ms Nelmarie du Toit. According to her testimony,
studies
at the Red Cross Hospital and elsewhere had shown that the
use of upper bunks as beds for children without the provision of
adequate
railings is notoriously dangerous in that children
frequently roll off these bunks in their sleep in which event they
often suffer
serious injuries which may even be fatal. She also
testified that a considerable amount of publicity had been given to
these studies
in various media. Though the danger related
predominantly to children under the age of five, a good proportion of
occurrences involved
children of about ten.
[27] The Minister’s answer to Ms Du Toit’s testimony
was essentially that she was an expert whose knowledge and experience
could
not be attributed to teachers in general. This response is, of
course, not without validity. Yet, I do not see it as a complete

answer. What Ms Du Toit’s evidence shows is that as an objective
fact unprotected bunk beds posed the risk of serious and even
fatal
injuries to children. The only question is whether her knowledge can
be limited to those who share her expertise. I think
not. Both Mr and
Mrs Enslin, for example, testified that they actually foresaw the
possibility of children falling from unguarded
bunk beds and injuring
themselves. The very purpose of affixing the (inefficient) barriers
to the bunks at the camp site was to
guard against such an
occurrence. That raises the question why a reasonable teacher would
not foresee the danger actually foreseen
by the Enslins. To this
question no answer was put forward on behalf of the Minister and I
can think of none. It strikes me as
a matter of general knowledge
that children frequently roll off their beds in their sleep. In this
light common sense dictates,
in my view, if one should put your mind
to it, that if the fall occurs from the top part of a double bunk, as
opposed to a normal
bed, the risk of serious injury is exponentially
increased simply because of the significant additional height
involved.
[28] What is more, both Ms Trollip and Ms Range
testified that to their knowledge some parents of children attending
these camps
refused to allow their children to sleep on the upper
bunks. As to the reason for this, Ms Range was unfortunately somewhat
evasive.
To the reasonable teacher, the answer would be obvious:
these parents did not wish their children to sleep on upper bunk beds
because
they thought it to be dangerous. As I see it, that would
cause reasonable teachers to apply their minds as to why these
parents
regarded upper bunks as dangerous. Once they did so, even
those reasonable teachers who had failed to realise the inherent
danger
before, would then appreciate the risk of a child rolling off
an unprotected top bunk. In this regard, counsel for the Minister

sought to rely on concessions by individuals such as the respondent’s
expert, Dr Butler, and Ms Range herself, that they had
in the past
allowed their own children to sleep on upper bunks without safety
rails. To my way of thinking, this attitude is probably
attributable
to a failure on the part of these individuals to apply their minds.
The same can, in my view, be said of parents who
attended the camp
and did not object to the bunks as being unsafe. As I have said, I
believe that once a person of average intelligence
applies his or her
mind to the situation, the danger posed by an unprotected bunk
becomes quite plain. Particularly when that reasonable
observer is
alerted by the concern of parents who refuse to allow their children
to sleep on upper bunks because they regard them
as dangerous.
[29] Another argument raised on behalf of the Minister
was that the Durbanville Preparatory School had previously used the
same
campsite for ten years; that the teachers involved had not been
informed of any reported incident where a child had fallen off an

upper bunk; and that they therefore had no reason to think that it
would happen on this occasion. Though this argument might be

superficially attractive, I believe it is flawed. Firstly, the
reasonable teacher would appreciate that incidents might have gone

unreported. Secondly, logic dictates that once a risk has been
recognised as inherently foreseeable, such as, for example, the
one
created by an unfenced swimming-pool, the reasonable person will not
disregard that risk simply because it had never materialised
before.
[30] In sum, I therefore find that Michael's teachers
should reasonably have foreseen that in the absence of an adequate
barrier
affixed to the upper bunk which Michael occupied, there was
the real risk that he may roll off in his sleep and injure himself.

In this light, the next question, according to the
Kruger
v Coetzee
approach, is what steps, if any,
the reasonable teacher would have taken to guard against this
foreseeable danger? As I see it,
the answer is that the reasonable
teacher would examine the beds and consider whether it afforded
effective protection to prevent
children from rolling off in their
sleep. I say that because the obligation imposed on the teacher would
require very little effort
which should be weighed up against the
seriousness of the foreseeable harm that could result from a failure
to do so.
[31] Ms Trollip and Ms Range could not give any clear
evidence as to the nature of the planks on the beds. The inference is
inescapable
that they simply did not look. If these two teachers had
looked, like the reasonable teacher would, they would have realised
that
the planks on the beds did not offer sufficient protection to
prevent a child from rolling off. That much appears to be virtually

common cause. Apart from Ms Du Toit's evidence and the concession by
Mr Enslin to that effect, Ms Trollip accepted, albeit with
the
benefit of hindsight, that the protection offered by the planks was
'ten to one' not enough.
[32] The final enquiry is what the reasonable teacher
would have done once he or she realised that the upper bunk offered
no sufficient
protection. The answer is, I think, that there were
many possible solutions, but, failing all of these, he or she would
have instructed
the children destined to sleep on the upper bunks to
put their mattresses on the floor. That, incidentally, is exactly
what Ms
Range did at the excursions she arranged at the same venue
after the incident where Michael was injured. I do not propose to
introduce
this evidence as the wisdom of hindsight, but to illustrate
that the suggested solution would be adopted by the reasonable
teacher,
because it could be implemented without any difficulty. In
the event, I agree with the court a quo's finding that the harm
suffered
by Michael could have been prevented by the teachers in
charge of his group, who had wrongfully and negligently failed to do
so.
This inevitably leads me to the order that follows.
[33] The appeal is dismissed with costs.
………
..……………..
F D J BRAND
JUDGE OF APPEAL
Griesel
AJA
(
Mlambo JA
concurring
):
[34] The evidence has been fully summarised in the
judgment of my colleague Brand JA. I agree with his conclusion that,
on the circumstantial
evidence, the most probable inference is that
Michael rolled off the top bunk in his sleep and fell because there
was no effective
barrier to prevent him from falling.
1
However, I respectfully disagree that, on those facts, the Minister
should be held liable to the respondent.
[35] In my view, the present appeal affords a classic
example of wisdom after the event. The proper approach to questions
of reasonable
foresight has been formulated by Nicholas AJA in
S
v Bochris Invest­ments (Pty) Ltd & another
2
and followed by this court on many
sub­sequent occasions.
3
He put it as follows:
‘
In
considering this question, one must guard against what Williamson JA
called “the insidious subconscious influence of ex post
facto
knowledge” (in
S v Mini
1963
(3) SA 188
(A)
at 196E–F). Negligence is not established by
showing merely that the occurrence happened (unless the case is one
where
res ipsa loquitur
),
or by showing after it happened how it could have been prevented. The
diligens paterfamilias
does not have “prophetic foresight”. (
S
v Burger
(
supra
at 879D).) In
Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound)
[1961] UKPC 1
;
1961 AC 388
(PC)
([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424 (AC) and at 414G–H
(in All ER):
“
After the event, even
a fool is wise. But it is not the hindsight of a fool; it is the
foresight of the reasonable man which alone
can determine
responsibility.”’
[36] A number of the appellant’s witnesses fairly and
candidly conceded that, with hindsight, it was perhaps unsafe to
allow children
of Michael’s age to sleep on upper bunks without
adequate safety railings. Faced with the stark reality of what had
happened
to Michael, it would have been sur­prising had their
attitude been any different. However, the fact that none of those
witnesses
thought,
before
the event, that it was necessary to take any precautions is
significant.
[37] The plaintiff relied heavily on the evidence of Mrs
Du Toit, as does my colleague.
4
Her opinion was based largely on the results gathered at the Child
Accident Prevention Foundation at the Red Cross Children’s
Hospital
in Cape Town over a five-year-period, from January 1989 to December
1993. The statistics show that a total of approximately
58 000
children were seen at the trauma unit of Red Cross Children’s
Hospital during the relevant period. Of these, falls
accounted for
24 980, of which falls from beds were 3 160 and falls from
bunk beds only 400. She was unable to state
how many of those 400
falls occurred while the child was asleep; nor did she know in how
many cases the falls occurred despite
a safety railing, eg because
the child was playing. We do know, however, that one of the falls was
fatal. In my view, Mrs Du Toit’s
evidence falls short of
establishing that the use of upper bunk beds without safety railings
is ‘notoriously dangerous’, nor
does it establish that children
‘often suffer serious injuries’ as a result of falls from bunk
beds. As I read the results
of the survey, almost 80% of the injuries
resulting from falls from bunk beds were ‘minor in nature, ie
lacerations, contusions
and abrasions’. In short, her evidence does
not assist the respondent in proving that the risk of harm to Michael
should have
been reasonably foreseeable to the Minister’s employees
before the occurrence.
[38] Be that as it may, even if it were to be accepted
that the possibility of harm to the children due to the absence of a
proper
safety railing was reasonably foreseeable, this is not
sufficient to saddle the Minister with liability. What is required,
is the
reasonable foresee­ability of ‘a possibility of harm to
another against the happening of which a reasonable man would take

precautions’.
5
This was echoed 25 years later in the second requirement laid down by
Holmes JA in
Kruger v Coetzee
,
which has been followed ever since.
6
[39] In considering whether any steps ought to have been
taken by the appellant’s employees, the standard of care required
of
them and other persons
in loco parentis
is that of ‘a
reasonably careful parent in
relation to his own children’
.
7
Although it has been suggested during argument before us (albeit
somewhat tentatively) that the standard of care required of a
teacher
or someone else
in loco parentis
should actually be higher than the standard required of a
reasonably
careful
parent in respect of his or her own
child, we have not been referred to any authority in support of such
a proposition, nor am I
aware of any such authority. In my view, the
test enunciated in the authorities referred to above correctly states
the position
in our law. The position in English law is the same,
where the Court of Appeal has held that it would be ‘neither just
nor reasonable
to impose on the school a greater duty than that which
rests on a parent’.
8
I do not read the
dictum
of Desai J in
Wynkwart’s
case, referred to with approval by my colleague,
9
to state anything different.
[40] In essence, therefore, the issue can be reduced to
the question whether a reasonably careful and prudent parent would
allow
his or her 8- or 9-year-old child to sleep on an upper bunk bed
without an adequate safety railing. In the present case, we do not

have to speculate about the answer: the record shows that a number of
parents did just that. According to the evidence, quite a
few parents
accompanied the school group on this particular outing – as they
did on similar outings during ten previous years.
A supervising
parent slept in each of the bungalows with nine of the children. Such
parent was entrusted with full responsibility
for the well-being of
the children while under his or her care. Obviously this fact could
not absolve the teachers from their primary
responsibility for the
care and safety of the group of children. What is significant in the
present context, though, is that there
is no evidence that any of
those parents found it necessary in relation to the children under
their supervision – including their
own children – to prevent
them from sleeping on the upper bunks. The high-water mark for the
respondent was the evidence of one
of the parents, Mr Oelofse, who
testified that he ‘felt a bit nervous’ because of the absence of
adequate safety railings.
Yet even he did not find it necessary to
take any steps to guard against the foresee­able risk of harm.
Must each and every
one of those super­vising parents now be held
to have been guilty of negligence? What about all the other parents
who accompanied
similar groups from Michael’s school (and countless
other schools and youth organisations) to the same venue during the
preceding
ten years and who permitted the children to sleep on the
same bunk beds? Must they now also be branded irresponsible and
negligent
parents? I think not. And if the failure in this case of
the parents to take any preventative steps is not to be regarded as
blame­worthy,
why should the duty resting on the teachers be more
onerous?
[41] My colleague refers to the fact that, prior to the
outing, some parents refused to allow their children to sleep on the
upper
bunks and concludes that this was so ‘because they thought it
to be dangerous’.
10
In my respectful view, however, this merely illustrates that some
parents are by nature more cautious and nervous than others.
This
fact cannot serve to establish negligence on the part of those
parents who did not take any steps to prevent their children
from
sleeping on the upper bunks. After all, we know that the reasonable
parent is not a timorous faint heart, always in trepidation
lest she
or others suffer some injury.
11
For the same reason, parents falling into the more ‘cautious’
category will probably also forbid their children to take part
in
more robust forms of sport, such as rugby, where a risk of serious
injury is certainly not unfore­seeable.
12
Will teachers coaching and supervising rugby matches and practices
and
the parents
allowing their children to participate therein in future be held
liable for damages every time a player should get
injured in the
course of the game? If not, why should the position be any different
with regard to the teachers in the present
scenario? As it was put by
Singleton LJ in
Wright v Cheshire County
Council
:
13
‘
There may well be some
risk in everything one does or in every step one takes, but in
ordinary everyday affairs the test of what
is reasonable care may
well be answered by experience from which arises a practice adopted
generally, and followed successfully
over the years so far as the
evidence in this case goes.’
[42] I have come to the conclusion that the kind of harm
that occurred in this case, even though perhaps reasonably
foreseeable,
is not such that a reasonable parent would have taken
steps to guard against such risk. While one obviously has a great
deal of
sympathy with Michael and his parents for the consequences
suffered as a result of the incident, I am not persuaded that the
Minister’s
employees have been guilty of any culpable act or
omission in this case. In the result, they cannot be held legally
liable for
such consequences. Accordingly I would have allowed the
appeal with costs and would have amended the order made by the high
court
so as to dismiss the respondent’s action with costs.
B
M Griesel
Acting
Judge of Appeal
1
Paras 15 and 18 above.
2
1988 (1) SA 861
(A) at 866J–867B.
3
See eg
Sea Harvest Corporation (Pty) Ltd & another v Duncan
Dock Cold Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA)
para 27;
Minister of Safety and Security and another v
Carmichele
2004 (3) SA 305
(SCA) para 45;
Minister of Safety
and Security & another v Rudman & Another
2005 (2) SA 16
(SCA) para 67.
4
Paras 18 and 26 above.
5
Joffe & Co Ltd v Hoskins & another
1941 AD 431
at
451.
6
Quoted in para 23 above. See also Boberg
The Law of Delict
vol I at p 275;
Bolton v Stone
[1951]
1 All ER 1078
(HL) at 1080 and 1084;
The Council of the Shire
of Wyong v Shirt & others
146 CLR 40 (HC of A) at 47;
Barnard v Santam Bpk
1999
(1) SA 202 (SCA)
at 213H–J;
Mukheiber v Raath & another
1999 (3) SA 1065
(SCA) para 31.
7
Broom & another v The Administrator, Natal
1966
(3) SA 505 (D)
at 518F–519A and the English authorities
referred to therein. See also
Rusere v The Jesuit Fathers
1970
(4) SA 537
(R)
at 539C–D.
8
Van Oppen v Clerk to the Bedford Charity Trustees
[1989] 3
All ER 389
(CA) at 412;
Charlesworth & Percy on Negligence
11ed (2006) paras 8–179; 8–193.
9
Quoted in para 25 above.
10
Para 28 above.
11
Cf
Herschel v Mrupe
1954 (3) SA 464
(A) at 490E–F.
12
See eg
Van Oppen v Clerk to the Bedford Charity Trustees
,
footnote 10 above, at 392a, where rugby football was described
as ‘the most dangerous activity in schools’.
13
[1952] 2 All ER 789
(CA) at 792.