Brief Summary

Delict — Negligence — Duty of care — Plaintiffs sought damages for injuries sustained by the Second Plaintiff while using a "foefie slide" during a school-organized field trip — Plaintiffs alleged negligence on the part of the Defendants due to lack of supervision — Defendants denied negligence, asserting that the Second Plaintiff acted irresponsibly and contrary to instructions — Court held that the Defendants breached their duty of care by failing to adequately supervise the learners, leading to the injuries sustained by the Second Plaintiff.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a delictual action for damages arising from personal injuries sustained by the second plaintiff, who fell from a recreational structure described as a “foefie slide” during a school-organised camp.

The plaintiffs were C[...] B[...] R[...]-C[...] (first plaintiff) and C[...] J[...] R[...] (second plaintiff). The defendants were the Member of the Executive of Education, Gauteng Province (first defendant), Frederick Jacobus Venter (second defendant), and Bayete Resort (Pty) Ltd (third defendant). The claim was framed on the basis of vicarious liability, with the alleged negligent conduct attributed to employees of the first and third defendants acting within the course and scope of their employment.

In the procedural history, the first defendant initially raised a special plea alleging non-compliance with section 3(2) of Act 40 of 2002 (failure to give notice of intention to institute legal proceedings), but this special plea was not pursued at trial. At the commencement of the hearing, the plaintiffs indicated that they would no longer proceed against the second defendant, and an order was made in terms of Rule 33(4) that the trial would proceed only on the merits (with issues of quantum separated).

The general subject-matter of the dispute concerned whether the defendants (through their employees) were negligent in failing to supervise learners adequately and/or failing to prevent the creation of a dangerous situation involving the “foefie slide”, and whether any such negligence was causally linked to the second plaintiff’s injuries.

2. Material Facts

It was common cause that in 2001 the second plaintiff was 17 years and 8 months old, and a Grade 10 learner at Hendrik Verwoerd School. From 21 to 28 September 2001, a group of approximately 50 learners, including the second plaintiff, attended an adventure camp at Bayete Resort, a farm owned by the third defendant. Two teachers, Mr Pienaar and Mrs Du Toit, accompanied the learners. The activities were facilitated primarily by Mr Oberholzer, then 19 years old, an instructor employed by or associated with the third defendant’s operations at the resort, with the teachers performing a supporting disciplinary role.

On Sunday 23 September 2001, the learners were given an afternoon off, with no formal activity programme. Their leisure activity centred on a waterhole (referred to as a “swemgat”) over which the “foefie slide” ran. The slide consisted of a tall wooden ladder-like pylon with two steel cables stretching across the water, with a pulley and handles allowing a participant to slide from a platform into the deeper water.

On the day in question, it was common cause that Mr Oberholzer accompanied the learners to the waterhole, and that the teachers were not present (they had gone on a game drive within the resort). It was also common cause that the learners requested to use the “foefie slide” and that permission was given. The slide became popular, and learners engaged in competitive behaviour, attempting “tricks.”

The second plaintiff attempted a manoeuvre in which he slid while his friend L[...] B[...] clung around his waist. The second plaintiff and his companion fell into the shallow end of the water, and the second plaintiff sustained serious injuries.

Two principal aspects were disputed and treated as material by the court. The first was how long Mr Oberholzer remained at the waterhole after granting permission and what steps he took thereafter, including whether he instructed the learners to stop using the slide and whether he left before ensuring that they complied. The second was what caused the second plaintiff to fall, including whether the fall resulted simply from losing his grip, from an alleged “stalling” of the mechanism, or from the increased load created by carrying another learner’s weight during the slide.

A further factual issue concerned the third defendant’s pleaded reliance on disclaimer/warning signage stating that facilities were used at own risk. The court accepted the plaintiffs’ version (supported by photographic evidence) that there was no disclaimer sign near the “foefie slide” at the time of the incident, and concluded that the relevant signage relied upon was erected after the accident.

3. Legal Issues

The central legal question was whether the plaintiffs had proved, on a balance of probabilities, that the defendants’ employees were negligent in relation to the supervision and control of learners using the “foefie slide,” and whether that negligence was causally connected to the injuries sustained by the second plaintiff.

A connected question was whether a reasonable person in the position of the instructor (and, by extension, the responsible supervisory staff) would have foreseen the reasonable possibility that learners—particularly a learner of the second plaintiff’s age and maturity—would misuse the slide in the specific manner that occurred, and what reasonable steps would have been required to prevent that outcome.

The dispute primarily concerned the application of law to fact. The general legal test for negligence was not controversial, but its application depended on evaluative findings regarding foreseeability, reasonable preventability, and the credibility and reliability of evidence about the manner of the fall and the nature of supervision at the relevant time.

Although the third defendant raised a defence based on “use at own risk” warnings, the court treated the existence and timing of the signage as a factual matter, and its legal significance arose only if the signage had been shown to have been present at the time.

4. Court’s Reasoning

The court approached negligence by applying the test stated by Holmes JA in Kruger v Coetzee 1966 (2) S.A 426 (A), namely whether a reasonable person in the defendant’s position would have foreseen the reasonable possibility of harm and would have taken reasonable steps to guard against it, and whether the defendant failed to take such steps.

In framing the enquiry, the court indicated that the decisive question was not simply whether the instructor was negligent by leaving the waterhole without ensuring compliance with an instruction to stop using the slide. Rather, the court characterised the enquiry as whether a reasonable person in Mr Oberholzer’s position would have foreseen the reasonable possibility that, in his absence, learners would abuse the slide in the particular way that occurred, leading to injury and loss, and whether reasonable steps to prevent that occurrence were omitted.

The court also considered the approach to negligence where children are involved, referring to Rabie v Luk van Gauteng Verantwoordelik vir Ondewys [2006] JOL 17470 (T), together with cases discussing negligence and accountability (including Jones NO v Santam Bpk 1965 (2) SA 542 (A) and Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A)). In applying this approach to the present matter, the court placed weight on the second plaintiff’s age (17 years and 8 months), physical capacity, and demonstrated maturity. The court held that, measured against the standard of a reasonable person in the situation, the second plaintiff’s conduct fell short.

A significant portion of the reasoning concerned the third defendant’s reliance on disclaimers. The court rejected this defence on the facts, finding that the evidence suggested the signage was erected after the incident, and that a photograph taken on the day showed no such sign near the “foefie slide.” The court concluded that the disclaimer defence referred to in Diurban’s Water Wonderland (PTY) Ltd v Botha and Another (as mentioned in argument) was not available on the facts. However, the court emphasised that rejection of the disclaimer defence did not establish liability; the plaintiffs still bore the burden of proving negligence and causation.

The court then evaluated the evidence concerning the mechanism of the fall. It found the second plaintiff’s evidence on what caused him to lose his grip to be unsatisfactory and ambivalent, noting that he initially attributed the fall to losing his grip but later suggested the mechanism “stalled.” The court considered that his version was not supported by other evidence, and rejected it as untrustworthy. The court also rejected the evidence of Ms Sloane, describing it as unexpected and unreliable in the circumstances.

On the probabilities, the court concluded that the second plaintiff fell because of the additional weight of another learner hanging from his waist while he held the handles. From that factual finding, the court reasoned that it was inconceivable that a reasonable person in the position of the instructor would have foreseen that a learner of the second plaintiff’s maturity would attempt to slide while carrying a load of approximately 50 kg hanging from his waist. The misuse was found to be a form of daring behaviour that was not reasonably foreseeable in the circumstances as framed by the court.

Having found that the plaintiffs failed to establish that the defendants’ employees were negligent in the relevant Kruger v Coetzee sense, the court held that the plaintiffs also failed to prove that any actionable negligence was causally connected to the injuries sustained.

On costs, the court acknowledged the general rule that costs follow the result, but took into account the burden the litigation placed on the plaintiffs and exercised a discretion to make no order as to costs.

5. Outcome and Relief

The plaintiffs’ action was dismissed on the merits.

No order as to costs was made, notwithstanding that the defendants were successful.

Cases Cited

Kruger v Coetzee 1966 (2) S.A 426 (A)

Minister of Education and Another v Wyakwart NO 2004 (3) 5 A 577 (c)

Faiga v Body Corporate of Durbanton Oaks and Another 1997 (2) SA 651 (WLD)

CR Rabie v Lid Van die Uitvoerrendo Komltee van Gauteng verantwoorddellk In Onderwys (as described as unreported in argument)

Rabie v Luk van Gauteng Verantwoordelik vir Ondewys [2006] JOL 17470 (T)

Administrator, Transvaal v Van der Merwo 1994 (4) 347 (A)

Langley Fox Building Partnership (PTY) Ltd v Valence 1999 (1) S A (1) (AD)

Weber v Santam Vesekering maatskappy Bpk 1983 (1) 381 (AD)

Jones No v Santam Bpk 1965 (2) SA 542 (A)

Gouws NO v Minister van Gemeenskapbou 1976 (1) PH J33 (N)

Diurban’s Water Wonderland (PTY) Ltd v Botha and Another (referred to in argument; citation not provided in the judgment text)

Legislation Cited

Act 40 of 2002, section 3(2)

Rules of Court Cited

Uniform Rule 33(4)

Held

The court held that the plaintiffs failed to prove that the defendants’ employees were negligent in relation to the second plaintiff’s injury, and failed to establish that any negligence was causally connected to the harm suffered. The court rejected the third defendant’s reliance on disclaimer signage on the basis that the evidence showed the signage was not present at the time of the incident, but held that this did not assist the plaintiffs because negligence and causation were not proved. The action was dismissed, with no costs order made.

LEGAL PRINCIPLES

Negligence is determined by applying the test in Kruger v Coetzee 1966 (2) S.A 426 (A), requiring proof that a reasonable person in the defendant’s position would have foreseen the reasonable possibility of harm, would have taken reasonable steps to prevent it, and that the defendant failed to take such steps.

In assessing negligence involving minors, the enquiry remains tied to the conduct of a reasonable person in the relevant circumstances, with attention to whether the child was sufficiently mature in relation to the specific situation to be expected to meet that standard, as discussed in Rabie v Luk van Gauteng Verantwoordelik vir Ondewys [2006] JOL 17470 (T) with reference to Jones No v Santam Bpk 1965 (2) SA 542 (A) and Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A).

A disclaimer or “use at own risk” defence depends on proof that the relevant warnings were in place at the time and in circumstances capable of supporting the defence; factual findings that signage was erected only after the incident negate reliance on that defence, though the absence of a valid disclaimer does not itself establish liability without proof of negligence and causation.

Where the plaintiff’s version of the mechanism of injury is found unreliable, the court may determine the most probable cause on the evidence and probabilities, and the foreseeability enquiry is then conducted with reference to that probable cause and the specific manner in which harm occurred.

R and Another v Member of the Executive of Education, Gauteng Province and Others (24232/2002) [2009] ZAGPPHC 394 (9 October 2009)