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[2024] ZANCHC 37
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W.L obo M.L v MEC for Education: Northern Cape Provincial Government and Another (493/2016) [2024] ZANCHC 37 (12 April 2024)
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:
PERSONAL INJURY – Slip and trip –
Child
at school
–
Wet
floor in bathroom – Department should foresee reasonable
possibility that failure to keep floor dry could injure
learner –
Should take reasonable steps to guard against such occurrence –
Failed to do so – Evidence demonstrates
omission created
risk of injury – Wrongful omission sufficiently linked to
injury – Fall caused medical condition
– Progressively
worsened until stroke had occurred – Injuries suffered were
caused by negligence of department.
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case Number: 493/2016
Heard: 07 to 11 November
2023
Argued: 26 February 2024
Delivered: 12 April 2024
Reportable: YES/
NO
Circulate to Judges:
YES/
NO
Circulate to Regional
Magistrates: YES/
NO
Circulate to Magistrates:
YES/
NO
In
the matter between: -
W[...]
L[...] obo M[...]
L[...]
PLAINTIFF
and
THE
MEC FOR
EDUCATION:
NORTHERN
CAPE PROVINCIAL GOVERNMENT
FIRST DEFENDANT
THE
SCHOOL GOVERNING BODY: BOEGOEBERG
BRANDBOOM
INTERMEDIARY SCHOOL
SECOND DEFENDANT
JUDGMENT
Stanton
J
INTRODUCTION
:-
[1]
On 08 March 2016, Mr William L[...], on behalf of his then minor son,
M[...] L[...], born on 10 August 2002 (“
M[...]”
),
instituted an action for a delictual claim against the defendants,
the MEC for Education: Northern Cape Provincial Government
(“
the
Department of Education
”) and the School Governing Body for
the Boegoeberg Brandboom Intermediary School (“
the Governing
Body
”).
[2]
The action against the Governing Body was withdrawn on 16 October
2020.
[3]
A notice of substitution was filed on 31 October 2023 as M[...] had
reached
the age of majority.
[4]
The merits and the quantum were separated; and on 11 August 2023 an
order
was granted in terms of Uniform Rule 33(4) that the following
issues should be determined separately from any other issues in the
trial: -
4.1
Whether M[...] had slipped on the wet concrete floor causing him to
knock his
head on the edge of the urinal in the bathroom of the
Boegoeberg Brandboom Intermediary School (“
the school”
);
4.2
Whether M[...] suffered severe injuries in slipping on the wet floor
and knocking
his head on the edge of the urinal; and
4.3
Whether the injuries suffered by M[...] were caused by the negligence
of the
Department of Education.
(“
the
separated issues”)
[5]
According to the particulars of claim, the following are relevant to
the
determination of the separated issues: -
5.1
On or about 02 November 2011, during school hours
and in the afternoon, M[...] attended the boys’
bathroom/changing room;
5.2
Unbeknownst to M[...], the floor of the bathroom/changing room was
wet;
5.3
M[...] slipped on the wet cement floor and knocked his head against
the edge
of the urinal, which resulted in him immediately feeling
pain to the left side of his head and causing him severe injuries
(“
the incident
);
5.4
Due to the injuries sustained in the incident, he did not return to
class, but
became tired and went to rest under a tree. He was
struggling to walk, dragging his leg behind him;
5.5
Three teachers employed by the Department of Education and the
Governing Body
walked past M[...], without offering him any
assistance;
5.6
M[...] embarked the bus with great difficulty and was assisted to his
home;
whereafter he was taken to the Gordonia Hospital;
5.7
As a result of the incident M[...] suffered a severe head injury,
including
brain swelling and permanent hemiparesis to his left side
(“
the injuries
”);
5.8
The Department of Education and the Governing Body owed a legal duty
of care
to all learners on the premises, including M[...], as well as
to the learners who were travelling on the bus to ensure that:
5.8.1
The school premises did not constitute a source of danger to
learners;
5.8.2
All necessary and reasonable precautions are taken to ensure the
safety of the learners;
5.8.3
Systems were put into place to keep the bathroom/changing room clean
and tidy; and that water
would not remain on the floor of the said
area so as to constitute a danger to the learners;
5.8.4
A minor would not be injured whilst on the school premises;
5.8.5
Assistance is given to any pupil, in particular M[...], when it was
clear that he was not well
and needed assistance;
5.8.6
All reasonable steps were taken to ascertain why M[...] did not
return to the classroom after
he went to the bathroom/changing room;
and
5.8.7
M[...] was given such reasonable assistance as was required and as
was evident to them whilst
M[...] embarked and disembarked the school
bus.
(“
the
legal duties”
)
5.9
The defendants wrongfully and negligently breached one or more of the
legal duties.
[6]
According to the Department of Education’s amended plea: -
6.1
The pupils were dismissed early on 02 November 2011; and the incident
had not
occurred during official school hours;
6.2
M[...] went to a bathroom where the floor was dry;
6.3
After the alleged incident, M[...] went to play with friends as
usual, became
tired and had rested under the tree whilst waiting for
the bus;
6.4
M[...] had no visible injuries to his body and he did not require
help;
6.5
M[...] boarded the bus without difficulty; and
6.6
M[...]’s mother informed the principal that the message she had
received
from the doctors is that they “
suspected that
M[...] had had a light stroke
”.
[7]
The Department of Education furthermore denies that: -
7.1
M[...] had slipped and fell, knocking his head on the cement part of
the urinal;
7.2
M[...] had hit his head, which resulted in severe injuries;
7.3
M[...] had sustained any injuries;
7.4
The school premises constituted a danger to either M[...] or the
other learners;
7.5
The floor of the bathroom was wet or had in any way posed a danger to
any of
the learners; and
7.6
M[...] was injured on the school premises.
[8]
The Department of Education specifically pleaded that the bathrooms
are
cleaned after school hours. It did not, however, plead that
M[...]’s negligence had contributed to the incident.
THE
PLAINTIFF’S EVIDENCE:-
[9]
During his examination in chief,
M[...] testified
that:-
9.1
He was in Grade 3 when the incident happened, that it happened during
November
2011, but that he could not remember the date;
9.2
He completed Grade 12 at the school in 2020;
9.3
He was in Ms Geyer’s class, but she had left that day to attend
a workshop.
The class was then divided into groups, and he went
in a group to Ms Faro’s class for the day from 10:00 to 13:00.
The school had two breaks per day. After the first break,
he went to Ms Faro’s class. After the second break,
he
went to class, sat on the carpet, and requested Ms Faro’s
permission to leave the room. He left with her permission
and
went to the bathroom;
9.4
After urinating, he tucked in his shirt, fastened his pants and
stepped off
the cement block of the urinal. As he stepped off,
he slipped in water, fell and hit his head behind his right ear
against
the cement block. He lay there for a little while,
rubbing his head, whereafter he stood up and walked slowly back to
class.
He felt “drunk” or “dizzy””
and a little sore, but he was not in pain.
9.5
After school adjourned, he walked slowly and went to sit under a tree
to wait
for the bus. He did not play with his friends as his
head was still dizzy. His last memory was of sitting under the
tree watching the children play. He could not remember getting
on or off the bus. His first recall thereafter was when
he was
in the ambulance in front of the hospital;
9.6
He demonstrated the physical result of the injuries and explained
that he has
a permanent claw-like left hand, that he cannot use his
left arm as before and that he cannot extend his fingers. Three
photographs
depicting the result of the injuries were handed in as
exhibit B;
9.7
Nobody was inside the bathroom with him when he fell, and nobody
enquired from
him as to what had happened;
9.8
He did not feel dizzy before the fall; and
9.9
On being referred to the photographs that his sister took on 14 June
2019 of
the bathroom where he fell (“the photographs”),
he confirmed that: -
9.9.1
He fell in the bathroom depicted in the photographs;
9.9.2
He notices the water and the old water stains on the floor; and
9.9.3
He could not remember if the wall looked the same on 02 November 2011
or whether there was always
water on the floor, and that he doesn't
know where the water had come from on 02 November 2011.
[10]
When cross-examined: -
10.1
M[...] testified that the incident happened a long time ago;
10.2
He explained that he asked Ms Faro to leave the classroom, but he did
not ask to go to the bathroom
as it was normal for a teacher not to
ask; and she knew where he was going;
10.3
When it was put to him that Ms Faro will testify that he was not in
her class the day of the
incident, he persisted that he was in her
class;
10.4
With reference to the photographs, he conceded that he could not
remember whether the conditions
on 02 November 2011 where identical
to the conditions as depicted in the photographs;
10.5
He testified that when he entered the bathroom on 02 November 2011,
he noticed that the floor
had some wet spots of water, but that it
was dry at the door and at the base to the urinal.
10.6
He reiterated that he stood on the cement block and had stepped off
onto the floor;
10.7
On why he didn't step on a dry spot, he answered that he did not see
the wet spot as he had his
back to the floor. He also
elaborated that he could not have reached the dry area as it was too
far, and even if he had jumped,
he would have slipped and fell;
10.8
He did not get any stitches and he also did not have any visible
bruises as a result of the incident;
10.9
He repeated that no teachers enquired about his welfare;
10.10
With reference to a note on the Gordonia Hospital patient record of
03 November 2011, reflecting that he
had fainted, he was adamant that
he hadn’t fainted but had slipped and fell; and that he doesn't
know where the doctor got
that information;
10.11
On being confronted by further notes on the Gordonia Hospital patient
record of 03 November 2011 that states
a doctor “
thinks RMCA
might have caused the fall
” and “
young CVA
”,
he persisted that he did not faint, but had slipped and fell;
10.12
He couldn't comment on whether young children could suffer strokes;
10.13
He disagreed with a statement that Mr van der Westhuizen, the
principal, would testify that the school activities
were not normal
on 02 November 2011. He explained that is not what he
remembers.
10.14
He repeated that he went to Ms Faro’s classroom after Ms Geyer
left; and
10.15
He denied Ms van Staden finding him lying on the floor and asking
whether he was “okay” after
she was told by a learner
that he had fallen in the bathroom and was lying on the floor.
[11]
During re-examination, M[...] confirmed that: -
11.1
He had informed the doctor that he had fallen, not that he had
fainted;
11.2
He explained that he got off the cement block in the manner he did as
it was the safest way to
exit the bathroom; and
11.3
he never suffered any dizzy spells prior to the incident.
[12]
Mr DP Prins, a cleaner in the employ of the school from 2012 until
2019, testified
that: -
12.1
He would clean the boys’ bathrooms after school, prior to the
school commencing, and after
it had adjourned for the day;
12.2
During his time of employment at the school the bathrooms were always
very dirty, and the floors
were very wet.
12.3
With reference to the photographs, he stated that: -
12.3.1
The stains on the floor were caused by water as the floors are often
wet as a result of the urinal’s being
clogged up with paper and
rubbish, causing water to spill over; and
12.3.2
The condition of the bathroom as depicted on the photographs are
similar to the conditions he saw daily during
2012.
[13]
When cross-examined, Mr Prins conceded that he could not comment on
the conditions
of the bathroom during November 2011. On being
re-examined, Mr Prins testified that he often found the bathroom in a
very
dirty state, as depicted on the photographs, but that he would
then clean it up. He also reiterated that he did not clean
the
bathrooms between 12:00 and 13:00 as he would usually clean the
classrooms first.
[14]
Mr Benjamin Jonkers testified in chief that: -
14.1
M[...] is his nephew;
14.2
On 02 November 2011, he was a learner at the school in Grade 8;
14.3
When school adjourned for the day on 02 November 2011, on his way to
the bus, someone asked him
why M[...] is sitting under the tree. He
went to help M[...] up from where he was leaning against the tree.
He helped
M[...] to and into the bus as he was struggling to
walk by himself;
14.4
He noticed that M[...]'s clothes were wet and full of soil on the
right side of his body;
14.5
He assisted M[...] to get off the bus. M[...] could only walk
slowly; and he was unbalanced;
14.6
He asked his sister, Brumhilda L[...], to carry their bags;
14.7
He put M[...] on his back and carried him home; and put him on his
bed;
14.8
M[...] could not speak and he was slurring; and
14.9
He could not remember whether M[...]'s father and mother was at home
when they arrived.
[15]
On being cross-examined, Mr Jonkers: -
15.1
Persisted that he assisted M[...] to get into and off the bus, and
that he carried him home,
despite the fact that M[...] did not
testify about this;
15.2
Asked M[...] what was wrong with him, but he could not talk;
15.3
Was adamant that he had helped M[...] into and off of the bus; and
15.4
Said he could not remember whether there were any teachers either on
the playground when M[...]
was leaning against the tree; or on the
bus.
[16]
Miss Brumhilda L[...] in essence corroborated Mr Jonker’s
evidence pertaining
to:
16.1
M[...] having struggled to walk to the bus;
16.2
The assistance Mr Jonkers provided to M[...] to get him into and off
the bus;
16.3
Mr Jonkers having carried M[...] on his back; and
16.4
M[...] not speaking or reacting when he was put on his bed.
[17]
In addition, Ms L[...] testified that: -
17.1
When they disembarked from the bus, she too helped M[...] and had
carried the bags;
17.2
There was something wrong with M[...] and he spoke with difficulty;
17.3
02 November 2011 was a Wednesday and that school had adjourned as it
normally did, which was
earlier than on Tuesdays and Thursdays; and
17.4
She could not comment on the condition of the boys’ bathroom,
but she added that the girls’
bathroom was always dirty with
water on the floor.
[18]
When cross-examined, Ms L[...] persisted with the version she
provided during her
examination in chief. She explained that
the help she provided was to carry the bags and to help Mr Jonkers
keep M[...] steady.
When it was put to her that Mr Jonkers did
not testify that she assisted him to keep M[...] steady, she stated
that she only
helped him a little bit.
[19]
Dr Z Domingo, a neuro-surgeon, was called to testify as an expert on
M[...]’s
behalf. During his examination in chief, he
restated his opinion, contained in his report, dated 15 December
2017, of which
the following is pertinent: -
19.1
He examined M[...] in the presence of his father on 10 April 2017;
19.2
In addition to his physical assessment of M[...], he also studied the
medical records of the
Gordonia Hospital that reflect the following
pertinent notes: -
“
02
November 2011 -11:00 pm
M[...]
fell at school
Since
this afternoon he has decreased power left side of the body,
specifically the left arm
02
November 2011 -11:30 pm
Apparently
well until fall this morning at school
?
circumstances
?
part of body that made contact with the floor
Tongue
deviated to the left
Left
sided hemiparesis
Upper
limb power grade of 1/5
Lower
limb power grade 4/5
Assessment
Left
hemiparesis
?
cause of the intracranial pathology
For
CT scan
03
November 2011
Telephonic
report:
Right
middle cerebral artery infarct
03
November 2011
Child
fainted in toilet
Then
depressed level of consciousness
Scanned
- right middle cerebral artery infarct
08
November 2011
Young
CVA
Right
middle cerebral artery infarct
Left
hemiparesis
11
November 2011
Final
diagnosis – young CVA
CT
– right middle cerebral artery infarct”
[20]
Dr Domingo: -
20.1
With reference to his assessment of M[...] and the hospital record,
confirmed that the CT scan
confirmed the diagnosis of a right middle
cerebral infarct; and the absence of any evidence of any intracranial
trauma, as a result
of which M[...] has been left with clinical
evidence of left hemiparesis affecting his arm more than his leg;
20.2
Expressed his opinion that there is no doubt that M[...] sustained a
middle cerebral infarct,
as demonstrated on the initial CT scan; and
that M[...]’s clinical picture, progress in the ward and
current physical deficits
are in keeping with this diagnosis;
20.3
Stated that there is no evidence that M[...] sustained a significant
traumatic brain injury and
his current problem is not as a result of
a traumatic brain injury, but a slow progressing cerebral infarct;
20.4
With regard to the cause of the middle cerebral infarct, and the
causal relationship to the fall
at school, opined that in view of the
fact that the weakness developed over a period of a few hours, and he
was initially able
to stand and walk home, that it is highly unlikely
that the fall was as a consequence of an infarct;
20.5
Explained that it appeared from the hospital records that there were
no underlying factors which
placed M[...] into a high-risk category
of having a stroke; and
20.6
Opined it to be highly probable that he sustained a carotid artery
injury when he fell which
resulted in a carotid artery dissection,
which then resulted in a stroke.
[21]
Dr Domingo furthermore: -
21.1
Testified that he examined M[...] on 08 November 2023 and found no
change in his condition or
functioning since 18 April 2017;
21.2
Confirmed his final diagnosis of a right middle cerebral artery
infarct as a result of the fall.
He added that the result of
the injury would not be immediate, but would take time to develop;
21.3
Restated that he was absolutely certain that M[...] did not have a
stroke before he fell as he
could still stand up and walk to the
tree;
21.4
Explained that M[...]’s cerebral artery was most likely
stretched as a result of the fall,
which caused the blood to divert
into the cavity, which reduced blood flow to the brain; and
ultimately caused the infarct;
21.5
Confirmed that the CT scan confirmed an infarct and no intracranial
bleeding or a haemorrhage;
21.6
Testified that M[...]’s blood pressure was normal when he
assessed him in 2017 and Dr SM
Nhlapo’s report, dated 12
October 2020 also confirmed that M[...] does not suffer from high
blood pressure;
21.7
Explained that: -
21.7.1
A stroke as a result of high blood pressure would result in a
haemorrhage, which M[...] clearly did not have
according to the CT
scan;
21.7.2
M[...]’s infarct was caused by a whiplash type injury, which
does not require severe trauma; and would
not always cause external
bruising;
21.7.3
The type of injury sustained by M[...] was caused by a fall, which
resulted from a change of movement of the
neck, almost like a
whiplash type injury which could only have happened had he fallen and
knocked his head. He referred the
court to seven articles,
recorded in academic literature, where similar incidents caused
similar injuries in young children. In
one instance a young
9-year old girl suffered a stroke after a minor cerebral trauma 20
days after she was hit by a volleyball;
21.7.4
The force of the impact is irrelevant and even a mild force could
give this effect as a result of the change
of movement of the neck,
which causes a tear or dissection in the carotid artery, which would
then result in the artery becoming
blocked, and as a result thereof,
blood would not be able to reach certain parts of the brain.
[22]
Dr Domingo’s evidence was not placed in dispute when he was
cross-examined,
and he persisted with his explanations, findings and
conclusions. The Department of Education did not call a medical
expert
to testify on its behalf.
THE
DEFENDANT’S EVIDENCE: -
[23]
Ms Geyer testified that: -
23.1
She was M[...]'s class teacher on 02 November 2011; and
23.2
The school was dismissed at 10:00 as some teachers had to attend the
SATU workshop in Upington.
[24]
She denied that the pupils were divided into groups or that M[...]
was in a group
that was placed in Ms Faro’s class.
[25]
Ms Faro corroborated Ms Geyer’s evidence about the school
adjourning early
on 02 November 2011; and that M[...] was not placed
in her class. She also denied that M[...] asked her whether he
could
leave the classroom. According to her evidence: -
25.1
She did not attend the SATU workshop, but remained at school;
25.2
She was on her way to the bus with Ms van Staden when some learners
approached them and informed
them that M[...] had fallen in the
bathroom;
25.3
On the way to the bathroom, they met M[...] outside and he informed
them that he was “okay”;
25.4
She checked M[...] for injuries, but saw none and his clothes were
dry and unsoiled;
25.5
She and Ms van Staden inspected the bathroom and found same clean and
dry;
25.6
She and Ms van Staden reported the incident to the principal, Mr van
der Westhuizen;
25.7
While waiting for the bus, M[...] played with the other learners; and
25.8
M[...] alighted the bus without any assistance; and also walked on
his own when he got off the
bus.
[26]
Ms Faro’s evidence when cross-examined was not seriously
disputed. She,
however, did state that she did not know where
M[...] fell in the bathroom. Ms Faro became confused when
confronted with
a statement that M[...] used the senior bathroom
depicted on the photographs; and she stated that they inspected the
junior boys’
bathroom. Later she testified that “
Ek
is regtig nie nou seker of dit die junior of die senior toilette is
nie. Ek kan nie nou sê nie.”
She conceded
that M[...]’s clothes may have been wet; and that she perhaps
did not notice it; and that M[...] could have been
injured, but she
did not notice that as she is not an expert. She also agreed
that when she inspected the boys’ bathroom
on previous
occasions, she found the floor to be wet and that the floor had
stains caused by water.
[27]
Ms S van Staden, a grade R teacher at the school on 02 November 2011,
testified and
corroborated Ms Faro’s evidence in all material
respects, save to add that she asked M[...] if he had fallen, to
which he
answered in the affirmative. She did not ask him where
or how he fell. When she was referred to the photographs, she
conceded that the stains on the floor were made by water that had
dried up. She was adamant that she and Ms Faro inspected
the
junior bathroom and not the senior bathroom depicted in the
photographs.
[28]
Mr DC van der Westhuizen, the principal of the school from 1990 to
2021: -
28.1
Confirmed that the school adjourned at 10:00 on 02 November 2011;
28.2
Had inspected the bathroom after the incident had been reported to
him and found same to be clean
and dry;
28.3
Attempted to explain the condition of the bathroom as depicted on the
photograph by referring
to three incidents of vandalism to the
bathrooms, which occurred during 2018/2019 and 2020; and
28.4
Testified during cross-examination that in addition to having the
bathrooms cleaned after school,
it is also cleaned after every break.
He conceded that his evidence in this regard was not contained
in the pleadings, and
that it was also not confirmed by Mr Prins when
he had testified.
APPLICABLE
LEGAL PRINCIPLES: -
[29]
It
is trite that the plaintiff bears the overall
onus
to prove his or her claim
on a balance of probabilities. In
Stacey
v Kent
[1]
,
Kroon J, writing for the
majority of the full bench, put it in this way: -
“…
The
enquiry at the conclusion of the case remains whether the plaintiff
has, on a balance of probabilities, discharged the onus
of
establishing that the collision was caused by negligence attributable
to the defendant. In that enquiry the explanation tendered
by the
defendant will be tested by considerations such as probability and
credibility.”
[30]
The application of the balance of probability
test, where there are two factually different versions before court,
has been enunciated
as follow: -
“
In
deciding whether the plaintiff has discharged the onus of proof, the
estimate of the credibility of a witness will be inextricably
bound
up with a consideration of the probabilities of the case and, if the
balance of probabilities favour the plaintiff, then
the Court will
accept his version as being probably true. If however the
probabilities are evenly balanced in the sense that they
do not
favour the plaintiff'’s case any more than they do the
defendant's, the plaintiff can only succeed if the Court
nonetheless believes him and is satisfied that his evidence is true
and that the defendant's version is false. It is not desirable
for a
Court first to consider the question of the credibility of the
witnesses and then, having concluded that enquiry, to consider
the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry.”
[2]
[31]
In
casu
, according to the particulars of claim, M[...]’s
claim is based on a wrongful omission. In summary, in the
present
circumstances, this Court must first decide whether M[...]
has established that there was an omission in relation to the harm
that
forms the basis of his claim. Then, assuming that M[...]
establishes such an omission, this Court must secondly decide whether
the omission on the part of the Department of Education was wrongful.
In the third instance, this Court must consider whether
there
was fault on the Department of Education’s part in the
particular circumstances of this case. Finally, this Court
must
consider whether M[...] has established both factual and legal
causation in relation to the harm he has suffered; and in respect
of
the question of legal causation, whether as a matter of public
policy, the Department of Education should be held liable for
the
harm.
[32]
The
Supreme Court of Appeal in the matter of
McIntosh
v Premier Kwazulu-Natal
,
[3]
with reference to the judgment in
Trustees
,
Two
Oceans Aquarium Trust v Kantey & Templer
(
Pty
)
Ltd
[4]
reaffirmed as follows: -
"Negligent
conduct manifesting itself in the form of a positive act causing
physical damage to the property or person of another
is prima facie
wrongful. In those cases, wrongfulness is therefore seldom
contentious. Where the element of wrongfulness
becomes less
straightforward is with reference to liability for negligent
omissions and for negligently caused pure economic loss
(see
eg Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) ([2002]
3 All SA 741)
in para [12]; Gouda Boerdery BK v
Transnet 2005(5) SA 490 (SCA) ([2004]
4 All SA 500)
in para [12]).
In these instances, it is said, wrongfulness depends on the exis
tence
of a legal duty not to act negligently. The imposition of such
a legal duty is a matter for judicial determination involving
criteria of public or legal policy consistent with constitutional
norms."
..
when we say that negligent conduct… consisting of an omission
is not wrongful, we intend to convey that public or legal
policy
considerations determine that there should be no liability; that
the potential defendant should not be subjected to
a claim for
damages, his or her negligence notwithstanding. In such event,
the question of fault does not even arise.
The defendant enjoys
immunity against liability for such conduct, whether negligent or
not…."
The
second inquiry is whether there was fault, in this case negligence.
As is apparent from the much quoted dictum of Holmes
JA in
Kruger
v Coetzee
,
[5]
the
issue of negligence itself involves a twofold inquiry. The
first is; was the harm reasonably foreseeable? The
second
is; would the diligens paterfamilias take reasonable steps to
guard against such occurrence and did the defendant fail
to take
those steps? The answer to the second inquiry is frequently
expressed in terms of a duty. The foreseeability
requirement is
more often than not assumed and the inquiry is said to be simply
whether the defendant had a duty to take one or
other step, such as
drive in a particular way or perform some or other positive act, and,
if so, whether the failure on the part
of the defendant to do so
amounted to a breach of that duty. But the word "duty",
and sometimes even the expression
"legal duty", in this
context, must not be confused with the concept of" legal duty"
in the context of wrongfulness
which, as has been indicated, is
distinct from the issue of negligence. I mention this because
this confusion was not only
apparent in the arguments presented to us
in this case but is frequently encountered in reported cases.
The use of the expression
"duty of care" is similarly a
source of confusion. In English law "duty of care" is
used to denote both
what in South African law would be the second leg
of the inquiry into negligence and legal duty in the context of
wrongfulness.
As Brand JA observed in the Trustees, Two Oceans
Aquarium Trust case, at 144F, "duty of care" in English law
"straddles
both elements of wrongfulness and negligence.
The
crucial question, therefore, is the reasonableness or otherwise of
the respondents' conduct. This is the second leg of
the
negligence inquiry. Generally speaking, the answer to the
inquiry depends on a consideration of all the relevant circumstances
and involves a value judgment which is to be made by balancing
various competing considerations including such factors as the degree
or extent of the risk created by the actor's conduct, the gravity of
the possible consequences and the burden of eliminating the
risk of
harm. See e.g. Cape Metropolitan Council v Graham
2001
(1) SA 1197
(SCA)
[also reported at
[2001]
1 All SA 215
(A)
- Ed] paragraph 17. Where, however, a public authority is involved a
further consideration arises. It is this: a court
when
determining the reasonableness or otherwise of an authority's conduct
will in principle recognise the autonomy of the authority
to make
decisions with regard to the exercise of its powers. Typically,
a court will not lightly find a public authority
to have failed to
act reasonably because it elected to prioritise one demand on its
possibly limited resources above another.
Just where the line
is to be drawn is no easy matter and the question has been the
subject of much judicial debate both in England
and other
Commonwealth countries. See e.g. Stovin v Wise
[1996] UKHL 15
;
[1996] AC 923
(HL); Gorringe v Calderdale Metropolitan Borough Council
[2004] UKHL 15
;
[2004]
2 All ER 326
(HL); Barratt v District of North Vancouver (1980)
11
4
DLR(3
rd
)
577 (SCC); Brodie v Singleton Shire Council (2001) 20
6
CLR
51
2
(HC of A) paragraphs 161 – 162. But whether the criterion
to be applied is ultimately one of rationality or some other
principle is unnecessary to decide. What, I think, is clear is
that if in the actual implementation of
a
policy or procedure adopted by the authority, or for that matter in
the course of its operations, foreseeable harm is suffered
by another
in consequence of a failure on the part of the authority's servants
to take reasonable steps to guard against its occurrence,
a court
will not hesitate to hold the authority liable on account of that
omission…”
THE
APPLICATION OF THE LEGAL PRINCIPLES TO THE EVIDENCE: -
Ad
omission:-
[33]
It is not in dispute that M[...] fell. It is, however, in
dispute whether M[...]
slipped and fell as a result of water on the
bathroom floor.
[34]
In view of the pleadings and the evidence, I am persuaded that
the probabilities are overwhelming that there
was water on the floor, and therefore constitutes an omission by the
Department of
Education. I come to this conclusion as a result
of the following:-
34.1
M[...]’s evidence that the school did not adjourn at 10:00 is
contradicted by the evidence
of all of the Department’ of
Education’s witnesses. Despite inconsistencies in
M[...]’s evidence, which
I regard as immaterial, I take into
consideration the fact that he was 9-years old when the incident
occurred; and that he only
testified 12 years after the incident;
34.2
I was, however, favourably impressed by
M[...]’s evidence in respect of the fall and the reason for
having fell.
His evidence was consistent throughout
examination in chief and cross-examination and it was not disputed in
cross-examination
that he had slipped and fell
as
a result of water on the floor;
34.3
In my assessment, I found
Ms Faro and Ms Van Staden’s
evidence somewhat unsatisfactory for the following reasons: -
34.3.1
The evidence of both these witnesses contradicts the plea that a
report was made that M[...] was lying
on the floor of the bathroom as
this was not their evidence;
34.3.2
Ms Van Staden’s evidence also contradicts what was put to
M[...] in cross-examination, in that she
would testify that she found
him lying on the floor of the bathroom;
34.3.3
M[...], Ms L[...] and Mr Jonker’s evidence was that M[...]’s
clothes were wet. Ms Faro
initially persisted in her
examination in chief that his clothes were dry, but when
cross-examined, she conceded that it could
have been wet;
34.3.4
Ms Faro and Ms Van Staden both testified that nothing was wrong with
M[...] and that he immediately went
to play with his friends. The
plea, however, stipulates that “..
M[...] recovered to play
with his friends as usual.”
Furthermore, in reply to
a request for trial particulars when asked what is meant by “
M[...]
recovered”
it was stated that: “
M[...] was (sic)
appeared a little subdued or not in the mood to play and later joined
the play”;
34.3.5
M[...] clearly identified that the bathroom where he fell was the one
depicted on the photographs, being
the senior boys’ bathroom.
Ms Faro was uncertain in whether she had inspected the senior
or the junior bathroom and
Ms Van Staden testified that they
inspected the junior bathroom. Ms Faro and Ms Van Staden’s
evidence that the floor
was dry is to my mind doubtful;
34.4
I agree with Mr M van Heerden SC, on behalf of M[...], that it is
highly improbable,
having regard to young children and a urinal in
the boy’s toilet, that there would not be water on the floor at
the time
when the incident happened, based on the following: -
34.4.1
According to the plea and Mr Prins’s evidence the bathrooms are
cleaned after school hours. Therefore,
it is highly improbable
that the bathrooms would have been clean prior to the incident;
34.4.2
The neglect, decay and lack of maintenance to and of the toilets is
evident from the photographs taken
on 14 June 2019. Although
these pictures were taken some 8 years after M[...] had fallen in the
bathroom, the following is
relevant: -
34.4.2.1
Mr Prins stated that when he was at the school (he started work at
the school on 16 July
2012, less than a year after M[...]’s
fall) that the condition of the toilets when he arrived was similar
to that in the
photographs. This is in total contradiction of
the evidence of Mr Van Der Westhuizen, who tried to put across to the
court
that he ran this “model” school with safe and clean
toilets, but he could not explain why the toilets looked like they
did when the photographs were taken;
34.4.2.2
Ms Faro, Ms Van Staden and Mr van der Westhuizen all confirmed the
existence of water stains
on the photographs. This in
indicative of many years of neglect and a lack of maintenance;
34.4.2.3
Mr Prins testified that it was a regular problem that there was water
on the floor of the
bathroom as a result of the urinal becoming
blocked and/or water spilling over from the hand basins; and
34.4.2.4
M[...]’s evidence that, although he could not state that the
photographs 100% reflect
the condition of the toilets on the day of
his fall, they were substantively in the condition as reflected on
the photographs.
Ad
wrongfulness: -
[35]
In its plea, the Department of Education denied that it owed a legal
duty to M[...].
Mr Van der Westhuizen, however, conceded under
cross-examination that the Department had a legal duty to all
learners, including
M[...], to ensure that: -
35.1
The school premises did not constitute a source of danger to
learners;
35.2
All necessary and reasonable precautions are taken to ensure the
safety of the learners;
35.3
Systems were in place to keep the bathroom/change room clean and tidy
and that water would not
remain on the floor of the said area so as
to cause a danger to the learners;
35.4
A minor would not be injured whilst on the school premises;
35.5
Assistance is given to any pupil, in particular M[...], when it was
clear that he was not well
and needed assistance;
35.6
All reasonable steps had to be taken to ascertain why M[...] did not
return to the classroom
after he had gone to the bathroom/changing
room; and
35.7
M[...] was given such reasonable assistance as was required and as
was evident to them whilst
M[...] embarked into and disembarked out
of the school bus.
[36]
In view of the judgment of the Supreme Court of Appeal
in
the matter of
Pro
Tempo Academie CC v Van der Merwe
,
[6]
where
Navsa ADP affirmed with approval the following statement by Desai J
in
Minister
of Education and Another v Wynkwart NO
,
[7]
t
here
is no uncertainty that the Department of Education owed a legal duty
to M[...]: -
“
It
was not in dispute that [the Respondents’ minor son] R was
injured at school while under the control and care of the appearance
employees. And it was fairly and properly conceded that teachers are
young children in their care illegal duty to act positively
to
prevent physical harm from being sustained by them through
misadventure.
”
[37]
The next enquiry is to determine whether there was ‘fault’
on the part
of the Department of Education. In other words,
whether the Department can be said to have been negligent. In
Ngubane
v The South African Transport Services
[8]
,
the Appellate Division was called upon to determine the issue of
negligence where a passenger had fallen from a moving train,
sustaining an injury. Kumleben JA restated the well-known
principles applicable to liability in delict in the following terms:
-
“
Liability in
delict based on negligence is proved 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.”
[38]
It can hardly be contended that: -
38.1
Department of Education could not foresee the reasonable possibility
that the failure to keep
the floor dry could injure a learner, which
could result in injury; and cause patrimonial loss; and
38.2
Department could not take reasonable steps to guard against such an
occurrence; and
38.3
The Department had failed to take such steps.
[39]
To my mind, the evidence amply demonstrates that omission created a
risk of injury
to M[...]; and to prevent its occurrence, by carrying
out reasonable procedures, would have involved no extra cost to the
Department
of Education.
[40]
As can be seen from
the
pleadings, the Department of Education has,
inter
alia
,
placed in issue the question of factual causation. The test to
determine factual causation is the
sine
qua non
test,
sometimes referred to as the ‘…but for test’. As
Jansen J in the matter of
Cilliers
v South African Railways and Harbours
[9]
put it: “Would the collision have occurred but for the
negligence of the defendant?”
[41]
This question has been considered by the then Appellate Division in
the matter of
International
Shipping Co (Pty) Ltd v Bentley
[10]
where the position was summarised as follows: -
“
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first
is a
factual one and relates to the question as to whether the defendant's
wrongful act was a
cause
of the plaintiff's loss. This has been referred to as 'factual
causation'. The enquiry as to factual causation
is generally
conducted by applying the so-called 'but-for' test, which is designed
to determine whether a postulated cause can
be identified as a causa
sine qua non of the loss in question. In order to apply this
test one must make a hypothetical enquiry
as to what probably would
have happened but for the wrongful conduct of the defendant.
This enquiry may involve the mental
elimination of the wrongful
conduct and the substitution of a hypothetical course of lawful
conduct and the posing of the question
as to whether upon such an
hypothesis plaintiff's loss would have ensued or not. If it
would in any event have ensued, then
the wrongful conduct was not a
cause of the plaintiff's loss; aliter, if it would not so have
ensued. If the wrongful act
is shown in this way not to be a
causa sine qua non of the loss suffered, then no legal liability can
arise. On the other
hand, demonstration that the wrongful act
was a causa sine qua non of the loss does not necessarily result in
legal liability.
The second enquiry then arises, viz whether
the wrongful act is linked sufficiently closely or directly to the
loss for legal
liability to ensue or whether, as it is said, the loss
is too remote. This is basically a juridical problem in the
solution
of which considerations of policy may play a part.”
[42]
I can come to no
other conclusion than that the wrongful omission is sufficiently
linked to M[...]’s injury, and his patrimonial
loss; and that
M[...] has proven that the injuries sustained by him were caused when
he slipped on the wet floor and hit his head
in the bathroom at the
school, in view of: -
42.1
Dr Domingo’s uncontested evidence that M[...] did not have a
stroke which resulted in the
fall, but that the fall had caused his
condition, which progressively worsened until he had the stroke that
resulted in M[...]’s
left-sided hemiparesis;
42.2
Dr Domingo’s evidence of M[...]’s progressive worsening
condition which is supported
by the evidence of Ms L[...] and Mr
Jonkers;
42.3
The hospital record which reflects that M[...]'s condition
deteriorated after his fall, and which
is also consistent with the
manner in which the injury was caused as stated by Dr Domingo; and
42.4
Ms Faro and Ms Van Staden’s evidence that M[...] walked to the
tree and waited for the
bus also confirms that M[...] did not have a
stroke that resulted in the fall, but that the fall resulted in the
injury as described
by Dr Domingo.
[43]
On a proper evaluation of the evidence
,
I
accordingly find that: -
43.1
M[...] slipped on the wet concrete floor in the bathroom of the
school and knocked his head on
the edge of the urinal;
43.2
M[...] suffered severe injuries as a result of slipping on the wet
floor and knocking his head
on the edge of the urinal; and
43.3
The injuries suffered by M[...] were caused by the negligence of the
Department.
ORDER:
Wherefore
the following order is made: -
1.
The defendant is liable to pay the plaintiff’s
agreed or proven
damages arising out of the plaintiff’s fall at the Brandboom
Boegoeberg Intermediary School on 02 November
2011; and
2.
The defendant is ordered to pay the
reasonable
qualifying, preparation, reservation and appearance fees of Dr
Domingo;
and
3.
The defendant is ordered to pay the plaintiff’s costs
incidental to the trial in respect of the separated issues, including
the
cost of the plaintiff’s
senior counsel.
STANTON,
A
JUDGE
On
behalf of the plaintiff
:
Adv. M van Heerden SC
(on instruction of
Solomon Attorneys Inc. c/o
Van de Wall Inc)
On
behalf of the defendant
:
Adv. B Babuseng
(on instruction of Lulama
Lobi Inc.)
[1]
1995 (3) SA 344
(ECD) AT 352H-I.
[2]
National
Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437
(E).
[3]
[2008]
4 All SA 72
(SCA) at paragraphs [11], [12] and [14].
[4]
2006
(3) SA 138(SCA)
[also reported at
[2007] 1 All SA 240
(SCA) - Ed]
Brand JA, a
t
144A-C, paragraph 10.
[5]
1966
(2) SA 428
(A) at 430E-F [also reported at [1966] 2 All SA490 (A)].
[6]
2018 (1) SA (SCA) 188 B to C.
[7]
2004(3) SA 577 (C) at 580 A-C.
[8]
1991(1)
SA 756(A)
at
page 776-778.
[9]
1961(2)
SA 131 (T)
[10]
1990
1 SA 680
(A)