It is common cause that the Municipality did not employ or have in attendance any persons to supervise the children using the pool or to control the use of the slides. More importantly, the Municipality did not employ anyone to ensure that the child at the top of the slide would be safe from being pushed or from colliding with another child while using the slide.
In 2012, the appellant instituted action in her personal and representative capacity in the KwaZulu-Natal Division of the High Court for damages arising as a result of the injuries suffered by her son, Jacques. Jacques suffered a fractured jaw and loss of teeth which required surgical treatment and future medical operations. The appellant alleged that the Municipality, alternatively their employees or agents were negligent in failing:
- to ensure that the slide was properly constructed;
- to ensure proper supervision and control at the pool and slide facilities;
- to control or limit the number of children using the facilities; and
- to ensure that the slide was controlled in such a way that it remained safe for children to utilise.
In response, the Municipality denied that it was negligent in any way and raised the defence of voluntary assumption of risk and in the alternative sought a reduction in terms of s1 of the Apportionment of Damages Act, No 34 of 1956 for any damages which may be awarded to the appellant.
The court a quo found that it was unreasonable to place a burden on the Municipality which was greater than the duty of care which is imposed on parents. The court a quo subsequently dismissed the appellant’s action with costs.
On appeal, the SCA found that the court a quo had misidentified the issue to be adjudicated and the question on appeal was whether there was a legal duty on the Municipality to supervise and control access to the slide.
The SCA stated that based on the evidence before them it was clear that the slide facility posed a potential risk of harm to others and that this risk was created by the Municipality. The SCA considered the fact that the facility was for children under 12 and this therefore suggested a degree of immaturity and indiscipline. Further, s28(2) of the Constitution dictates that a child’s best interest is paramount in every matter concerning the child and public policy requires a municipality to prevent any chaos which would undermine the safety of children using the facility.
The SCA concluded that by gearing the facility for young children the Municipality created the potential risk of harm and in the circumstances the Municipality owed a legal duty to avoid negligently causing harm to persons in Jacques’ position. The SCA also stated that access and control are simple to impose and would not inflict an intolerable financial burden on the Municipality.
As to negligence, the SCA stated that objectively a sensible person in the position of the Municipality would have foreseen the reasonable possibility of harm being caused to children in Jacques’ position. The SCA held that by failing to provide supervision or access control at the slide facility the Municipality was indeed negligent.
The SCA concluded that the court a quo erred in not holding the Municipality liable for damages and the appeal was subsequently upheld with costs.
This case poses as a warning to municipalities and other entities where their child entertainment facilities create potential risks. In these circumstances they need to put in place adequate measures to negate the risk, ensuring the safety of the public, especially where minors are concerned.