Municipality must pay for child's waterslide injuries

2017-09-28 12:05
Durban beachfront. (Duncan Alfreds, News24)

Durban beachfront. (Duncan Alfreds, News24)

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Durban - The eThekwini Municipality will have to pay out for severe facial injuries suffered by an 8-year-old boy who fell after being bumped by other children on an unsupervised water slide on Durban's beachfront.

This is the effect of a ruling by the Supreme Court of Appeal (SCA) this week which overturned a previous decision by KwaZulu-Natal High Court Judge Esther Steyn that the municipality was not liable.

Steyn said that it was the responsibility of parents to ensure the safety of their children, and that the city could not be expected to employ "playground police" at all of its facilities.

However, the appeal court ruled that the municipality had a legal duty to provide access control or supervision to avoid injury to children using the facility.

The municipality had been negligent in not providing such measures.

"In providing a pool with a slide for use by young children under the age of 12, the municipality created a potential risk of harm," the Judge Mahomed Navsa (with four judges concurring) said.

Supervision

Judge Navsa said in terms of the Constitution, a child's best interests were always paramount.

"It was obvious [from the evidence], that children were using the slide in a chaotic manner... public policy would require a municipality to prevent this kind of chaos which threatens the safety of children."

He said it appeared to be simple "and not financially prohibitive" to provide supervision.

That children could hurt themselves should have been obvious, he said.

The mother of the child sued the city following the accident in May 2011 at the South Beach pool, which resulted in her son's teeth being pushed up into his nose.

She said on that day her son went down the slide twice without incident. On the third occasion, there were about 10 or 15 children on the stairs behind him.

She believed they must have bumped him because he lost control, hitting his face into the side and then bottom of the slide.
He was bleeding profusely and was treated in hospital.

The mom said she went back to the scene the next day and took photographs. She noted there was no supervision.

'Thrilled'

In her evidence before Judge Steyn, she said had she known how dangerous the slides were, she would not have allowed her son to use them.

Theo Gregersen, an expert occupational health and safety officer who inspected the scene of the incident at a later stage, said there was no supervision and he noticed children "running around uncontrolled on wet surfaces, bunching up at the top of the slide and pushing each other forcefully and dangerously down the slide".

He said access to the pool was unrestricted. His opinion was that the absence of supervision was a contravention of safety laws.

Attorney Anthony De Sousa who, with advocate Robbie Pillemer, acted for the mother told News24: "We are thrilled by the decision of the SCA, as we were of the view (as the court found) that the municipality had created a potential risk of harm to children when they provided the pool and had a legal duty to avoid causing harm to children.

"As the court pointed out the means of avoiding the harm were relatively simple and not costly. We hope this decision will ensure the municipality takes the necessary steps to ensure the safety of children using this facility in future."

He said on a technical note, the decision also settled the law with regards to set off against minors.

"This is important. The court confirmed that if you're sued by a parent on behalf of their child, you can't set off a debt owed by the parent to you against the minor."

The issue of what damages the city must now pay still has to be determined, either through a negotiated settlement or a trial.

Read more on:    durban  |  accidents

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