Over the past few weeks media headlines have been filled with harrowing stories of tragedies across the country affecting learners at schools.
The senseless death of Enoch Mpianzi, 13, from Parktown Boys' High School who drowned at a school orientation camp the most prominent case in point.
If anything, tragedies bring into the spotlight the duty of those responsible for children and the standard of care required when dealing with children, fostering important discussion regarding the role of schools in loco parentis.
This legal term means ‘in the place of a parent’.
The doctrine holds that educators assume custody of learners at school while they do not have the protection of a parent/guardian.
This also means teachers must constantly look out for their learners’ best interests and welfare.
In other words, school officials have the responsibility to prevent foreseeable dangers from harming learners.
Over the years, the courts have stood by the principle that heightened preventative measures should be taken by persons who have learners in their custody.
This extends to persons who control any areas where children are present or could possibly be present.
Children do not necessarily have the same comprehension of danger or potential danger as adults have.
Therefore, it is the duty of persons responsible for the children to ensure that no danger exists in these areas.
The school, as a custodian of areas where children could be present like the sports field, play areas, classrooms, has the same duty of care (even if the children are not in their custody), to make sure that their premises do not present a risk of harm.
Parents delegate certain responsibilities for their children to the school.
Teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained by them through misadventure.
The reasonable person test
When it comes to children a high degree of care is required. What exactly does this responsibility entail though?
To answer whether a danger exists, courts ask if a reasonable person responsible for a child would have removed the danger or kept the child away from it.
This ‘reasonable person’ is a fictional average man or woman, who is not reckless or overcautious.
They are aware of their surroundings, and the dangers inherent in various activities.
Should the person concerned also have a particular expertise, then their conduct is measured against that of the reasonably skilled, competent and experienced person of such a group.
Questions the court may ask include:
• Should the educator/school have foreseen that their actions (or failure to act) could cause damage or injury to the learners?
• Should the educator/school have had the knowledge and skill, which would have enabled them to foresee the damage or injury?
• Should the educator/school have taken reasonable steps to guard against or prevent such an eventuality?
• Should the educator/school have arranged to make sure the steps envisaged were carried out?
• Did the educator/school neglect to do so?
Understanding delictual liability losses:
Schools acting in loco parentis may be exposed to delictual liability losses.
These are losses concerned with damages suffered by a person resulting from a wrongful act or the omission of another, for which that person is entitled to compensation in terms of our common law.
Delictual liabilities include cases where a third party holds a school liable for damages or injury they sustained.
The five requirements for delictual liability are; conduct; wrongfulness; fault (intention or negligence); causation; harm.
Each of these must be proved for a person to have committed a delict (violation of the law), and thus to be delictually liable.
How do schools mitigate the risks associated with in loco parentis?
Many schools transfer the risks to an insurer relying on their expertise for proactive risk management.
For example, the insurer can advise on how to mitigate risks involved in external activities that could put learners at risk, through measures like these:
1. Prominent signs must be displayed stating that participation in this activity is at the participant’s own risk. Any participant in this activity must sign a document drawn up by a qualified attorney disclaiming the liability of the insured or any partner or director or employee of the insured prior to taking part in the activity.
2. Supplying of suitable safety equipment and clothing to all participants for the activity concerned.
3. All equipment provided or to be used must undergo safety checks before use to ensure it is fit for purpose.
4. All safety equipment and braking systems must undergo daily safety checks before use to ensure they are fit for use.
5. Ensure that equipment provided is not overloaded beyond its designed carrying capacity and is used according to the manufacturer’s guidelines.
6. An adequate number of suitably qualified and experienced employees must be present to supervise all events and ensure that the equipment is being used within its design tolerances (reduced further if more hazardous conditions exist).The employees must also ensure the equipment and safety equipment are correctly used.
7. If the activity takes place in or on water or involves the riding of an animal, then persons under the age of 14 are not allowed to participate in this activity unless accompanied by an adult.
8. All participants shall wear a life jacket if the activity involves water.
9. All participants shall wear a helmet when there is any possible risk of head injury. This includes activities with water and rivers, animals or that take place at height.
A school’s responsibility is extremely serious, and it’s pivotal all parents and school-linked parties are familiar with the legalities involved.
Compiled for Parent24 by Anneline Hlangani.
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