Article by Umhlanga Attorney - Fawzia Khan
The shock drowning of a learner whilst on a school outing, early in 2020 as well as the tragedy of the school wall collapsing and causing the death of four learners and severely wounding at least 20 others, has caused much attention on the responsibilities of schools and whether or not the school should be held liable for the death of the learner. What legal weight can be attached to the disclaimer forms which schools require parents to sign before the child is allowed to go on school outings and excursions?
When a learner is at school, or at a school outing or excursion, it becomes the responsibility of the school to ensure that the child is kept safe. The school takes on the role “in loco parentis”, meaning the school stands in for the parent and must make sure that the child’s best interest remains paramount at all times. In order to assess whether a school can be held legally liable for a delictual claim, the court will conduct the “reasonable person’s test”.
Delictual claims is where a person suffers damage as a result of the wrongful act or omission of another. These claims can be based on fault in the form of either intention or negligence and for emotional trauma and shock. If the learner is under 18 years old, the parent would sue on behalf of the child. The claim would be for the actual medical or hospital expenses as well as future medical costs. If a learner’s future earning potential has been diminished as a result of the injuries, this will also be able claimed for.
Often attorneys would utilise the services of an actuary to support the claims for potential future loss of earnings. The claimant would need to show that a reasonable school should have foreseen that certain conduct or failure to take certain actions would likely have the result of a learner suffering harm and that the school failed to take such reasonable steps to avoid the harm.
The burden placed on schools when arranging outdoor activities is understandably great. Schools ought to ensure that its educators and caregivers are fully equipped with the necessary training or skills to deal with any emergency related to a particular activity. Safety equipment to be used by learners should be regularly checked to ensure its functioning optimally. School governing bodies ought to consider taking risk cover policies as part of its risk management.
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