The Supreme Court of Appeal has held that the eThekwini Municipality had a legal duty to supervise and control access to a water slide built for children and situated in a pool on the Durban beachfront Promenade.
A mother had taken her son for a day by the sea. The son joined one of many children in enjoying a pool slide in the area. He successfully descended the slide on two occasions, under the distant watchful eye of his mother. His third attempt proved less successful, as he was pushed from behind by other children while making his descent. The son ended up bumping his face at the bottom of the pool and losing a few teeth in the process. The mother, on seeing this, rushed to a nearby watchtower seeking medical assistance, but none was to be found. She then took him to hospital where he was treated.
The mother sued the municipality for damages on the basis that the municipality was negligent for failing to ensure there was proper control and adult supervision at the pool and slide.
The court identified that the correct issue to be determined was: ‘whether there was a legal duty on the part of the municipality to supervise and control access to the slide’. The court reiterated the position in our law regarding a legal duty which arises where there is prior positive conduct. When someone lawfully creates a potential risk of harm to others, they may have a legal duty to prevent the risk from happening. In providing the pool with the slide, the municipality created a potential risk of harm to others, and there was a duty on the municipality to take reasonable steps to prevent the risk from happening.
The court then turned to the question of negligence and reaffirmed that the classic test for negligence in our law is whether a reasonable person in the position of the defendant would foresee the reasonable possibility of their conduct causing harm to another, and take reasonable steps to guard against such harm. If the defendant fails to do so, they are negligent.
The court found that the municipality was negligent. ‘It would have been obvious to any official operating the facility on behalf of the Municipality’, the court held, ‘that unattended access had the effect of children bunching up and pushing against each other and that the kind of harm which ensued in this case was a reasonable possibility’ which the municipality failed to take steps to guard against. The court held that the municipality was liable to the mother.
Does this mean that parents can abdicate their parental duties in municipal areas, and that municipalities must ensure that there are officials present at the jungle gym at the local park? No.
The court stressed that each case must be decided on its specific facts. In the present case the court took into account the following:
- The only requirement to prevent harm would be the control of access to the slides at the top of the stairhead by an official, at little cost.
- There is supervision at other public pools.
- The applicable by-laws at the time precluded anyone over the age of 12 from entering the slide in question, and therefore parents were prevented from entering or being near the slide to control the action of their children.
The court’s decision will not lead to limitless liability. It merely reinforces the principles of wrongfulness and negligence in our law of delict, although more claimants will be encouraged by the decision.
The case is Van Vuuren v eThekwini Municipality.