Hawekwa Youth Camp and Another v Byrne

• Jurisdiction: South Africa
• Citation: 2010 (6) SA 83 (SCA)

Hawekwa Youth Camp and Another v Byrne
2010 (6) SA 83 (SCA)

2010 (6) SA p83

Citation	2010 (6) SA 83 (SCA)
Case No	615/2008
Court	Supreme Court of Appeal
Judge	Brand JA, Mlambo JA, Malan JA, Bosielo JA and Griesel AJA
Heard	November 6, 2009
Judgment	November 27, 2009
Counsel	No appearance for the first appellant.; M Donen SC for the second appellant.; A Sholto-Douglas SC for the respondent.

Flynote : Sleutelwoorde

Delict — Liability — Liability of teacher for injuries sustained by pupil — School B excursion — Pupil falling from upper bunk with inadequate protective barrier — Teacher should have foreseen risk of fall and guarded against it — Teacher liable.

Headnote : Kopnota

A teacher will be liable where, during a school excursion, a child falls from an C upper bunk with an inadequate protective barrier. (Paragraphs [1], [15], [30] and [32] at 84D, 88G - H, 93E - F and 94B - C.)

Cases Considered

Annotations

Reported cases

Southern Africa D

Barnard v Santam Bpk1999 (1) SA 202 (SCA): referred to

Broom and Another v The Administrator, Natal1966 (3) SA 505 (D): referred to

Gouda Boerdery Bk v Transnet2005 (5) SA 490 (SCA) ([2004] 4 All SA 500): referred to E

Herschel v Mrupe1954 (3) SA 464 (A): referred to

Joffe & Co Ltd v Hoskins and Another1941 AD 431: referred to

Knop v Johannesburg City Council1995 (2) SA 1 (A): referred to

Kruger v Coetzee1966 (2) SA 428 (A): dictum at 430E - H applied

Local Transitional Council of Delmas and Another v Boshoff2005 (5) SA 514 (SCA) ([2005] 4 All SA 175): referred to F

Minister of Education and Another v Wynkwart NO2004 (3) SA 577 (C): dictum at 580A - C approved

Minister of Safety and Security and Another v Carmichele2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565): referred to

Minister of Safety and Security and Another v Rudman and Another2005 (2) SA 16 (SCA) ([2004] 3 All SA 667): referred to G

Mukheiber v Raath and Another1999 (3) SA 1065 (SCA) ([1999] 3 All SA 490): referred to

Rusere v The Jesuit Fathers 1970 (4) SA 537 (R): referred to

S v Bochris Investments (Pty) Ltd and Another1988 (1) SA 861 (A): referred to

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another H 2000 (1) SA 827 (SCA) ([2000] 1 All SA 128): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): referred to

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): referred to. I

Australia

Council of the Shire of Wyong v Shirt(1980) 146 CLR 40 (HCA): referred to.

England

Bolton v Stone[1951] AC 850 (HL) ([1951] 1 All ER 1078): referred to J

2010 (6) SA p84

Van Oppen v Clerk to the Bedford Charity Trustees[1989] 3 All ER 389 (CA): referred to A

Wright v Cheshire County Council[1952] 2 All ER 789 (CA): referred to.

Case Information

An appeal from the Western Cape High Court, Cape Town B (Le Grange J). The facts appear from the judgment of Brand JA.

No appearance for the first appellant.

M Donen SC for the second appellant.

A Sholto-Douglas SC for the respondent.

Cur adv vult.

Postea (November 27). C

Judgment

Brand JA (Malan JA and Bosielo JA concurring):

[1] The respondent, Mr Gary Byrne, is the father and natural guardian of D Michael Byrne, who was born on 15 June 1995. In March 2004, when Michael was almost 9 years old and a grade 3 learner at the Durbanville Preparatory School, he accompanied a school group under the control of his teachers on a two-day excursion to the Hawekwa Youth Camp site outside Wellington. The group arrived at the camp on 3 March where E they were accommodated in bungalows. During the early hours of the next morning Michael was found on the cement floor of his bungalow. No one saw how he ended up there, but he was unconscious and appeared to be having convulsions. He was taken to hospital where medical examinations revealed that he had suffered a fractured skull with underlying brain injuries which led to some degree of permanent brain F damage.

[2] In the event, the respondent instituted action against the first and second appellants in the Cape High Court for the damages that he and Michael had suffered as a result of these injuries. The nub of his case was that Michael's injuries could have been prevented by the employees of G the two appellants, who had wrongfully and negligently failed to do so. The first appellant (Hawekwa) is a company not for gain incorporated in accordance with s 21 of the Companies Act 61 of 1973. In March 2004 it was the owner of the Hawekwa Youth Camp site where the incident occurred. The second appellant is the Minister of Education in the H Western Cape (the Minister) who was cited in his capacity as employer of teachers at government schools within his area of jurisdiction, including the Durbanville Preparatory School. In his plea the Minister admitted that he would indeed be vicariously liable in delict if Michael's injuries were attributable to the wrongful and culpable acts or omissions I of his teachers.

[3] At the commencement of the trial the parties agreed to and the court a quo (Le Grange J) ordered a separation of issues. In terms of the separation order the issues relating to the liability of the appellants were to be decided first, while those pertaining to the quantum of the damages claimed stood over for later determination. The preliminary issues were J decided in favour of the respondent. Hence the court declared the two

2010 (6) SA p85

Brand JA

appellants liable, jointly and severally, for the loss resulting from A Michael's injuries. Leave to appeal to this court against that judgment was then sought and obtained by both appellants from the court a quo. After the appeal was noted, a settlement was, however, reached between the respondent and Hawekwa, with the result that it played no further part in the appeal. But, proceedings between the Minister and the respondent continued. B

[4] It is not in dispute that during the night of 3 March 2004 Michael slept on the upper portion of a double bunk. Likewise it is common cause that he was not assigned to that bunk but chose to sleep there. From the outset, the respondent's contention as to how Michael ended C up on the floor of the bungalow was that he had rolled from the upper bunk in his sleep because there was no barrier - or, at best for the appellants, a barrier which was ineffective - to prevent him from doing so. The Minister's response in his plea was that he had no knowledge as to how Michael landed on the floor where he was found. But, during the course of the proceedings, various alternative suggestions were made on D his behalf as to how the incident might have occurred. To these suggestions I shall presently return in more detail. Pertinent for present purposes, however, is that they gave rise to the major issue at the trial, that is: how did Michael come to land on the floor where he was found? The other issues at the trial resulted from the denial by the Minister of E the respondent's further contention that Michael's fall could have been prevented if not for the (a) wrongful and (b) negligent omissions on the part of the teachers who accompanied and were thus responsible for the safety of the group. The court a quo decided all these issues against the Minister. Hence they were again presented, albeit in somewhat different form, for determination on appeal. The exact nature of these issues will F best be understood in the light of the background facts that are to follow.

[5] The bungalow where the incident occurred was divided by cupboards and lockers that ran up to the roof beams along the middle of the room. On the right-hand side of the bungalow - as one entered through G the doorway - there were two double bunks, and on the left side there were three. During the night of the incident the five double bunks were occupied by nine boys and one adult, referred to as the volunteer bungalow parent, Mr Moosa Raise. Though it was his daughter who accompanied the group, he had voluntarily undertaken to look after the nine boys in the bungalow during that night. Michael slept on the top H bunk in the far right-hand corner of the bungalow, while Mr Raise occupied one of the bottom bunks on the left. Hence his view to where Michael slept was obstructed by the room divider of cupboards. The three teachers who accompanied the group on their excursion were Ms Solomons, Ms Range and Ms Trollip. They slept in a separate bungalow on their own. I

[6] Mr Raise was called to testify on behalf of the Minister. Two other volunteer parents who were in charge of other bungalows also gave evidence: Mr Roland Oelofse who was called on behalf of the respondent and Mr Kevin Coetzee on behalf of the Minister. It appears to be common cause between the three of them that the boys retired to their J

2010 (6) SA p86

Brand JA

A bungalows between 9 and 10 pm and that by all accounts they were asleep before midnight on 3 March 2004. According to Mr Raise, he was awoken at or shortly after 4 am the next morning by what he described as a 'growling' noise. It was dark in the bungalow and the boys were asleep. He turned on the light to find Michael lying on the floor. Michael B was unconscious and incontinent of urine. Foam was coming from his mouth and it appeared as though he was having an epileptic seizure. Mr Raise called Mr Coetzee and left him with Michael while he went to the bungalow of the teachers to alert them. The time when Michael was discovered is confirmed by Mr Coetzee as well as by Mr Oelofse, who C testified that he had been woken up, in turn, by Mr Coetzee.

[7] Two of the teachers, Ms Trollip and Ms Range, also testified on behalf of the...