When Schools Fail to Keep Children Safe

When Schools Fail to Keep Children Safe – Can They Be Held Legally Liable?

The tragic drowning of a learner during a school outing in early 2020, together with the devastating collapse of a school wall that claimed the lives of four learners and left many others seriously injured, brought into sharp focus an important legal question: When can a school be held liable for injuries or the death of a learner?

These heartbreaking incidents also raise another question frequently asked by concerned parents: Does signing a school indemnity or disclaimer form mean that the school cannot be sued if something goes wrong?

The simple answer is No. A disclaimer is not an absolute shield against legal liability.

Schools Have a Legal Duty to Protect Learners

Whenever a child is at school, participating in a sporting event, educational excursion, camp, or any activity organised by the school, the school assumes a legal duty to safeguard that learner’s wellbeing.

In law, this duty is known as in loco parentis, a Latin phrase meaning “in the place of the parent.” Schools are expected to exercise the same level of care that a reasonable and responsible parent would exercise in protecting a child from foreseeable harm.

This responsibility is reinforced by section 28 of the Constitution, which provides that the best interests of the child are of paramount importance in every matter concerning the child. Educators and school governing bodies therefore carry a significant obligation to ensure that learners are adequately supervised and protected at all times.

Can a School Be Sued?

A school may be held legally liable where a learner suffers injury or death because the school or its employees acted negligently.

These claims are brought under the law of delict, which allows a person who has suffered harm through the wrongful or negligent conduct of another to claim compensation.

To determine whether a school was negligent, our courts apply what is commonly referred to as the reasonable person test. The court asks:

• Was the harm reasonably foreseeable?
• Would a reasonable school or educator have taken steps to prevent the harm?
• Did the school fail to take those reasonable precautions?

If the answer is yes, the school may be held liable for the damages suffered.

Negligence does not require intentional wrongdoing. A failure to properly supervise learners, maintain school facilities, conduct safety inspections, or provide appropriate emergency procedures may be sufficient to establish liability.

What About Disclaimer Forms?

Many schools require parents to sign indemnity or disclaimer forms before learners participate in excursions, sporting events or camps.

Parents often assume that by signing these forms they have waived all legal rights against the school.

This is not entirely correct.

While disclaimer clauses may protect a school against certain ordinary risks associated with an activity, they cannot exempt a school from liability arising from gross negligence, recklessness or conduct that is contrary to public policy.

Courts will carefully examine:

• the wording of the disclaimer;
• the circumstances under which it was signed;
• whether the risks were adequately explained;
• and most importantly, whether the school exercised reasonable care.

Every case is decided on its own facts.

What Can Be Claimed?

Where negligence is established, the injured learner—or, if the learner is a minor, the parent or guardian acting on the child’s behalf—may institute a claim for damages.

Depending on the circumstances, compensation may include:

• Past and future medical expenses;
• Hospital and rehabilitation costs;
• Psychological counselling and therapy;
• Costs of assistive devices or specialised care;
• Pain and suffering;
• Permanent disability;
• Loss of future earning capacity where injuries affect the learner’s ability to work later in life.

Where a learner tragically loses his or her life, qualifying family members may, in appropriate circumstances, have claims arising from the death, depending on the particular facts and applicable law.

Attorneys frequently make use of actuaries, medical specialists, occupational therapists, psychologists and industrial psychologists to quantify future losses, particularly where permanent disability or diminished earning potential is involved.

Prevention Is Better Than Litigation

Schools carry an enormous responsibility, particularly when organising potentially hazardous activities such as swimming excursions, adventure camps, sporting tournaments or educational trips.

To minimise the risk of accidents, schools should:

• conduct comprehensive risk assessments before every activity;
• ensure adequate learner-to-supervisor ratios;
• appoint appropriately trained educators and supervisors;
• ensure that first aid personnel and emergency equipment are readily available;
• regularly inspect school buildings, playgrounds and sporting facilities;
• maintain all safety equipment in good working order;
• implement clear emergency response procedures; and
• obtain appropriate public liability insurance as part of their overall risk management strategy.

School governing bodies should review their safety policies regularly to ensure they comply with current legislation and best practices.

Parents Should Also Ask Questions

Parents should never hesitate to enquire about the safety measures that have been implemented before consenting to their child’s participation in school activities.

Important questions include:

• How many educators will supervise the learners?
• Are staff trained in first aid?
• Is emergency medical assistance readily available?
• Has a proper risk assessment been conducted?
• Is the activity operated by qualified service providers?
• What safety procedures are in place if an emergency occurs?

An informed parent is an important partner in protecting children.

Final Thoughts

Schools play an invaluable role in shaping our children’s future, but with that privilege comes a profound legal and moral responsibility to protect every learner entrusted to their care.

While accidents cannot always be prevented, many tragedies can be avoided through proper planning, adequate supervision, regular maintenance and a genuine commitment to learner safety.

When schools fail to uphold these responsibilities and a learner suffers harm as a result, the law provides families with the right to seek justice and appropriate compensation.

Know your rights.

The Law Desk of Fawzia Khan & Associates
Strategic Solutions. Proven Results.

If you or your child has suffered injury due to negligence at a school or during a school activity, obtain legal advice as soon as possible. Early legal intervention can be crucial in preserving evidence and protecting your rights.

☎ 031 502 5670
✉ info@thelawdesk.co.za