MEC for Social Development not liable for damages caused to child injured on outdoor playground at preschool

​​The Supreme Court of Appeal (SCA) has handed down a judgment confirming that the Member of the Executive Council (MEC) for Social Development is not liable for damages of a child injured by an outdoor play equipment at a preschool.*  Management and employees of places of care are responsible for ensuring the proper design and maintenance of play equipment at "places of care" as defined in the previous Child Care Act.

A five- year-old child suffered serious head and brain injuries when a heavy cross beam from the swing on which she was playing collapsed on top of her, leaving her severely disabled.  There was uncontested evidence that the swing's design was defective and that it was inherently unsafe.  The child's father (the plaintiff) instituted action on her behalf against the MEC for Social Development. Although the High Court found in favour of the plaintiff, the MEC appealed to the SCA.

The preschool in this case was a "place of care" in terms of the previous Child Care Act, and not a "public school" in terms of the Schools Act.  The plaintiff's case was that the MEC was obliged to ensure that the preschool was safe for children, and that the MEC's employees ought to have inspected the premises, and specifically the swing structure, to ensure that it was safe and properly maintained.  Specifically, the plaintiff argued that the MEC was obliged to conduct a quality assurance review of the place of care every two years, which included an assessment of the outside play equipment. The plaintiff argued that the official undertaking the review needed an appropriate level of training to allow them to make an assessment of whether the equipment was safe.  Had such an assessment been performed, the defect in the swing's design would have been detected, and the child's injury would not have occurred. The MEC denied that it had any such legal duty.

The SCA concluded that the role of the Department of Social Development (DSD) was primarily that of a regulator. - it did not operate places of care, such as the preschool in this matter, which were primarily operated by NGOs and similar organisations.  The MEC role was to facilitate the establishment and registration of the facilities, and exercise general oversight over their functions by conducting visits and inspections, which are primarily performed by social workers or healthcare professionals (such as nurses).  The responsibility for the structures in which the facilities operate is a matter over which the local municipality exercises power.  Operational issues such as the proper design and maintenance of play equipment were the responsibility of the place of care and its management and employees.  The SCA in its finding, highlighted the difference between "places of care" and "public schools", in that the Schools Act provides expressly that liability for injuries suffered by learners at public schools' rests with the Department of Education.

The SCA also reviewed the law of delict, and emphasised that the element of wrongfulness depends on a judicial determination of whether it would be reasonable to impose liability on a defendant from the damages flowing from specific conduct, which is informed by public and legal policy in accordance with constitutional norms.

The SCA identified three public policy considerations which pointed away from imposing liability on the MEC.

  • The first was that the MEC's role in terms of the applicable legislation was regulatory and not operational.  All obligations in relation to the day to day operation of places of care rest with the persons registered to operate them. 
  • Second, imposing liability on the MEC for harm in circumstances such as this would hamper it in undertaking its central functions and have a chilling effect on the DSD's officials in the performance of their statutory and administrative duties. 
  • Third, the legislation applied nationally, and if the duty to inspect playground equipment were to be imposed on the MEC, this would affect thousands of places of care, children’s homes, places of safety and shelters.  To uphold the claim would make provincial governments throughout the country "insurers" against the negligence on the part of operators and employees of every place of care in the country.

The SCA concluded that although cases such as this one elicits sympathy from everyone, including judges, sympathy cannot be a basis for imposing legal liability.

* MEC: Western Cape Department of Social Development v Esau and Another (Case no 379/2019) [2020] ZASCA 103 (16 September 2020).


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