A higher degree of care is required when dealing with children. Teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained by them through misadventure.

The appellant Pro Tempo Akademie CC, conducts a school which caters for learners who struggle with learning disabilities and which Jaco, a 13-year-old student, attended.

The school erected steel rods around saplings on its playground, where senior students, including Jaco, played sport. Jaco was injured on a steel rod after leaning or sitting on it and his mother sued the school.

The court in Pro Tempo v van der Merwe found that a prudent and careful person should have foreseen that sharp projections in the ground where children play were a source of danger to young children and sooner or later might result in injury. The duty of teachers arises from the fact that they accept the responsibility to care for the children.

In reaching its judgment, the court referred to the case of Transvaal Provincial Administrator v Coley 1925 AD 24 where a 6 year old girl lost her eye when she fell on a wooden stake that had been erected to protect the trees that had been planted in a portion of the playground.

In that case, the court held that:

“…a duty arose to prevent the stakes being a danger to children playing in the vicinity if such danger ought to have been apprehended. And the question whether danger ought to have been apprehended resolves itself into the inquiry whether a diligent pater-familias, a reasonably prudent person, would have foreseen that they would likely cause harm – in which case he would have been bound either to remove them or to take other steps to obviate the danger”.

The court rejected the submission on behalf of the school that the Coley case is distinguishable on the basis that in that case a child was injured due to the fact that she had run over a mound, whilst in the present case, Jaco had injured himself by sitting or leaning on a dropper which they allegedly could not have foreseen. That was especially so considering the fact that one is dealing with children who struggle with learning disabilities and that Jaco’s hyperactivity was known to the school.

When planting the specific tree that caused the damage and inserting the dropper next to the tree in the general playing field where children were known to play ball games, the school created a hazardous and dangerous situation. The foreseeability of damage was therefore present. Less hazardous or less potentially harmful means could have been used to secure the tree.

This case confirms the principle that higher duties of care are thrown on those who carry on activities or are in control of structures or property where children are known or should be known to be present.