THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 615/2008

In the matter between:

HAWEKWA YOUTH CAMP

FIRST APPELLANT

THE MINISTER OF EDUCATION FOR THE
WESTERN CAPE

SECOND APPELLANT

and

GARY MICHAEL BYRNE

RESPONDENT

Neutral citation:
Hawekwa Youth Camp v Byrne (615/2008) [2009] ZASCA
156 (27 November 2009)

CORAM:

Brand, Mlambo, Malan, Bosielo JJA et Griesel AJA

HEARD:

6 November 2009

DELIVERED:
27 November 2009

SUMMARY:
Claim in delict against Minister of Education – loss
resulting from injuries sustained by child during school
excursion under control of his teachers – held that injuries
caused when child fell from top part of double bunk bed
because of insufficient barrier on bunk – further held that
resulting loss caused by wrongful and negligent
omissions on the part of teachers – Minister vicariously
liable.

ORDER

On appeal from:
High Court, Cape Town (Le Grange J sitting as
court of first instance).
The appeal is dismissed with costs.

JUDGMENT

BRAND JA (Malan et Bosielo JJA concurring):

[1] The respondent, Mr Gary Byrne, is the father and natural guardian of
Michael Byrne, who was born on 15 June 1995. In March 2004, when Michael
was almost nine 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 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 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 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 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 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 decided in favour of the
respondent. Hence the court declared the two appellants liable, jointly and
severally, for the loss resulting from 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.

[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 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 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 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 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 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 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.

[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 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 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
testified that he had been woken up, in turn, by Mr Coetzee.

[7] Two of the teachers, Ms Trollip and Ms Ranger, also testified on behalf
of the Minister. The third one, Ms Solomons, had apparently emigrated in the
interim and was not available to give evidence. Ms Trollip testified that she
was summoned to the bungalow by Mr Raise where she also saw Michael
lying on the floor. Ms Range accompanied Mr Raise and Mr Coetzee when
they took Michael to the hospital. Between these witnesses who saw Michael
in his injured state, there was no significant difference as to the condition he
was in. Moreover, not one of them drew any conclusion other than that
Michael had rolled off the upper bunk in his sleep.

[8] The plea advanced on behalf of the Minister was that he had no
knowledge of the plaintiff's allegation that Michael fell from the upper bunk
while sleeping. Shortly before the trial, however, the Minister delivered an
expert notice to which was annexed a report prepared by a neurologist, Dr
Johan Reid, who assessed Michael for purposes of the litigation nearly four
years after the event. The contents of the report – and particularly the thesis
advanced therein – came to serve as the basis for a positive proposition
advanced on behalf of the Minister during the trial, namely that Michael had
not fallen as a result of rolling out of the bunk bed during his sleep, but
because he had suffered an epileptic seizure.

[9] The conclusion reached by Dr Reid and his recommendation that
Michael be placed on anti-convulsive medication caused the respondent and
his wife to seek a second opinion from another neurologist, Dr James Butler,
whose main interest is in epilepsy. Dr Butler examined Michael and subjected
him to 48 hours of continuous EEG recordings in order to ascertain the
presence or absence of interictal (between convulsions) epileptiform

discharges. His evidence was that in a population of people who have
epilepsy, 90 per cent or more of such people will demonstrate interictal
epileptiform discharges on such EEG recordings. Since Michael showed none
of these symptoms, Dr Butler concluded that Michael did not suffer from
epilepsy – either before or after the event. He also pointed out that Michael
had no history of clinical seizures in his entire life. These considerations and
others led Dr Butler to decide that there was no evidence to support the
conclusions arrived at by Dr Reid and accordingly he expressed the view that
it was more likely that the convulsions observed by Ms Raise and others when
they found Michael on the floor were caused by his brain injury, rather than
the cause of it.

[10] There is, however, no need to analyse the difference between Dr Reid
and Dr Butler any further. The court a quo subjected the testimony of both
doctors to close scrutiny. It then accepted the evidence of Dr Butler and
rejected the thesis advanced by Dr Reid as unimpressive and implausible.
There is no attack on these findings. On the contrary, at this stage the Minister
had distanced himself from the conclusions of Dr Reid. Another thesis as to
how it happened that Michael ended up on the floor, which the Minister did
persist in on appeal, also emanated from the testimony of Dr Reid. According
to this part of Dr Reid's evidence he asked Michael, when he assessed him in
February 2008, how the incident happened. Michael then told him, so Dr Reid
said, that he and the other boys in the bungalow were up until about 3 o'clock
in the morning; that they were boisterously swinging from the open rafters in
the bungalow; that there was no adult present at the time; and that in fact, the
adult person assigned to their room slept elsewhere.

[11] Counsel for the Minister sought to find support for Michael’s account in
the fact that the roof beams of the bungalow were not covered by the ceiling
and that they passed between the left and right walls above the bunk where
Michael slept at about the height of the cupboard divider in the room. In
addition counsel sought to rely on the evidence of Dr Butler that, though
Michael's memory 'going forward' from the time of the incident could be
expected to be poor, the presence of retrograde amnesia was unlikely. Finally,

counsel found support for his argument in the evidence by Mr Coetzee that
immediately after the incident, a mattress was found lying on the floor next to
Michael. To my way of thinking, however, these are no more than indications
that, when considered in isolation, Michael's version, that he was swinging from
the roof beams when he fell to the floor, could theoretically be true.

[12] But as I see it, sight should not be lost of the fact that Michael told this
story four years after an event which occurred when he was eight years old.
Moreover, according to Dr Reid’s own evidence, individuals who suffered the
same type of brain injury as Michael, are known to be manipulative and, in Dr
Reid’s words, ‘to have us on’. What the court a quo found decisive, however,
and, to my mind, rightly so, is that the theory based on Michael's report to Dr
Reid is simply not to be reconciled with the evidence of the Minister’s own
witness, Mr Raise. It will be remembered that according to Mr Raise he was
fast asleep in a dark bungalow when he was woken up by a growling noise at
about four o’clock in the morning. When he switched on the light all the other
boys were asleep. The proposition that he slept elsewhere or even that he
was out of the bungalow when the incident occurred, was never put to Mr
Raise. Nor was it suggested to him that he might not have woken up when the
boys in his bungalow were boisterously swinging from the open rafters above
him. To me it seems that the last mentioned suggestion would, in any event,
border on the ludicrous.

[13] Another scenario proposed on behalf of the Minister for the first time on
appeal was that Michael fell to the floor while he was voluntarily alighting from
the upper bunk in order to visit the bathroom. In support of this theory counsel
sought to rely on the evidence of some of the witnesses who found Michael on
the floor, that he was without his sleeping-bag and that there was urine
around him, coupled with the evidence of his mother that when his sleeping-
bag was returned to her it was wet and smelled of urine. One of the
conclusions to be drawn from this, so the Minister’s counsel contended, was
that Michael had wet himself during the night before alighting from the upper
bunk in order to visit the bathroom. The first problem I have with this scenario
proposed by counsel is that other explanations present themselves for the

facts on which it relies. So for example, it is equally possible that Michael had
wet himself after he sustained his head injury. His sleeping-bag could then
have been dropped in the urine at any time before or after he had been taken
to the hospital and so on and so forth.

[14] My further problem with the proposed scenario is that it was never
raised and hence not properly explored at the trial. Even so, I believe there is
sufficient evidence to remove this thesis from the realm of probabilities. First,
there is the uncontested evidence of Michael’s mother that he had been
sleeping on the top part of a double bunk from the age of two until the
accident occurred and that he had never fallen off the bunk before. Her
explanation for this was, of course, that his bunk at home had a proper railing
which prevented him from rolling off. But the railing would obviously not
protect him from a fall while he was voluntarily alighting. This means that
Michael must have fallen off for the first time while alighting from his bunk
when he was nearly nine. In short, I find it inherently unlikely that a nine year
old boy who regularly slept on a top bunk would fall on his head while trying to
alight from his bunk. As I see it, the proposed scenario should also be
considered in the light of the evidence to which I shall presently return, that
the barrier on the bunk used by Michael would as a fact not be able to prevent
him from rolling off in his sleep, which lends support to the inference that this
is exactly what happened.

[15] I therefore agree with the conclusion arrived at by the court a quo, that
the most likely conclusion to be drawn from the available evidence is the one
which occurred to all those present at the time, namely that Michael landed on
the floor because he rolled out of the top part of the double bunk in his sleep.
This leads me to consider the next step in the progression of the respondent’s
case, namely, his allegation that the direct cause of Michael’s fall was the
absence of an effective railing or barrier on the upper bunk which he occupied
to prevent him from rolling off in his sleep.

[16] According to the respondent’s particulars of claim his main contention
in this regard was that the bunk used by Michael had no railing or barrier at

all. This contention was supported by the evidence of Mr Oelofse who saw
nothing of this kind. It was, however, in direct conflict with the evidence of Mr
and Mrs Enslin, who both at various times held the position of manager of the
first appellant's Hawekwa Camp. Their version, which must, in my view, be
accepted, was that there was some kind of barrier on the bunk that Michael
occupied. The reason for the barrier, so the Enslins explained, was that they
actually foresaw the possibility of children rolling from unguarded upper bunk
beds and injuring themselves. In an attempt to prevent such an occurrence,
they had affixed planks of wood to these bunks. Photographs depicting such
planks were handed in at the trial as Exhibit A. Mrs Enslin testified, however,
that the planks depicted in Exhibit A were those present in the girls’
bungalows at the time of Michael’s injuries. The planks affixed to the bunks in
the boys’ bungalows, she said, were smaller. Indeed, Mrs Enslin sought to
explain the fact that some witnesses were unsure as to whether or not there
were any planks on the boys’ bunks at all on the basis that they might have
failed to observe these planks because they were so small.

[17] Mr Enslin’s version was somewhat different from that of his wife.
According to his evidence, all the planks were of the same size. However, so
he testified, the planks on some of the bunks in the boys’ bungalows had
been fixed in such a manner that the portion extending above the mattress,
which actually afforded the protection, was lower than their counterparts in the
girls’ bungalows that are depicted in Exhibit A. However, be that as it may,
whatever the exact position might have been, I find the bottom line to all this in
the concession by Mr Enslin that even the planks depicted in Exhibit A were
insufficient as safety railings or barriers to prevent a child from rolling off.
Hardly surprising, in the circumstances, was the evidence that after Michael’s
injury, new, substantially larger planks were installed on the upper bunks in
the boys’ rooms. What is more, it appears that when the camp site came
under new management, the barriers on the top bunks were once again
upgraded.

[18] The fact that the planks depicted in Exhibit A were ineffective as a
barrier to prevent someone from rolling off the upper bunk was confirmed by

the respondent’s expert witness, Ms Du Toit. She is a medical social worker
employed by the Child Accident Prevention Foundation at the Red Cross
Hospital. She concluded from a study that she did between 1989 and 1993
that bunk bed injuries are sufficiently common to merit preventative strategies
in the form of protective railings that complied with safety specifications. Apart
from the fact that the planks depicted in Exhibit A did not comply with these
specifications, so she testified, they were obviously not suitable to serve the
purpose for which they were intended, ie to prevent someone from rolling off
the bunk. In the light of all this I agree with the finding by the court a quo that,
on the probabilities Michael rolled off the top bunk in his sleep because there
was no effective barrier to prevent him from doing so.

[19] It was not disputed by counsel for the Minister, as I understood him,
that, with the benefit of hindsight, the teachers in charge of Michael's group
could and should have prevented the injuries that he suffered by not allowing
him to sleep on a top bunk which had no effective barrier to prevent him from
rolling off in his sleep. But, as we all know, hindsight does not establish
negligence. The question remains – can the teachers' omission be
characterised as negligent? And, if so, can their negligent omission be
characterised as wrongful? In this court there was some debate as to whether
the teachers in charge of Michael's group assumed the role in loco parentis
and what that would entail. I do not believe, however, that it takes the matter
any further. In my view the issues of wrongfulness and negligence can be
approached from a position which is not in dispute, namely, that these
teachers took responsibility for the safety of the group that included Michael.

[20] A substantial portion of the written heads of argument on behalf of the
Minister had been devoted to the element of wrongfulness. Contentions in
support of the proposition that omissions on the part of Michael's teachers to
prevent his injuries would not be wrongful, included the following:
'[The Minister] does not dispute that [the teachers] owed Michael a duty of care, viz,
to take reasonable measures to ensure that the environment in which he was to be
accommodated as a learner participating in a school excursion would be free from

risks and dangers such as could reasonably be expected to lead to him suffering
harm or injury. . . .'
And:
'The duty of care upon [the teachers] arose from the school's assumption of a role in
loco parentis. The school was bound to exercise the same foresight and care as a
reasonably careful parent in relation to her own children. To that end, it is submitted,
the school took every step that a reasonable parent would take to assess the risk to
Michael while he was at the camp; and furthermore, the school's staff acted
reasonably to prevent any harm to Michael.'
Further arguments were thereupon advanced to support the submission in the
last sentence of the quotation.

[21] As I see it, the quoted contentions are indicative of a confusion
between the delictual elements of wrongfulness and negligence. This
confusion in turn, so it seems, originated from a further confusion between the
concept of 'a legal duty', which is associated in our law with the element of
wrongfulness, and the concept of 'a duty of care' in English law, which is
usually associated in that legal system with the element of negligence (see eg
Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27B-G; Local
Transitional Council of Delmas v Boshoff 2005 (5) SA 514 (SCA) para 20).
Warnings against this confusion and the fact that it may lead the unwary
astray had been sounded by this court on more than one occasion (see eg
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA 2006 (1) SA 461 (SCA) para 14; Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para
11). Nonetheless, it again occurred in this case.

[22] The principles regarding wrongful omissions have been formulated by
this court on a number of occasions in the recent past. These principles
proceed from the premise that negligent conduct which manifests itself in the
form of a positive act causing physical harm to the property or person of
another is prima facie wrongful. By contrast, negligent conduct in the form of
an omission is not regarded as prima facie wrongful. Its wrongfulness
depends on the existence of a legal duty. The imposition of this legal duty is a

matter for judicial determination involving criteria of public and legal policy
consistent with constitutional norms. In the result, a negligent omission
causing loss will only be regarded as wrongful and therefore actionable if
public or legal policy considerations require that such omission, if negligent,
should attract legal liability for the resulting damages (see eg Telematrix (Pty)
Ltd supra para 14; Local Transitional Council of Delmas supra paras 19-20;
Gouda Boerdery Bk v Transnet 2005 (5) SA 490 (SCA) para 12).

[23] The separate test for the determination of negligence is the one
formulated by Holmes JA in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G.
According to this test, negligence will be established if:
'(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.'
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii)
is sometimes overlooked. Whether a diligens paterfamilias in the position of the
person concerned would take any guarding steps at all, and, if so, what steps would
be reasonable, must always depend upon the particular circumstances of each case.'

[24] Depending on the circumstances, it may be appropriate to enquire first
into the question of wrongfulness in which event it may be convenient to
assume negligence for the purpose of the inquiry. On the other hand, it may
be convenient to assume wrongfulness and then consider the question of
negligence first (see eg Gouda Boerdery Bpk para 12; Local Transitional
Council of Delmas para 20).

[25] In this case I find it convenient to deal with the question of
wrongfulness first, primarily because I believe the answer to be self-evident.
Properly formulated the enquiry under this rubric is this: on the assumption
that the teachers in charge of the group could have prevented the harm that
Michael suffered and that they had negligently failed to do so, should they –
and by vicarious extension, the Minister – as a matter of public and legal

policy, be held liable for the loss resulting from such harm? But for the
confusion between wrongfulness and negligence which transpires from the
Minister's heads of argument, it appears to me that wrongfulness had in fact
been conceded. What is in effect disputed is negligence. However, be that as
it may, I am satisfied that wrongfulness had been established. In this regard I
am in full agreement with the following statement by Desai J in Minister of
Education v Wynkwart NO 2004 (3) SA 577 (C) at 580A-C:
'It was not in dispute that [the respondent's minor son] R was injured at school while
under the control and care of the appellants' employees and it was fairly and properly
conceded that teachers owe young children in their care a legal duty to act positively
to prevent physical harm being sustained by them through misadventure. It was
submitted that in this instance, as in many other delict cases, the real issue is
"negligence and causation and not wrongfulness".'

[26] Reverting to the issue of negligence, the first question – in accordance
with Kruger v Coetzee – is one of foreseeability. Was it reasonably
foreseeable by Michael’s teachers who were in charge of the group that the
upper bunk which he was supposed to occupy, posed the danger that he may
roll off in his sleep and injure himself? In support of the proposition that it was,
the respondents adduced the expert evidence of Ms Nelmarie du Toit.
According to her testimony, studies at the Red Cross Hospital and elsewhere
had shown that the use of upper bunks as beds for children without the
provision of adequate railings is notoriously dangerous in that children
frequently roll off these bunks in their sleep in which event they often suffer
serious injuries which may even be fatal. She also testified that a considerable
amount of publicity had been given to these studies in various media. Though
the danger related predominantly to children under the age of five, a good
proportion of occurrences involved children of about ten.

[27] The Minister’s answer to Ms Du Toit’s testimony was essentially that
she was an expert whose knowledge and experience could not be attributed
to teachers in general. This response is, of course, not without validity. Yet, I
do not see it as a complete answer. What Ms Du Toit’s evidence shows is that
as an objective fact unprotected bunk beds posed the risk of serious and even

fatal injuries to children. The only question is whether her knowledge can be
limited to those who share her expertise. I think not. Both Mr and Mrs Enslin,
for example, testified that they actually foresaw the possibility of children
falling from unguarded bunk beds and injuring themselves. The very purpose
of affixing the (inefficient) barriers to the bunks at the camp site was to guard
against such an occurrence. That raises the question why a reasonable
teacher would not foresee the danger actually foreseen by the Enslins. To this
question no answer was put forward on behalf of the Minister and I can think
of none. It strikes me as a matter of general knowledge that children
frequently roll off their beds in their sleep. In this light common sense dictates,
in my view, if one should put your mind to it, that if the fall occurs from the top
part of a double bunk, as opposed to a normal bed, the risk of serious injury is
exponentially increased simply because of the significant additional height
involved.

[28] What is more, both Ms Trollip and Ms Range testified that to their
knowledge some parents of children attending these camps refused to allow
their children to sleep on the upper bunks. As to the reason for this, Ms Range
was unfortunately somewhat evasive. To the reasonable teacher, the answer
would be obvious: these parents did not wish their children to sleep on upper
bunk beds because they thought it to be dangerous. As I see it, that would
cause reasonable teachers to apply their minds as to why these parents
regarded upper bunks as dangerous. Once they did so, even those
reasonable teachers who had failed to realise the inherent danger before,
would then appreciate the risk of a child rolling off an unprotected top bunk. In
this regard, counsel for the Minister sought to rely on concessions by
individuals such as the respondent’s expert, Dr Butler, and Ms Range herself,
that they had in the past allowed their own children to sleep on upper bunks
without safety rails. To my way of thinking, this attitude is probably attributable
to a failure on the part of these individuals to apply their minds. The same can,
in my view, be said of parents who attended the camp and did not object to
the bunks as being unsafe. As I have said, I believe that once a person of
average intelligence applies his or her mind to the situation, the danger posed
by an unprotected bunk becomes quite plain. Particularly when that

reasonable observer is alerted by the concern of parents who refuse to allow
their children to sleep on upper bunks because they regard them as
dangerous.

[29] Another argument raised on behalf of the Minister was that the
Durbanville Preparatory School had previously used the same campsite for
ten years; that the teachers involved had not been informed of any reported
incident where a child had fallen off an upper bunk; and that they therefore
had no reason to think that it would happen on this occasion. Though this
argument might be superficially attractive, I believe it is flawed. Firstly, the
reasonable teacher would appreciate that incidents might have gone
unreported. Secondly, logic dictates that once a risk has been recognised as
inherently foreseeable, such as, for example, the one created by an unfenced
swimming-pool, the reasonable person will not disregard that risk simply
because it had never materialised before.

[30] In sum, I therefore find that Michael's teachers should reasonably have
foreseen that in the absence of an adequate barrier affixed to the upper bunk
which Michael occupied, there was the real risk that he may roll off in his
sleep and injure himself. In this light, the next question, according to the
Kruger v Coetzee approach, is what steps, if any, the reasonable teacher
would have taken to guard against this foreseeable danger? As I see it, the
answer is that the reasonable teacher would examine the beds and consider
whether it afforded effective protection to prevent children from rolling off in
their sleep. I say that because the obligation imposed on the teacher would
require very little effort which should be weighed up against the seriousness of
the foreseeable harm that could result from a failure to do so.

[31] Ms Trollip and Ms Range could not give any clear evidence as to the
nature of the planks on the beds. The inference is inescapable that they
simply did not look. If these two teachers had looked, like the reasonable
teacher would, they would have realised that the planks on the beds did not
offer sufficient protection to prevent a child from rolling off. That much appears
to be virtually common cause. Apart from Ms Du Toit's evidence and the

concession by Mr Enslin to that effect, Ms Trollip accepted, albeit with the
benefit of hindsight, that the protection offered by the planks was 'ten to one'
not enough.

[32] The final enquiry is what the reasonable teacher would have done once
he or she realised that the upper bunk offered no sufficient protection. The
answer is, I think, that there were many possible solutions, but, failing all of
these, he or she would have instructed the children destined to sleep on the
upper bunks to put their mattresses on the floor. That, incidentally, is exactly
what Ms Range did at the excursions she arranged at the same venue after
the incident where Michael was injured. I do not propose to introduce this
evidence as the wisdom of hindsight, but to illustrate that the suggested
solution would be adopted by the reasonable teacher, because it could be
implemented without any difficulty. In the event, I agree with the court a quo's
finding that the harm suffered by Michael could have been prevented by the
teachers in charge of his group, who had wrongfully and negligently failed to
do so. This inevitably leads me to the order that follows.

[33] The appeal is dismissed with costs.

………..……………..
F D J BRAND
JUDGE OF APPEAL

GRIESEL AJA (Mlambo JA concurring):

[34] The evidence has been fully summarised in the judgment of my
colleague Brand JA. I agree with his conclusion that, on the circumstantial
evidence, the most probable inference is that Michael rolled off the top bunk in
his sleep and fell because there was no effective barrier to prevent him from

falling.1 However, I respectfully disagree that, on those facts, the Minister
should be held liable to the respondent.
[35] In my view, the present appeal affords a classic example of wisdom
after the event. The proper approach to questions of reasonable foresight has
been formulated by Nicholas AJA in S v Bochris Investments (Pty) Ltd &
another2 and followed by this court on many subsequent occasions.3 He put it
as follows:
‘In considering this question, one must guard against what Williamson JA
called “the insidious subconscious influence of ex post facto knowledge” (in S
v Mini 1963 (3) SA 188 (A) at 196E–F). Negligence is not established by
showing merely that the occurrence happened (unless the case is one where
res ipsa loquitur), or by showing after it happened how it could have been
prevented. The diligens paterfamilias does not have “prophetic foresight”. (S v
Burger (supra at 879D).) In Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd (The Wagon Mound) 1961 AC 388 (PC) ([1961] 1 All ER
404) Viscount Simonds said at 424 (AC) and at 414G–H (in All ER):
“After the event, even a fool is wise. But it is not the hindsight of a fool; it is the
foresight of the reasonable man which alone can determine responsibility.”’

[36] A number of the appellant’s witnesses fairly and candidly conceded
that, with hindsight, it was perhaps unsafe to allow children of Michael’s age to
sleep on upper bunks without adequate safety railings. Faced with the stark
reality of what had happened to Michael, it would have been surprising had
their attitude been any different. However, the fact that none of those
witnesses thought, before the event, that it was necessary to take any
precautions is significant.

1 Paras 15 and 18 above.
2 1988 (1) SA 861 (A) at 866J–867B.
3 See eg Sea Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold Storage (Pty) Ltd &
another 2000 (1) SA 827 (SCA) para 27; Minister of Safety and Security and another v Carmichele
2004 (3) SA 305 (SCA) para 45; Minister of Safety and Security & another v Rudman & Another 2005
(2) SA 16 (SCA) para 67.

[37] The plaintiff relied heavily on the evidence of Mrs Du Toit, as does
my colleague.4 Her opinion was based largely on the results gathered at the
Child Accident Prevention Foundation at the Red Cross Children’s Hospital in
Cape Town over a five-year-period, from January 1989 to December 1993.
The statistics show that a total of approximately 58 000 children were seen at
the trauma unit of Red Cross Children’s Hospital during the relevant period. Of
these, falls accounted for 24 980, of which falls from beds were 3 160 and
falls from bunk beds only 400. She was unable to state how many of those
400 falls occurred while the child was asleep; nor did she know in how many
cases the falls occurred despite a safety railing, eg because the child was
playing. We do know, however, that one of the falls was fatal. In my view, Mrs
Du Toit’s evidence falls short of establishing that the use of upper bunk beds
without safety railings is ‘notoriously dangerous’, nor does it establish that
children ‘often suffer serious injuries’ as a result of falls from bunk beds. As I
read the results of the survey, almost 80% of the injuries resulting from falls
from bunk beds were ‘minor in nature, ie lacerations, contusions and
abrasions’. In short, her evidence does not assist the respondent in proving
that the risk of harm to Michael should have been reasonably foreseeable to
the Minister’s employees before the occurrence.
[38] Be that as it may, even if it were to be accepted that the possibility
of harm to the children due to the absence of a proper safety railing was
reasonably foreseeable, this is not sufficient to saddle the Minister with
liability. What is required, is the reasonable foreseeability of ‘a possibility of
harm to another against the happening of which a reasonable man would take
precautions’.5 This was echoed 25 years later in the second requirement laid
down by Holmes JA in Kruger v Coetzee, which has been followed ever
since.6

4 Paras 18 and 26 above.
5 Joffe & Co Ltd v Hoskins & another 1941 AD 431 at 451.
6 Quoted in para 23 above. See also Boberg The Law of Delict vol I at p 275; Bolton v Stone [1951] 1
All ER 1078 (HL) at 1080 and 1084; The Council of the Shire of Wyong v Shirt & others 146 CLR 40
(HC of A) at 47; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 213H–J; Mukheiber v Raath &
another 1999 (3) SA 1065 (SCA) para 31.

[39] In considering whether any steps ought to have been taken by the
appellant’s employees, the standard of care required of them and other
persons in loco parentis is that of ‘a reasonably careful parent in relation to his
own children’.7 Although it has been suggested during argument before us
(albeit somewhat tentatively) that the standard of care required of a teacher or
someone else in loco parentis should actually be higher than the standard
required of a reasonably careful parent in respect of his or her own child, we
have not been referred to any authority in support of such a proposition, nor
am I aware of any such authority. In my view, the test enunciated in the
authorities referred to above correctly states the position in our law. The
position in English law is the same, where the Court of Appeal has held that it
would be ‘neither just nor reasonable to impose on the school a greater duty
than that which rests on a parent’.8 I do not read the dictum of Desai J in
Wynkwart’s case, referred to with approval by my colleague,9 to state anything
different.
[40] In essence, therefore, the issue can be reduced to the question
whether a reasonably careful and prudent parent would allow his or her 8- or
9-year-old child to sleep on an upper bunk bed without an adequate safety
railing. In the present case, we do not have to speculate about the answer: the
record shows that a number of parents did just that. According to the
evidence, quite a few parents accompanied the school group on this particular
outing – as they did on similar outings during ten previous years. A
supervising parent slept in each of the bungalows with nine of the children.
Such parent was entrusted with full responsibility for the well-being of the
children while under his or her care. Obviously this fact could not absolve the
teachers from their primary responsibility for the care and safety of the group
of children. What is significant in the present context, though, is that there is
no evidence that any of those parents found it necessary in relation to the
children under their supervision – including their own children – to prevent

7 Broom & another v The Administrator, Natal 1966 (3) SA 505 (D) at 518F–519A and the English
authorities referred to therein. See also Rusere v The Jesuit Fathers 1970 (4) SA 537 (R) at 539C–D.
8 Van Oppen v Clerk to the Bedford Charity Trustees [1989] 3 All ER 389 (CA) at 412; Charlesworth
& Percy on Negligence 11ed (2006) paras 8–179; 8–193.
9 Quoted in para 25 above.

them from sleeping on the upper bunks. The high-water mark for the
respondent was the evidence of one of the parents, Mr Oelofse, who testified
that he ‘felt a bit nervous’ because of the absence of adequate safety railings.
Yet even he did not find it necessary to take any steps to guard against the
foreseeable risk of harm. Must each and every one of those supervising
parents now be held to have been guilty of negligence? What about all the
other parents who accompanied similar groups from Michael’s school (and
countless other schools and youth organisations) to the same venue during
the preceding ten years and who permitted the children to sleep on the same
bunk beds? Must they now also be branded irresponsible and negligent
parents? I think not. And if the failure in this case of the parents to take any
preventative steps is not to be regarded as blameworthy, why should the duty
resting on the teachers be more onerous?
[41] My colleague refers to the fact that, prior to the outing, some
parents refused to allow their children to sleep on the upper bunks and
concludes that this was so ‘because they thought it to be dangerous’.10 In my
respectful view, however, this merely illustrates that some parents are by
nature more cautious and nervous than others. This fact cannot serve to
establish negligence on the part of those parents who did not take any steps
to prevent their children from sleeping on the upper bunks. After all, we know
that the reasonable parent is not a timorous faint heart, always in trepidation
lest she or others suffer some injury.11 For the same reason, parents falling
into the more ‘cautious’ category will probably also forbid their children to take
part in more robust forms of sport, such as rugby, where a risk of serious
injury is certainly not unforeseeable.12 Will teachers coaching and supervising
rugby matches and practices and the parents allowing their children to
participate therein in future be held liable for damages every time a player
should get injured in the course of the game? If not, why should the position

10 Para 28 above.
11 Cf Herschel v Mrupe 1954 (3) SA 464 (A) at 490E–F.
12 See eg Van Oppen v Clerk to the Bedford Charity Trustees, footnote 10 above, at 392a, where rugby
football was described as ‘the most dangerous activity in schools’.

be any different with regard to the teachers in the present scenario? As it was
put by Singleton LJ in Wright v Cheshire County Council:13
‘There may well be some risk in everything one does or in every step one
takes, but in ordinary everyday affairs the test of what is reasonable care may
well be answered by experience from which arises a practice adopted
generally, and followed successfully over the years so far as the evidence in
this case goes.’

[42] I have come to the conclusion that the kind of harm that occurred in
this case, even though perhaps reasonably foreseeable, is not such that a
reasonable parent would have taken steps to guard against such risk. While
one obviously has a great deal of sympathy with Michael and his parents for
the consequences suffered as a result of the incident, I am not persuaded that
the Minister’s employees have been guilty of any culpable act or omission in
this case. In the result, they cannot be held legally liable for such
consequences. Accordingly I would have allowed the appeal with costs and
would have amended the order made by the high court so as to dismiss the
respondent’s action with costs.

B M GRIESEL
Acting Judge of Appeal

13 [1952] 2 All ER 789 (CA) at 792.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
27 November 2009
Status:
Immediate

HAWEKWA YOUTH CAMP

FIRST APPELLANT

THE MINISTER OF EDUCATION FOR THE
WESTERN CAPE

SECOND APPELLANT

and

GARY MICHAEL BYRNE

RESPONDENT

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

On Friday, 26 November 2009, the Supreme Court of Appeal dismissed the appeal
in Hawekwa Youth Camp and another v G M Byrne. The appeal originated from an
action instituted by the respondent, Mr Gary Byrne, in the High Court, Cape Town,
on behalf of his minor son, Michael, who was born on 15 June 1995. In March 2004,
when Michael was almost nine years old and a grade 3 learner at the Durbanville
Preparatory School, he accompanied a 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 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 damage.

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 the two appellants, who had wrongfully
and negligently failed to do so. The first appellant was the owner of the Hawekwa
Youth Camp site where the incident occurred. The second appellant is the Minister
of Education in the Western Cape who was cited in his capacity as employer of
teachers at Government schools within the area of jurisdiction, including the
Durbanville Preparatory School.

The Cape High Court declared both appellants liable, jointly and severally, for the
loss resulting from Michael's injuries. After the appeal was noted, a settlement was
reached between Mr Byrne and the first appellant, with the result that it played no
further part in the appeal. But proceedings between the Minister and Mr Byrne
continued.

It was not in dispute that during the night of 3 March 2004 Michael slept on the upper
portion of a double bunk. From the outset, Mr Byrne’s contention as to how Michael
ended 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 Minister, a barrier which
was ineffective – to prevent him from doing so. During the course of the
proceedings, various alternative suggestions were made on behalf of the Minister as
to how the incident might have occurred. This was one of the issues at the trial.

On that issue the Cape High Court found in favour of Mr Byrne. The further issue
was whether the teachers accompanying the group were negligent in allowing
Michael on an upper bunk which proved to be unsafe. On this issue the Cape High
Court found that a reasonable teacher would foresee the danger and would have
told Michael to sleep on the floor. The Supreme Court of Appeal confirmed the
findings of the trial court on both these issues and thus the Minister's appeal was
dismissed with costs.