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Schools need to maintain sufficient insurance cover

01 October 2013 Edwina Pryce, Jay Page, Norton Rose Fulbright South Africa

When we drop off our kids at school, we assume that we are entrusting them to a safe environment which poses little risk of their lives being in danger. However, this is not always the case, and brokers have an important role to play in ensuring that schools are sufficiently covered against unlikely circumstances.

One of the largest damages awards to date, R23.5 million, was made in August 2013 to a student, Christian Rabie, who suffered serious brain injury after a dangerous school playground game went awry. That same month saw calamity strike another young student who lost his arm in an accident while hiking as part of a school excursion.

The importance of cover

The duty of care owed to students and their parents requires that schools create and maintain a safe environment by exercising control and supervision and taking reasonable precautions to prevent physical harm to students.

This would be so even when taking the students out on school excursions because the students remain under the school’s supervision. The question still has to be answered in each case whether the school was negligent in relation to the event.

Three characteristics of the school environment make the risk of liability particularly real:
 
- Regardless of the teacher to student ratio, the supervision of large groups of children is a difficult task. It is arguable that all that is required is reasonable supervision in these circumstances, but the notion of what is reasonable is notoriously difficult to define.
- Secondly, and we have seen the impact of this in Rabie’s case, injuries to children have the potential to give rise to large damages awards because the effects of any injuries tend to have far reaching consequences. If the child is disabled, the claim for loss of future earnings and future medical expenses alone may be massive. It is likely that general damages for loss of a limb by a young, able-bodied school boy would be an award between R600 000 and R800 000.
- Finally, and this is again illustrated in Rabie’s case, it can be very difficult to apportion liability in these types of cases. The Court held that it was not for Rabie’s parents to have taught him not to engage in dangerous activities, perhaps generously, nor was it young Rabie’s fault for taking part in such a dangerous game in the first place. As Rabie was under fourteen years old at the time, the law presumes that he lacked the maturity to appreciate the danger of his actions and the school failed to prove that he did. A minor between the ages of fourteen and eighteen is presumed capable of appreciating the consequences of his actions.

Realistic protection

One way for a school to protect itself is by ensuring that parents sign appropriate indemnities, particularly before excursions that may present unexpected risks. A school may not be able to exclude its liability towards a minor. An indemnity given by the parents, however, would be effective. For example, if the parents agree to indemnify the school for any liability towards their child that may arise on an outing, then the school would be able to look to the child’s parents for a reimbursement should there be a claim by the child. There would thus be little point in the minor pursuing such a claim, because doing so would mean that his action would indirectly be against his parents.

Schools need to ensure that their indemnity forms are appropriately drafted to ensure that they are as protected as can be. The scale of the Rabie award should also prompt schools to ensure that they have sufficient third party cover in place, particularly in light of the unique risks presented by the school environment.
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