Disclaimer vs liability claim: Court rules on school's duty of care

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In the case of Roets v School Governing Body: Du Preez Van Wyk Primary School and Others [2024], the North Gauteng High Court held that the school could be held liable for injuries to persons on their property in certain instances, despite disclaimers displayed on the school campus seeking to exclude liability.

Roets v School Governing Body: Du Preez Van Wyk Primary School and Others

In 2013, Roets accompanied her daughter to sports practice at the Du Preez Van Wyk Primary school premises. While walking along the field, she stepped into an unprotected and obscured hole that was partially covered by the field's grass. Unfortunately, she sustained a lacerated and fractured right ankle. She instituted legal action against the school for damages.

School failed in their duties

Roets alleged that the school had failed in their duties, as imposed by section 16 of the School's Act 84 of 1996, read together with section 20(1)(g). The sections impose the following obligations on a school:

• To administer and control the school's property, including buildings and grounds;
  
• To ensure that the school is free if all sources of danger and possible harm to teachers, learners, parents or visitors;
  
• To act positively to prevent harm being sustained by members of the public visiting the school; and
  
• To ensure that the school surroundings are devoid of features that could sensibly be regarded as a hazardous, dangerous or unsafe for teachers, learners, parents or visitors.

In addition, Roets argued that the school's negligence or otherwise unlawful conduct was the sole cause of her injury as the school had failed to:

• Ensure that the school's surroundings and, in particular, the sports field has no unprotected holes nor any other source of danger;
  
• Bring the presence of the open but concealed hole to her attention;
  
• Take reasonable steps to secure the exposed hole; and
  
• Exercise reasonable care and skill to prevent the incident.

Conversely, the school argued that there was a disclaimer displayed by the Governing Body at the school's entrance and other prominent places around the school's premises when the incident occurred. In terms of the disclaimer, an entrant to the schools' grounds did so at their own risk and that 'the school accepts no responsibility for any injury, loss or damage which [one] may suffer during [their] visit.'

Duty on the school to ensure safe premises

The court held that there was a duty on the school to ensure that their premises are safe for its users.

The court employed the test formulated in the often quoted Supreme Court of Appeal judgment of Kruger v Coetzee test for negligence and theorised that the test for negligence based on the facts in the present case was as follows:

• Was there a hole behind the pavilion that occasioned Roets' injuries? If so,
  
• Was the school aware of this fact? If so,
  
• Did they take reasonable precautions to avert harm to people entering the school?
  
• Can the school rely on the disclaimer board to avoid liability?

The court evaluated the evidence presented by both sides and found that the school knew or ought to have known about the existence of the hole because it was within the school premises.

Further, the reasonable person in the school’s employ would have foreseen the possibility of the hole causing harm and taken reasonable steps to cover it or to cordon it off, but they failed to do so.

What also counted in Roets' favour was that the school lead no evidence to show that Roets had failed to take precautions for her safety.

Regarding the disclaimer, there were mutually destructive versions with Roets having denied that there was a disclaimer displayed at the school premises and the school alleging that it was there. The school alleged that there was a sign, but it could not conclusively be confirmed by their witness and the evidence lead in that regard was vague and left room for doubt.

Accordingly, the court did not make a decision on the more interesting question, whether the disclaimer notice protected the school.

School duty of care extends beyond its learners and employees

Ultimately, the court concluded that the school had failed to adduce sufficient evidence to rebut the prima facie case of negligence put forth by Roets and that they were ultimately found to have been negligent and thus liable for her injuries.

Further, the court held that the school failed to lead evidence regarding the existence or absence of the hole. This implies that they were unaware of conditions on the school premises. Had they been actively engaged in reasonable due diligence and maintenance of the facilities, the hole would have come to their attention.

Put differently, the school was unaware of the dangers which were present on their campus and, had Roets not befallen her unfortunate injury, the hole would never have come to their attention and worse, a learner could have succumbed to similar injury had they fallen into the hole.

The importance of this case rests on the fact that a school's duty of care extends beyond simply their learners and employees, but also to parents and consequently visitors.

This principle has application beyond schools

The principle has application beyond just schools; places which allow public access ought to be aware of the condition of their premises to ensure that it is safe for use by all members of the public at all times. Ignorance of an existing hazard on one's property is not a defence to a claim for injury which arises therefrom.

Institutions or businesses which allow public access are entrusted with a duty of care towards each person using their facilities for any reason, be it a business meeting, to access a coffee shop on the premises or to watch sports practice after hours.

It is prudent that frequent due diligence is conducted into the safety and usability of public spaces to ensure that the fate which befell Roets may be prevented for other members of the public in future in other public spaces and not just schools.