Local authorities often face claims for damages arising from the use of their facilities and infrastructure. Many, if not most claims against local authorities arise from alleged failures to prevent a loss where there was a legal duty to do so. Local authorities insure themselves against these claims and insurers are faced with the decision of whether to admit or repudiate these claims. In Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3)SA 824 (A) it was held that “factors determining the existence of such a duty include our ideas of morals and justice, the convenience of administering the rule and our social ideas as to where the loss should fall”.
In the recent unreported judgement of Karlien van Vuuren v Ethekwini Municipality, KZN High Court, Durban, case number 7099/2012 delivered on 19 February 2016, the court considered, among other things, if wrongfulness (an element of delict) had been established on the part of the Ethekwini Municipality. The important facts were as follows: a minor child sustained injuries while using a slide on the Durban beachfront in the presence of the child’s mother. The mother instituted action proceedings and alleged that the waterslide presented a risk of injuries to the children using it and that the Municipality had a legal duty to guard against such injuries.
The element of wrongfulness, which is often confused with that of fault, required the court to examine whether the Municipality has a legal duty to supervise children who are using its waterslides. This determination involves policy considerations and the exercise of a value judgement. The court concluded that it was reasonable for a Municipality to expect that parents of young children would supervise and control them. It was deemed an unsustainable if not an intolerable burden on local authorities to supervise children in instances where the parents are present but fail to do so and that imposing such a duty would saddle the local authority with a greater duty of care than that imposed on parents. The cost implications of imposing such a duty on local authorities were also considered to be crucial. The court held that the child’s mother failed to prove the presence of a legal duty and consequently failed to prove the element of wrongfulness.
This ruling underlines the primary duty on parents to exercise parental care and protect the interests of their own children. The judgment is also highly relevant to the short term insurance industry, particularly to insurers who have to assess risks, premiums and claims for indemnity.