Bloemfontein - Six years after a Pretoria boy's teeth were knocked out on an unattended beachfront pool slide, the Supreme Court of Appeal (SCA) has found the eThekwini municipality liable for the damages he and his mother suffered.
The lawyer acting for the boy's mother, Tony de Sousa of AC de Sousa Attorneys, said yesterday his client was thrilled. “We just hope the municipality takes the necessary steps to ensure the safety of children using their facilities in the future,” De Sousa said.
The case went to the SCA after the Durban High Court dismissed it last year, with Judge Esther Steyn finding there was no basis on which the city should be burdened with protecting and controlling the use of the slide.
This week, the SCA found Judge Steyn erred and set aside her ruling.
It found the city created a potential risk of harm by providing a pool with a slide and that it had a legal duty to avoid negligently causing harm to children using that slide.
“The steps that could have been taken to prevent harm, by ensuring access control, are relatively simple and would not place an intolerable financial burden on the municipality,” it said.
In May 2011, the boy – then 8 – was coming down the slide when a group of children behind him, bumped him.
He lost control and smashed into the side of the slide, fracturing his jaw and knocking out a number of his teeth.
His mother took the city to court claiming there was no-one manning the slide that day and that the city was obliged to ensure it was safely used and access to it, controlled.
The SCA found that the high court had misidentified the issue at hand.
The high court had looked at “whether a parent exercising parental control over a child can legally expect of a local authority to either share in the duty of parental control or usurp the duty and responsibility”.
But, the SCA said, it was whether there was a legal duty on the part of the city to supervise and control access to the slide.
The high court maintained that providing supervision and access control, would place a financial burden on the city.
But the SCA found this was “without foundation”.
“Access to the slides can be controlled at the top of the stairhead by an official … It may well be that a simple and safely constructed turnstile on either side of the slide with an official centrally placed might be even more effective… None of these steps were considered, let alone implemented,” it said.
The SCA ultimately found the city failed to take steps to guard against the reasonable possibility of operating the slide without access control, causing harm to children using it.
De Sousa said he and his client had always maintained that the city should have placed a supervisor or lifeguard at the pool at all times.
“As the SCA correctly pointed out, the means of avoiding the harm was relatively simple and not costly,” he said.
His client was also awarded costs.
City spokesperson Tozi Mthethwa said yesterday that the municipality respected the SCA’s decision.
“The judgment will be studied, before any decisions regarding an appeal are taken,” she said.