The importance of the teaching profession, and indeed the responsibility which accompanies this vocation, cannot be overestimated, as teachers are tasked with educating, counselling, positively disciplining and, indeed, caring for children for extended periods of time in loco parentis, that is, in the place of a parent.
It is this aspect of the teacher’s role - the duty of care - which has often been deliberated on by our courts, and the courts have consistently found that teachers owe children in their care a legal duty to act positively to prevent physical harm being sustained by them. A teacher can therefore be liable for physical harm suffered by a child in her care if (a) a reasonable teacher in her position would (b) have foreseen the danger/risk to the child and (c) would have taken reasonable steps to guard against this occurrence and (d) the teacher failed to take these steps.
As stated above, the preponderance of case law has to do with physical harm suffered by children as a result of their own misadventure. In the case of Hawekwa Youth Camp v Byrne 2010 (6) SA 83 (SCA) teachers were held liable for damages suffered by a young boy who fell from a top bunk and sustained a head injury whilst on school trip, and in Pro Tempo Akademie CC v Van der Merwe 2018 (1) SA 181 (SCA) the school was held liable for damages suffered by a young boy who became impaled on a steel post near a sports field.
The question, in the context of our current society and the bullying – both of a ‘conventional’ and cyber-nature – which reports would suggest is rampant in schools, is whether the duty of care which teachers owe to children extends to instances of bullying in the school context, in other words, can teachers be held liable for failing to prevent harm (emotional, mental and physical) caused by bullying perpetrated by one child against another?
It is submitted that the Constitutional imperatives in Section 9 (the right to equality and freedom from discrimination), Section 10 (the right to dignity), Section 12 (the right to freedom from violence and degrading treatment), Section 24 (the right to a safe environment) and Section 28 (the rights of a child to appropriate care and protection from abuse and degradation) of the Constitution strongly motivate for such an extension.
Teachers have a duty, at common law and in terms of the Constitution, to maintain a safe school environment, free from violence of all kinds, and they can and should be held liable for failing to protect children in their care from behavior which affects their well-being and infringes their fundamental rights. This does not impute a type of vicarious liability to the teacher for the acts of the bully, but rather holds the teachers liable if they could, and should, have intervened to prevent the harm – e.g. breaking up the altercation, reporting the incident to a parent or social worker, or indeed possibly even assisting a child in their care to take out a protection order in cases of severe harassment and intimidation.
Contributor: Tamsin Jones (Senior Associate) (Litigation Department) (Uhlanga Office)
Tel: 031 566 2207
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