Newspaper clipping – The Cape Argus – 1 December 2009

Education MEC liable for boy’s brain injuries

The Western Cape Education MEC has been found liable for serious brain injuries that an eight-year-old boy sustained five years ago when he fell from the top bed of a double-bunk during a school excursion to a youth camp outside Wellington.

This follows a Supreme Court of Appeal ruling on Friday that teachers supervising the children at the camp were negligent for failing to ensure that there were sufficient barriers on the top bunks, to prevent the children from rolling out of bed.

The incident occurred in March 2004 when pupils at Durbanville Preparatory School went to the Hawekwa Youth Camp. The pupils went to bed between 9 and 10pm and Michael Byrne, 8, slept on a top bunk. There were nine boys in the bungalow, along with a parent volunteer, Moosa Raise.

At about 4am, Raise was woken by a “growling” noise, and switched on the lights to find Michael unconscious on the cement floor in a pool of urine. He was foaming at the mouth and appeared to be having convulsions.

Raise alerted the teachers and Michael was immediately taken to the nearest hospital for treatment. Medical tests revealed he had a brain injury.

His father, Gary Byrne, instituted a Cape High Court action for damages against the Hawekwa Youth Camp and the Western Cape Education MEC. Although no one saw how Michael ended up on the floor, Byrne relied on the report of the neurologist as the basis for his allegation that Michael had injured his head when he rolled from the top bunk on to the floor. In the action, Byrne alleged that his son’s injuries could have been prevented by youth camp staff and school teachers.

At the end of the trial, Justice Andre le Grange found the youth camp and the MEC liable for the boy’s injuries. However, he later granted them leave to appeal. Before the appeal was heard, Byrne settled the case with the Hawekwa Youth Camp but the MEC continued with the appeal.

In a judgment handed down on Friday, three judges of appeal found that Michael’s teachers should have foreseen that the absence of a barrier on the upper bunk posed a real risk to him. They added that a reasonable teacher would examine the beds and consider whether there was sufficient protection to prevent the children from rolling off and injuring themselves.

In a dissenting judgment, two others judges agreed that the most probable inference was that Michael had rolled from the upper bunk while he was asleep. However, they disagreed with the other three judges’ finding that the MEC should be held liable for his injuries. They said that even if it was foreseeable that the children could suffer some harm due to the absence of safety railings on the upper bunks, this was not sufficient to saddle the MEC with liability