KAYONGA HERMAN 2023-B411-1570

Whilst there are many situations in which an individual might have acted carelessly, unless they
have a duty of care to the person harmed by their carelessness, then no claim will arise. Duty of
care consists the first of the three primary elements of tort (duty of care, breach and causation).
Lord Atkins in Donoghue v. Stevenson1 laid down a broad definition of the duty of care: ‘You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbor’. Who then is your neighbor? Your neighbor is someone who is
close to me and directly affected by my act, that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question’

In the realm of school, while pupils are on school premises, school authorities and teachers owe
pupils a duty of care of general supervision concerning their physical safety. "A teacher is to take
such measures as are reasonable in the circumstances to protect a student under the teachers
charge from the risks of injury that the teacher could have reasonably foreseen." (Richards v
State of Victoria,) 2

Teaching is a skilled profession and teachers must accept the legal consequences of such special
knowledge and skills. Teachers in breach of duty of care may be liable for injuries inflicted by
one student on another, as well as the injuries sustained by the student. As part of that duty,
teachers are required to supervise students adequately. This means that a child is in need of
protection against the conduct of others, or indeed of himself, which may cause him injury when
he is beyond the control and protection of his parent and the school master is in the position to
exercise the authority over him and afford him, in the exercise of reasonable care, protection
from injury. Failure to execute this duty of care where it exists , and this failure results into
injury on the child, the school is liable for compensatory damages paid to the injured child’s
family, the school pays a commission to the student and may suffer a large reputation and
financial loss. This is done through the school liability insurance cover.

1
(1932) 29
2
1969
 It is important to note that this duty of care of the school authority is non-delegable.
Commonwealth v Introvigne3, Mason J stated that: The duty is not discharged by merely
appointing competent teaching staff and leaving it to the staff to take appropriate steps for the
care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the
children, a duty the performance of which cannot be delegated. Which brings us to Visensio
Kyolibera V West District Mengo 1971 1 ULR 273, pupils aged 7 years were let to go to the
lavatories without supervision by the class teacher who had been delegated by the headmaster,
the conditions of the lavatories were potentially dangerous as well as the hooks at the lavatory
were dangerous if the door not properly closed. Court held that the headmaster in his admission
that “the hooks at the lavatory were dangerous if the door wasn’t properly closed ” was a
negligent act that when subject to an objective foreseeability test it resulted into a breach of a
duty of care, in that he would have taken precaution to prevent harm incase the door did not
close instead of delegating to the class teacher that didn’t omitted this.

In order for a parent to successfully bring a claim in negligence for compensation for an injury
on their child , the parent must establish, on the balance of probabilities, following the caparo
test laid down in Caparo Industries Vs Dickman4 to establish a duty of care, then a breach of
the duty, that this breach or failure is the cause of the injury.

This first stage revolves around whether it is foreseeable that the defendant’s carelessness could
cause damage to the claimant. In high risk situations teachers have a higher duty imposed to
supervise the activities of students more closely and to provide proper instructions to the
students, In other words the greater the risk the higher the duty. Warren v. Haines 5 points out, a
risk of injury is foreseeable so long as it is not far-fetched or fanciful. Hood Setaala Vs
Mukasa6, A child carried a catapult to school and in class while using the same hurt another. In
this case the school breached their duty of care which was to supervise the instruments pupils
carried to school from home and in class. Relating to foreseeability in the circumstance, carrying
a catapult to school was dangerous and that the school ought to have taken a preventative
measure like checking students before they enter the school and supervising what kind of games

3
(1982) HCA 40
4
1990 UKHL 2
5
1986) ATR 80-014 at 67,634
6
1973 HCB 187
they play and instruments they use in the playing. The extent of the general duty to supervise
pupils does not extend to constant supervision. To a large extent, however, the question of degree
of supervision will depend on the individual facts and circumstances of a case. Johns v
Minister of Education7, a teacher discovered the pupils had catapults and so was thus alerted to
a potentially dangerous situation. It was held that the degree of supervision which she exercised
was adequate to discharge the duty of care, and so was found not to be negligent.

The second stage is based on whether there is a relationship of proximity between the defendant
and the claimant. This does not dictate that there must be physical proximity between claimant
and defendant, rather that there must be a connection between the two. From Kasifa Nakintu V
Mubende District Admin8 The plaintiff a 6 and a half years old fell into an unprotected large pot
of porridge, that had been placed on the ground infront of the children with the teacher standing
50feet away. It was held that while at this school, the child was under care of the school. Hence
the school had the duty to exercise the case of a reasonable and prudent parent. The pot was left
unattended and no protective measure placed around it when the plaintiff was pushed and fell
inside. A reasonable and prudent parent would have contemplated the occurrence of such. The
school breached the duty of care since it was duty bound to foresee such an incident could occur.

The third and final stage involves establishing whether it would be fair, just and reasonable for
the courts to find that the defendant owed a duty of care to the claimant, in the eyes of a
reasonable human being. Mustafa Lule V West Buganda District Admin 9 following dismissal
from class for his disobedience by the school master, the plaintiff was punched severely by
another several times that led to removal of his spleen. Court held following subjecting the
circumstances to an objective test, despite the fact that the school master had let the two boys be
outside, it was not sufficient evidence to hold the school liable for negligence. The teacher
couldn’t have foreseen that the meeting of the two could result into such a predicament. So the
case was dismissed. So, if all three of these stages are passed, the case can be said to have
satisfied the caparo test, and thus a duty of care can be said to exist.

Once a duty of care is established, the court determines whether a breach of duty has occurred.
This is based on the standard of care required from the teacher which is that of a reasonable
7
(1981) 28 SASR 206
8
1972 ULR 90.
9
1973 ULR 126,
parent. Two aspects which need consideration in the determination of the standard of care; The
standard of care may go beyond that of a reasonable parent to one of an ordinary reasonable
teacher in the same situation. For instance, would the ordinary reasonable teacher have acted in
the same way given the situation? Secondly, the age of the children and their capacity to
appreciate dangers is important. The more dangerous the situation and the younger the children
the higher the duty of care owed by the teacher as shown in the cases above.

It is necessary to establish that the negligent action caused the injury giving rise to the
proceedings, that the breach of duty of care must be causally related to the injury received. The
parent must show a sufficiently close connection between the act or omission, in other words the
breach of duty, and the damage. In most cases parents have often failed because they have been
unable to prove that the exercise of an appropriate degree of supervision would have prevented
the particular injury in question. Causation has been the most difficult element to establish and
even though the existence of a duty of care , the breach of the duty of care may have been
satisfied, if the damage and the breach are too remote, causation is not proven and the case fails.
The fact that a duty of care exists does not of itself mean that a school will be liable for an injury
sustained by a student. In order for the student to succeed in a negligence claim, all of these
elements must be established.