for my business
for specialised risks
I want to
Insurance for specialised risks
Insurance for agriculture
Call us on
For claims related queries
Over the past few weeks media headlines have been filled with harrowing stories of tragedies across the country affecting learners at schools. These tragedies have obviously fostered much discussion in the media regarding the role of schools in loco parentis. Meaning ‘in the place of a parent’, this legal doctrine holds that educators assume custody of learners at school, while they do not have the protection of a parent/ guardian. Parents delegate certain responsibilities for their children to the school. The school then has a legal responsibility to provide a safe environment. What exactly does this responsibility entail?
In loco parentis means that teachers must constantly look out for their learners’ best interests and welfare. In other words, school officials have the responsibility to prevent foreseeable dangers from harming learners. Over the years, the courts have stood by the principle that heightened preventative measures must be taken by persons who have learners in their custody.
This extends to persons who control any areas where children are present or could possibly be present. Children do not necessarily have the same comprehension of danger or potential danger as adults have. So, it is the duty of persons responsible for the children to ensure that no danger exists in these areas. The school, as a custodian of areas where children could be present – sports fields, play areas, classrooms – has the same duty of care (even if the children are not in their custody), to make sure that their premises do not present a risk of harm.
The reasonable person test
To answer whether a danger exists, courts ask if a reasonable person responsible for a child would have removed the danger or kept the child away from it. This ‘reasonable person’ is a fictional average man or woman, who is not reckless or overcautious. They are aware of their surroundings, and the dangers inherent in various activities. Should the person concerned also have a particular expertise, then their conduct is measured against that of the reasonably skilled, competent and experienced person of such a group.
Questions the court may ask include:
Understanding delictual liability losses:
Schools acting in loco parentis may be exposed to delictual liability losses. These are losses concerned with damages suffered by a person resulting from a wrongful act or the omission of another, for which that person is entitled to compensation in terms of our common law. Delictual liabilities include cases where a third party holds a school liable for damages or injury they sustained. The five requirements for delictual liability are; conduct; wrongfulness; fault (intention or negligence); causation; harm. Each of these must be proved for a person to have committed a delict (violation of the law), and thus to be delictually liable.
How do schools mitigate the risks associated with in loco parentis?
Many schools transfer the risks to a reputable insurer such as Santam and use the insurer’s expertise for proactive risk management. For example, the insurer can advise on how to mitigate risks involved in external activities that could put learners at risk, through measures like these:
It’s important that schools seek an insurance product that addresses the risks they’re exposed to and provides additional cover and benefits tailored to their needs. It’s also vital to ensure the product’s definition of the insured extends to include all parties who have custodianship over children, from the principal and teachers to part-time teachers, pupils, trustees of the governing body and members of the parent teachers association – as Santam’s Educational Institutions product does.
The school’s in loco parentis responsibility is extremely serious, and it’s pivotal all parents and school-linked parties are familiar with the legalities involved.
*If the riding of an animal is in respect of a domestic animal such as a horse, then the age requirement could be lowered to 7 years of age.
By Adrian Chester, Senior Property & Casualty Underwriter at Santam
By clicking accept, you agree to this, as outlined in our cookies policy.