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Whose Liable For Your Child's Injury at your local restaurant?

We often hear of accidents in which a child or toddler is injured. Has this become something which society accepts as the norm … that accidents do happen? Who bears liability in this case and who is responsible for safety in these situations?

Accidents happen so quickly – the kind which turns a day of excitement into a nightmare filled with horror. These types of freak accidents can happen in the blink of an eye if the necessary steps are not taken to prevent them.

Take your local restaurant as an example. Nowadays every restaurant has some sort of playroom or entertainment area, which is available for the use of children and toddlers. These entertainment areas have now also become popular at nurseries and even at functions such as weddings or parties, in order to keep the youngsters entertained. The question remains – who is to be held responsible for ensuring the safety of all at these entertainment places? What is the legal position today in South Africa?

In order to determine the legal position we have to relate to some practical examples, thus we will make use of the example where entertainment is offered at local nurseries or restaurants, as well as at functions. The Children’s Act will find application hereto.

Section 140 of the Children’s Act 38 of 2005 finds application if:

  • The place of entertainment is accessible through the use of doors, stairs or even lifts and this includes entrance by mechanical means;
  • The majority of the people entering the area are children; and
  • The number of people, including children, entering the premises, is more than 50 at a time.

In the abovementioned case the person providing the entertainment must take notice of the measures to be applied as set out in the Commentary on the Children’s Act, with specific reference to Section 140 thereof.

The person providing entertainment in an area qualifying in terms of the above, is also required to know how many people, including children, can be accommodated on the premises, and must also ensure that there is a sufficient number of attendants available to assist in ensuring that too many children do not enter the area of entertainment, or alternatively ensure, upon admittance, that it is completely safe for them to do so.

Should the number of people (including children) exceed 50 in total, it remains the responsibility of the person providing the entertainment to ensure that all the reasonable steps and precautionary measures are taken to ensure the safety of the children and other people at such a place of entertainment, in order to ensure the safety of all at all times.

I refer again to the example of the restaurant or function. These places of entertainment sometimes accommodate large numbers of children at a time, even toddlers. This would require strict adherence to the safety measures set out.

A children’s party, where a jumping castle is available, is another example. For instance, it is the birthday party of Mr X’s daughter, and Mrs Y has offered to set up her jumping castle at the party for the entertainment of the children. In this case it would remain the responsibility of Mrs Y to ensure that all safety measures are complied with and she, as host of the entertainment, will be held liable to ensure the safety of the children. Should Mrs Y not be held liable for some reason, the liability to ensure the safety of the children will fall upon Mrs Y’s principal, as the “agent of the entertainment”.

It remains of utmost importance for the presenter or agent of the entertainment to take all reasonable steps necessary to ensure the safety of the children and even the toddlers, insofar as it is possible. In situations such as these, where large numbers of children are accommodated, stricter measures of safekeeping will be demanded.

This brings us to another requirement: The requirement that the movement of all participants to the specific entertainment must also be monitored at all times.

The overall requirements to qualify in terms of Section 140 create the impression that the section and the measures to be taken only find application in situations where entertainment is presented indoors. This is in fact not the case. Outdoor entertainment areas, where access is controlled, also fall under these criteria. Outdoor areas such as beaches and open fields will obviously not form part of or fall under the criteria, seeing that there is no regulation of access to such places.

In summary we can thus conclude that the responsibility to ensure the safety and protection of the children making use of the entertainment areas will be that of the “entertainment organiser “or “entertainment manager”, and that this person should take the following steps:

  • Determine the maximum safe accommodation space for the number of children or people who are expected to be entertained;
  • Ensure that extra children do not enter such premises unless it is safe;
  • Control the movement of all children within the area; and
  • Ensure that overall safety is upheld within the vicinity of the entertainment area and the specific area at all times.

The problem is that things can still go wrong and this brings us to the steps that can be taken against the offender. Even though there are currently no criminal sanctions envisaged or determined, measures can still be implemented against the offender.

A person who is duly authorised by the municipal authority of the area may enter an enclosure at any given time in order to ensure that all the safety measures are complied with. If they are found not to be compliant, such duly authorised person may withdraw any licence that was granted/issued to permit the entertainment that is offered.

Other measures include municipal health and safety by-laws which may be invoked in order to disallow the entertainment until the necessary safety measures are taken. And finally, there is always the option of instituting a delictual claim against the offender in the event of injury or damages suffered as a result of negligence on the part of the offender.

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