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THE LEGAL LIABILITY OF THE FIRST AID PERSONNEL
In this essay, I will discuss the legal liability of the medical aid personnel in terms of the harm suffered by
Izak Boshoff Forster (hereafter the first respondent). In doing so I will state the 5 elements of delict as
well as the tests, therefore. At the same time, I will reflect on the facts of the Foster case and thereafter
analyze the court’s decision in both the minority and majority decisions. Relevant principles and
legislation will be introduced and explained in this essay in order to substantiate the reasoning behind
the (4?) main arguments.
1.) ELEMENTS OF DELICT
Van der Walt and Midgley state that the 5 elements of delict are conduct, unlawfulness, fault, causation,
and damages.1 I will briefly discuss these elements in relation to the Foster case in order to determine
legal liability.
1. A) Conduct can be described as a voluntary human act or omission which is unlawful if it infringes
upon the rights of others.2 In this case, the 2 medical experts were in agreement that the second injury
suffered by the first respondent was due to the conduct of the first aid personnel in carrying him off the
field without stabilizing his neck with a spine board or neck brace.3 Both categories of conduct namely
commission and omission are present in this case as the second injury is closely related to the
commission of carrying him off the field and the omission of not using the proper instruments to do so.
1. B) A person’s conduct must be regarded as unlawful or wrongful for delictual liability to ensue.4 In the
Foster case, the court held that the Member of the Executive Council of Education, North West Province
(hereafter MEC) would be liable for damages caused by the negligent and wrongful omission of
Volkskool.5 This decision will be critically analyzed in my later arguments.
1. C) Two forms of fault exist namely intention and negligence, but only negligence gives rise to civil
liability. In short, fault arises when a person can be blamed or held accountable for their conduct.6 In the
Foster case, the court attributed the fault to the negligent conduct of Volkskool as mentioned in
paragraph 1. B.7 This decision will be critically analyzed using the “reasonable person test” in my later
arguments.
1. D) For a delict to exist there must be a connection (known as a “causal nexus”) between the conduct
and damages suffered which will give rise to delictual liability. This forms part of causation.8 In this case,
the court stated that the state is liable for delictual damages caused as a result of any conduct in
connection with any school activity conducted by a public school.9 This decision will be further discussed
in terms of factual and legal causation.
1 JC Van der Walt and JR Midgley Principles of Delict (2005)
2 Van der Walt (n 1)
3 Member of the Executive Council, Education, North West Province v Foster and Others 2021 (11) SA 471 (SCA)
4 Van der Walt (n 1)
5 Member of the Executive Council, Education, North West Province v Foster and Others 2021 (11) SA 471 (SCA)
6 Van der Walt (n 1)
7 Member of the Executive Council, Education, North West Province v Foster and Others 2021 (11) SA 471 (SCA)
8 Van der Walt (n 1)
9 Member of the Executive Council, Education, North West Province v Foster and Others 2021 (11) SA 471 (SCA)
1. E) Damages include patrimonial and non-patrimonial losses.10 In this specific case, it can be held that
the first respondent suffered a patrimonial loss in terms of medical and hospital expenses and a non-
patrimonial loss in terms of pain and suffering of the second injury as well as discomfort and the
inconvenience of being partially paralyzed due to the conduct of the first aid personnel.
2.) ANALYSIS OF THE LEGAL LIABILITY
2. A) With regard to the conduct of the first aid personnel, specifically Mr. van Staden, it is clear that his
commission as well as omission as mentioned in paragraph 1.A) infringed upon the first respondent’s
right to bodily integrity.11 This conduct establishes unlawfulness as it infringes upon the first
respondent’s rights and also goes against the convictions of the community. In terms of fault, it is clear
that the conduct of the first aid personnel was negligent which gives rise to civil liability. The reasonable
person test is not applicable to Mr. van Staden as a higher standard exists for medical personnel. The first
aid personnel’s conduct was the factual cause of the damages suffered by the first respondent in respect
of his neck Injury, this creates a “causal nexus” between their conduct and the damages suffered which
results in them being delictually liable. Paragraph (1. E) establishes both patrimonial and non-
patrimonial damage due to the conduct of the first aid personnel.
2. B) Considering that the conduct of the first aid personnel confirms all 5 elements of delict as
motivated in paragraph (2. A) one would under normal circumstances be reasonably able to draw an
inference from these facts that the first aid personnel are delictually liable for their conduct with relation
to the damage suffered by the first respondent. However, in this case, drawing such an inference would
not conclude in establishing the final liability as applicable legislation shifts the responsibility.
3.) SHIFTING OF RESPONSIBILITY
In the Foster case, the court stated that a legal duty exists on Volkskool to avoid negligent harm which
may be caused to learners. Such duty exists due to the relationship of loco parentis coaches and
educators have in relation to the children when such children are in their custody. Volkskool thus
negligently failed in performing their legal duty to ensure that reasonable steps were taken to ensure
that a properly equipped and competent first aid provider was present when hosting the rugby match.
This is evident in the facts as one of the first aid personnel was impertius as he was ignorant,
inexperienced, and untrained to deal with neck injuries that would reasonably be expected in any rugby
match. The court’s decision, in this case, was strengthened by the formula to determine negligence
which was formulated in the Coetzee case.12 As a result, the legal cause of the first respondent’s injury
would be due to the omission of Mr. Bantjies and in turn, Volkskool to take reasonable care in terms of
the legal duty which arose. This decision by the court will be discussed in paragraph 4.
The liability does however not rest with Volkskool as the responsibility and the liability therewith once
again shifts due to legislation. The court held in the Foster case, that in accordance with section 60(1)(a)
of the Schools Act, the state is liable for any delictual damage or loss caused by any conduct in
connection with school activities conducted by a public school for which such school would have been
10 Van der Walt (n 1)
11 Section 12(2)(b) of the Bill of Rights.
12 Kruger v Coetzee 1966 (2) SA 428 (A)
liable if not for the provision of section 60.13 In this instance, rugby qualifies as an activity described in
the Schools Act. Section 60(3) of the Schools Act further states that any claim for loss or damages
described in subsection 1 of the act must be directed against the member of the executive council
concerned.14 Therefore the MEC would be held liable for the first respondent’s second injury as the final
shift of responsibility falls upon the member of the concerned executive counsel as stipulated in
legislation. In term this
4.) CRITICISM OF THE COURT’S DECISIONS
When it comes to proving negligence, I am inclined to agree with the dissenting judgment of Masipa AJA.
Firstly, the facts show that the SARU requirements were met, including medical equipment. If these
requirements were not met the liability would shift to the referee and not to Volkskool which creates a
flaw in Mocumie JA’s argument. Secondly, in order for the MEC to be held liable it must have been
proved that the MEC and Volkskool were negligent. This was not done as the reasonable person test was
not used.15 Thirdly, it could not have been reasonably expected that Mr. Meintjies would have contacted
the HSPCA to verify Mr. van Stadens qualifications. Volkskool’s actions were thus reasonable under the
circumstances as stated by Masipa AJA.16 Masipa AJA’s decision is supported in the Burger case where
the court stated that: “Culpability and foreseeability are tested by reference to the standard of a diligens
paterfamilias”.17
This in term creates a flaw in the single most important factor in the case of Mocumie JA’s judgment.
This factor is the negligence of Volkskool, because without proving such negligence, MEC would not be
liable in terms of the Schools Act.18
Mr. van Staden’s misrepresentation was not adequately considered in Mocumie JA’s argument. The
imperitia culpae adnumeratur rule always applies. This rule holds that lack of skill is equated to fault in
the sense of negligence. If Mr. van Staden professes to be an expert or qualified first aid personnel and
he is not, he will still be tested against such a higher standard. This solidifies the fact that Mr. van Staden
himself as well as the second first aid personnel will be delictually liable for the first respondent’s
damages.
5.) CONCLUSION
13 Section 60(1)(a) of the Schools Act.
14 Section 60(3) of the Schools Act
15 Mashongwa v Passenger Rail Agency of South Africa 2021
16 Member of the Executive Council, Education, North West Province v Foster and Others 2021 (11) SA 471 (SCA)
17 Burger 1975(4) SA 877
18 Section 60(3) of the Schools Ac
In accordance with the dissenting judgment of this case, Volkskool was not sufficiently proven negligent
and therefore not liable. The MEC could therefore not be liable. The factual and legal cause of the first
respondents second injury would therefore remain with the first aid respondents considering the Burger
case as well as the imperitia culpae adnumeratur rule. I, therefore, conclude that the first aid personnel
will be delictually liable for the damages in respect of the second injury suffered by the first responden
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