S v CHIPINGE RURAL COUNCIL 1988 (2) ZLR 275 (SC)

Flynote

Criminal law — culpable homicide — negligence — local authority allowing children to swim unsupervised in public swimming pool — whether D authority negligent — sign disclaiming responsibility — effect of — when child may consent to risk — causation — whether negligence caused by death.

Headnote

The appellant rural council maintained a swimming pool which was largely used by children. At the entrance to the pool was a sign which excluded children under 8 years of age, unless accompanied by an adult, and which warned that there would be no assistance in the event of an accident. The swimming-pool superintendent's tasks were to ensure that unaccompanied children under 8 years did not enter and to collect the prescribed fee. The council engaged no-one to supervise or control the activities or behaviour of the swimmers and took no measures to prevent the occurrence of accidents. One day a 12-year-old girl was found to have drowned at a time when several other children were swimming. The council was convicted by a magistrate of culpable homicide; it appealed against the conviction.

Held, that there were several eventualities, all foreseeable, which could lead to a child being drowned, and there was a duty on the council to provide supervision for children of 8 years and above who used its swimming pool. This did not mean that a constant watch must be maintained on every single child who is swimming; the degree of supervision and vigilance to be exercised should be reasonably sufficient and adequate having regard to the circumstances of the case, including the potential victim's ability to look after himself.

Held, further, that, assuming that the wording in the notice at the entrance to the pool was to be taken as conveying that all persons using the pool did so at their own risk, such an exemption is not binding on a 12 year old child. Majority is normally regarded as the criterion determining the existence of legal capability in respect of consent or the voluntary assumption of risk; but even capacity to consent is not co-extensive with capacity to contract, the child must have the mental capability and maturity to evaluate responsibly the nature, extent and implications of his consent or assumption of risk. Even if the deceased perceived the danger inherent in the use of a public swimming pool for which no supervision was provided, which was doubtful, she certainly did not fully appreciate it or consent to incur the risk involved.

Held, further, that it could not be held with the requisite degree of certainty that but for the negligence of the council in failing to provide supervision, the drowning would not have occurred. There were various possible reasons why the child might have drowned, and even if a supervisor had been present and performing his duties in a responsible and efficient manner, he might well not have noticed the deceased until it was too late. The council's failure to provide supervision, therefore, was not shown to be causative of the death of the child.