Has your child been injured at daycare? Know your rights

If your child is injured at daycare, what recourse do you have as a parent and how should you handle it? By Chana Boucher

It’s not uncommon for children to get injured at daycare. Because of charming clumsiness and curiosity, toddlers are prone to accidents even while in a teacher’s care. The majority of childcare facilities including nursery schools and daycare, insist that parents sign an indemnity form when enrolling children in their institutions. This exempts the school and its employees from any responsibility should your child be injured at daycare. But according to experts, these forms don’t always hold much legal weight.

ALSO SEE: Your essential child safety guide

To sign or not to sign

Bianca Coelho Barata, an associate at Goldman Judin Inc., explains that an indemnity form is an undertaking by one party (the parent or guardian) not to institute action against another (the crèche) for any damage caused to the child while in the school’s care or custody:

“Strictly speaking, the daycare achieves a sense of protection against possible future loss and damages claims from parents.”

Minister of the Department of Social Development in the Western Cape, Albert Fritz, says indemnity forms are standard practice but will not protect the facility if neglect can be proven. Ultimately the child’s well-being, while at the daycare, is the responsibility of the owner or board of management.

When signing the form, Barata says you should always read it carefully to understand what you’re agreeing to:

“If you don’t feel comfortable with the contents of the indemnity, you should discuss it with the daycare and try to negotiate the contents (it’s an agreement after all). If they’re not willing to change the contents, you can refuse to sign but it could result in your child not being accepted by the facility.”

Steps to take when your child is injured at daycare

Despite what the indemnity forms say, it’s common for childcare facilities to have public liability insurance to cover expenses in the event of a child suffering serious injuries.

Donald Kau, the head of Corporate Affairs at Santam, says you need to have a reason to believe the daycare is legally responsible for injuries due to negligence:

“If your child has been injured and you believe you have a valid case to prove such negligence, you could tell the daycare that you’re holding it liable for the injury, without immediately appointing an attorney. This can save you a lot of money in legal costs and expenses.”

According to Kau, the insurance company will pay if the daycare is legally liable and the amount for your little one’s injuries and ongoing treatment has been confirmed. This legal liability can often take many years to determine, depending on the seriousness of the injury as well as the circumstances leading up to it.

ALSO SEE: How to create your own first-aid kit 

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Myles Wittstock, founder of the Playground Safety Institute, suggests taking these steps immediately following an injury:

  • Get reports from the doctor or hospital indicating the nature of the injury and how it occurred.
  • Take photos of the equipment involved in the incident before it’s repaired or dismantled.
  • If possible, ask your child what happened.
  • Commission a professional safety consultant to do a full investigation at the facility.

Minister of the Department of Social Development in the Western Cape, Albert Fritz, says the facility must have written reports of all incidents and parents should insist on getting a full report on the matter. “If neglect is suspected, they can also contact the Department to investigate,” he says.

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