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[2010] ZAGPJHC 124
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Pitzer v Eskom (09/24486) [2010] ZAGPJHC 124 (29 November 2010)
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
09/24486
DATE: 29
/11/2010
In the matter between:
HENDRIK
JOHANNES
PITZER
.............................................................
Plaintiff
and
ESKOM
.......................................................................................................
Defendant
______________________________________________________________
J U D G M E N T
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] The plaintiff has instituted
action against the defendant for damages arising from injuries he
sustained during an electrical
shock at the defendant’s 88kW
substation located in the high voltage yard, Arcelor Mittal Steel
Complex, Vanderbijlpark,
on 14/7/2006.
SEPARATION OF ISSUES
[2] At the outset of the trial, and by agreement between the
parties, and in terms of Rule 33(4) of the Uniform Rules of Court,
I
ruled that the merits of the plaintiff’s claim be first
adjudicated upon and that the question of the quantum of the claim
be
dealt with later, if necessary.
THE CASE ON THE PLEADINGS
[3] The pertinent allegations on which the plaintiff relies are
contained in paras 3 to 7 of the particulars of claim as follows:
“
3.
On or about 14 July 2006 and at the Defendant’s Van Der Bijl
88Kw Substation in Van Der Bijl Park in Gauteng, Plaintiff
was
electrocuted by high voltage electricity current emanating from the
plant of machinery of Defendant in a high voltage live
chamber (“the
live chamber”) as described in Defendant’s Operating
Regulations for High Voltage Systems (“ORHVS”).
4. Defendant is an undertaker
for the purposes of Section 1 and Section 26 of the Electricity Act,
Act No 41 of 1987.
5. Plaintiff’s electrocution was caused by induction or
electrolysis and/or by means of electricity generated or transmitted
by the plant or machinery of the Defendant as a result of which
Plaintiff was injured and suffered damages.
6. The electrocution of Plaintiff occurred as a result of the
sole negligence of the Defendant who was negligent in one or more
of
the following respects:
6.1 Defendant failed to take adequate or any precautions to
prevent persons who were not in possession of an Eskom Work Permit
for
supervision of work in a live chamber from gaining unsupervised
access to the live chamber in its substation.
6.2 Defendant’s Responsible Person who was issued with an
Eskom Work Permit for supervision of live chamber work failed to
lock
or otherwise secure the live chamber access points before leaving the
live chamber unattended.
6.3 Defendant failed to control access to the live chamber
adequately or at all.
6.4 Defendant failed to
comply with the requirements of the Occupational Health and Safety
Act, Act No 84 of 1993 (“the OHS
Act”), with regard to
safety procedures relating to access to live chambers, and in
particular, paragraph 2 of
Regulation 3
of the
General Machinery
Regulations promulgated
in terms of the OHS Act by:
6.4.1 failing to enclose the premises where Defendant’s
electrical machinery constituted a danger adequately or at all; and
failing to keep the designated entrances to the premises where
Defendant’s electrical machinery constituted a danger closed
and locked whilst unattended.
6.5 Defendant failed to comply with its own Operating Regulations
for High Voltage Systems (“ORHVS”) by:
failing to ensure that the entrances to the live chamber were
closed and locked whilst the chamber was unattended;
failing to ensure that no dangerous situation arose whilst work
was performed in the vicinity of the live chamber;
failing to control access to the live chamber adequately or at
all.
6.6 Defendant failed to prevent the electrocution of Plaintiff
when by the exercise of reasonable care it should and could have
done
so.
Defendant owed all persons
who were not in possession of an Eskom Work Permit for supervision
of work in a live chamber, including
Plaintiff, a legal duty to act
without negligence, to prevent unsupervised access to its high
voltage live chambers and to prevent
with live apparatus by such
persons.
”
[4] On the other hand, the defendant has pleaded in paras 3 to 7,
incorporating the defendant’s amended plea, as follows:
“
3.
Ad paragraph 3
The defendant admits that on or about 14 July 2006 and at the
defendant’s Van der Bijl 88KW Substation in Van der Bijl Park
in Gauteng, plaintiff was electrocuted.
The remaining allegations in this paragraph are denied.
Ad paragraph 4
The allegations in this paragraph are admitted in so far as they
correctly record and paraphrase the terms and conditions of the
Electricity Regulation Act 4 of 2006 which has replaced the
Electricity Act No. 41 of 1987 with the exception of Section 5B.
Ad paragraph 5
The allegations in this paragraph are denied.
Ad paragraph 6
Each allegation in this paragraph is denied.
The Defendant pleads that
when the Plaintiff entered the high voltage yard, and again when
Plaintiff entered the live chamber,
and when he made contact with
the Defendant’s equipment at the Vanderbijl 88KW Substation
he was aware that such entry
and contact would expose him to the
risks, dangers and perils attendant upon entering live,
high-voltage environments including
the risk of being injured in by
way of an electric shock.
Despite such knowledge, and whilst appreciating the risks,
dangers and perils, the Plaintiff nonetheless entered into the high
voltage yard and the live chamber and made contact with equipment
within the live chamber.
In the circumstances the Plaintiff consented to being subject to
the risks, dangers and perils attendant upon such entry, including
the risk of being injured by way of electric shock, and the
Defendant is accordingly not liable for any loss or damages
suffered by the Plaintiff.
Alternatively, and in the event of it being found that the
Defendant is not absolved from liability by virtue of the principle
of volenti non fit iniuria as detailed in paragraph 6.2 to 6.4
above, then, in such event, the Defendant pleads that the cause
of
the electrical shock sustained by the Plaintiff was the result of
the sole negligence of the Plaintiff who was negligent
in one or
more or all of the following respects:
the Plaintiff failed to have due regard to training provided by
Defendant;
the Plaintiff failed to exercise due care in the circumstances;
the Plaintiff failed to avoid electrical shock when by the
exercise of reasonable care and skill he could and should have
done so;
6.5 Alternatively, and in the event of it being held that the
Defendant acted negligently as alleged or at all, then the Defendant
pleads that such negligence was neither the sole nor a contributory
cause of the electric shocks sustained by the Plaintiff.
Alternatively, and in the event of it being found that:
the Defendant is not absolved from liability by virtue of the
principle of volenti non fit iniuria as detailed in paragraph 6.2
to 6.4 above;
the Defendant owed the legal duty alleged in paragraph 7 of the
Particulars of Claim (which is denied);
the Defendant was negligent as alleged or at all (which is
denied); and
the Defendant’s negligence caused the electric shock
then, in such event, the
Defendant pleads that the electrical shock sustained by the Plaintiff
was caused as a result of the joint
negligence of the Defendant and
the Plaintiff, the Plaintiff having been negligent in one or more or
all of the respects as set
out in paragraph 6.3 above.
”
The significance of the amended
plea is that it introduced a plea of
volenti
non fit iniuria
.
COMMON CAUSE ISSUES
[5] The following facts are either common cause or not seriously
disputed:
That the plaintiff was shocked by high voltage electric current in
the live chamber of the defendant on 14 July 2006 and sustained
injuries, as he alleges in paras 3 to 5 of the particulars of
claim;
That the high voltage yard and
chamber where the incident occurred was under the control of the
defendant, in particular under
the control and supervision of Mr J
J Fourie (“
Fourie
”),
the defendant’s principal technical official;
That on the date of the
incident, the plaintiff and a co-worker, Mr M N Msibi (“
Msibi
”),
were performing certain duties in the control room outside the high
voltage yard. They were employed by an independent
contractor,
i.e. Phakema Electrical and Communications Services CC. That the
plaintiff and Msibi were performing such duties
in the control room
from Monday 10 July 2006, until the day of the incident, Friday 14
July 2006;
That the defendant is an
undertaker as envisaged in section 26 of the Electricity Act, No 41
of 1987 (“
the
Electricity Act
”).
[6] The Electricity Act came into operation on 1/11/1987. Section
26 thereof provides:
“
26.
Liability of undertaker for damage or injury.–
In
any civil proceedings against an undertaker arising out of damage or
injury caused by induction or electrolysis or in any other
manner by
means of electricity generated or transmitted by or leaking from the
plant or machinery of any undertaker, such damage
or injury shall be
presumed to have been caused by the negligence of the undertaker,
unless the contrary is proved.
”
It is plain from this provision
that the
onus
rests on the defendant to prove on a balance of probabilities that it
was not negligent, or if it was, that there was no causal
connection
between such negligence and the injuries sustained by the plaintiff.
Further, in the context of the present matter,
that the plaintiff was
the author of his own misfortune.
LOCATION OF INCIDENT
[7] It is necessary to set out
more fully the exact location where the incident occurred prior to
dealing with the evidence. The
layout, as depicted on the
photographs taken by both parties after the incident and shortly
before the trial respectively, is not
in dispute.
Arcelor Mittal manufactures
still from raw material. The substation in question is one of six
substations and situated inside
the works between plants. In order
to gain access to the substation in question, prior arrangement
with Arcelor Mittal was
required, accompanied by a training
programme at security checkpoints, including the initial stage of
watching a video on safety.
Thereafter an access card was issued.
The infrastructure on the premises includes medical facilities with
a full ambulance
service and a fire department. These medical
facilities are a short distance away from the block house and were
operational
on the day of the incident.
The high voltage yard as
depicted on the photographs, is enclosed by light blue fencing.
The fencing encloses the entire substation
right round the
substation with the same height and the same barbed wire fence on
top. There were a total of three gates in
place leading to the
substation. To the right of the last gate on the right, is
situated the control room in which the plaintiff
and his
subordinate colleague, Msibi, performed their duties in the week
leading to the incident. The control room is a face-brick
construction which is essentially outside the fenced area on the
photographs. There is no access from the control room into
the high
voltage yard on the corrugated iron fencing. Around the high
voltage yard is a five-in-one label warning sign. The
warning sign
consists of five labels printed on one sheet routinely used on
substation doors and gates. The heading of the
warning sign, which
also includes the isiZulu language, is “
SUBSTATION
”.
It includes the following: “
Unauthorised
Entrance Prohibited
”.
“
Warning, all
unauthorised persons are prohibited from handling or interfering
with electrical Apparatus
”.
There is a heading which reads: “
Electrical
Shock, Treatment, Immediate Action Is Essential
”.
It is not in dispute that all these warning signs were in place at
the time of the incident under discussion. Exhibit
“D4”
shows the closest gate to the control room referred to earlier.
Exhibit “D4” depicts the closest
gates to the control
room. The two other gates are to the left from the center, both
fitted with similar warning labels.
Besides the three gates, there
is another gate at the back of the brick substation, and the fifth
gate round the corner, all
of the same size leading to the high
voltage yard. Exhibit “D8” shows not only the
corrugated fencing around the
substation but also the two front
doors of the south block house live chamber. Exhibit “D23”
depicts the block
house and the two blue doors on the first floor,
as well as about seven doors on the ground floor, facing into the
high voltage
yard. A clearer view of the high voltage yard is on
Exhibit “D31”, which shows the south block house in
which
the live chamber is situated on the first floor. It has a
ground level floor as well. The live chamber is in the south block
house. To the right of the south block house is a north block
house. The latter was decommissioned prior to the incident
under
discussion. The incident occurred in the south block house. The
two doors on the first floor of the south block house
housing the
live chamber, displaying warning signs which were in place on the
day of the incident. Inside the live chamber
has one passage with
a mirror image of the same passage on the opposite side. Access to
the mirror image passage, and the
inside of the south block house
from the opposite side is impossible from the outside. In
photograph “D68” is
shown what was found after the
incident. That is that the buzz bar floor was partly dismantled
and the white base dropper
from the buzz bar down was removed. In
addition, some of the buzz bars on top were removed with some flash
marks on the earth
structure. Exhibit “D68” also shows
two horizontal strips of wood which served as barrier boards that
restrict
the approach or accidental approach to the live high
voltage equipment.
The photographs show that the
south block house on the upper level in which the live chamber is
housed, and where the incident
in question occurred, has two doors
on the front side, as depicted on Exhibit “D33”. There
are about four doors
on the ground level to the east of the block
house. These doors are normally kept locked, as was the case on
the day of the
incident. The two blue doors on the upper level of
the south block house leading into the live chamber, are locked
only from
the inside using a bolted type of sliding lock. These
doors do not have locks on the outside but the sliding bolted lock,
just like a bar which is pushed physically from the inside into the
lock. Indeed, photograph “D54” properly describes
the
hole through which the bolt can be moved to ensure that the door is
properly locked. Photograph “C22” better
shows the
bolt on the door which can be slipped into the hole. This bolt
mechanism applies equally to each door of the doors
on the south
block house in which the live chamber is located. The two doors on
the opposite side of the south block house,
namely the northern
side, as shown on photograph “D44”, are locked
differently with a coded lock from the inside.
The south block house was still
live at the time of the incident as it was on standby in case
something happened that could
be a switch back onto the buzz bar.
In fact, both levels of the floors on the south block house were
live. On the other hand,
the north block house was completely
decommissioned with earths on the buzz bar. The defendant’s
Protection Specialist,
Mr Barry Lesley (“
Lesley
”)
testified that in spite of the photographs showing two doors on the
first level of the south block house, there is
in fact only one
door, namely no. 1 buzz bar. There are two buzz bars. The one on
the left-hand side is buzz bar no. 2 which
is in operation whilst
the buzz bar no. 1, where the photographs were taken, is where the
plaintiff was injured. This is where
the flash occurred.
Prior to the incident, the
defendant took a decision to decommission the substation. The
process began in 2004. The project
involved replacing transformers
which supplied the block houses with new ones. The new transformers
supplied power through
the ground floor of the block house, and not
to the upper level floor of the block house anymore. The supply
of power became
through the one cubicle on the ground floor. The
rest of the cubicles became redundant. The upper level of the
block house
became unoperational. The whole project had to be
completed in 2008. The south block house, where the plaintiff was
injured,
was also later, about three months after the incident,
decommissioned. The north block house at the time of the incident
had
about eight cubicles on the ground level, of which only two
were in use. The doors on the north block house were locked after
the decommission because of the copper that was inside. The south
block house has the same number of blue doors and cubicles
as the
north block house. One of the cubicles on the south block house
had a fire and burnt out prior to the incident. However,
the door
to that cubicle was closed, but if the tunnel was earthed, it stood
open. Under normal circumstances, the door would
be locked because
of the copper stored inside.
7.6 It is not in dispute that
the physical contact which the plaintiff had on the day of the
incident in the live chamber on the
south block house was live
copper. It is live copper with respect to earth or live with respect
to another phase. In this regard,
Lesley testified that it was
contact with 11 KV measured between red, white and blue but between
phases and the ground. It is
also about 7 KV, which is 7 000 Volts.
The distance from the control room where the plaintiff and Msibi
worked is about 5 meters.
The south block house on the upper level
is about 30/40 meters from the control room. The south block house
is about 8 meters
in length and about 4 meters wide plus the passage
inside the live chamber is about 1½ meters wide and the inside
of the
cubicle is 600 mm in depth.
THE EVIDENCE
[8] I deal with the evidence.
Msibi, the co-worker of the plaintiff, testified. He qualified as an
electrician in 1999, and started
working with the plaintiff at
Phakema Electrical and Communications Services CC in 2005. It is
common cause that Msibi worked
on a daily basis with the plaintiff
from the Monday, leading to the Friday of the incident. The
plaintiff was his senior. They
worked in the control room on the
defendant’s premises. Msibi was the only person present in the
vicinity where the plaintiff
sustained the injuries under discussion.
The control room was outside the high voltage yard with
gates-controlled access. The
yard housed various structures of the
defendant referred to by Msibi as CT’s structures. From 10
July 2006, leading to the
incident, Msibi observed that Fourie was in
control, unlocking the gates to the yard, and locking the gates after
work. Msibi
also observed other workers painting structures in the
yard. The painters used one of the rooms in the yard for their lunch
as
a cloakroom.
[9] Msibi testified that on the
day of the incident, i.e. Friday 14 July 2006, he and the plaintiff
were working in the control
room, as usual installing RTU panels. It
was about midday. They were wrapping up the day’s work.
Fourie had left at about
11h00. The painters in the yard had also
left. The plaintiff left the control room in order to place some
equipment in the employer’s
bakkie, parked outside in the yard.
When the plaintiff did not return after about 5 minutes, Msibi also
left the control room
to investigate. The gate of the yard was open.
Msibi found the plaintiff lying on the ground next to the steel
stairs leading
from the ground floor where the control room was
situated, to the first floor, where the live chamber was, as depicted
on photograph
C12. The plaintiff’s bundle of photographs of
the substation consists of some 28 photographs, Exhibit “C”,
taken
shortly after the incident. The plaintiff was injured. He had
singes and burnt marks on his knee and arm. Msibi helped the
plaintiff
to drive the bakkie from the premises up to between
Meyerton and Everite. From this point, the plaintiff was taken by his
employer,
Tom Venter, to the Alberton Hospital.
[10] In cross-examination, Msibi
confirmed the following: On their first assignment to the particular
control room, on the Monday
morning and subsequent dates, they went
through two security check points; at the first security they were
shown a video on the
layout of the place, including the control room;
the video also dealt with safety issues; at the second security check
point their
bakkie was merely inspected; they also had a map of the
defendant’s premises, provided by the employer; on each day,
Fourie
opened the door to the control room; on each day, prior to
commencing work in the control room, the plaintiff, as senior,
explained
to Msibi about the risk assignment and possible dangers
which could occur in the high voltage yard; the explanation covered
issues
such as the closing of tranches after use; not to touch any
switches in the panels; and that their assignment on the premises was
confined to working in the control room only, and nowhere else; and
to ensure that cables to be cut were dead. The safety explanations
given by the plaintiff were based on the defendant’s document
entitled: “
Eskom’s
Workmen’s Register Risk Assessment Form
”,
Exhibit “A154”. The form was then completed by the
plaintiff and signed by Msibi and the plaintiff on each
morning and
after working. On each day, that is the Monday 10 July 2006, to the
Thursday, 13 July 2006, the plaintiff locked the
control room after
work. Msibi conceded that the control room in which he and the
plaintiff worked was in fact outside of the
high voltage yard, and
that their specific assignment excluded working inside the high
voltage yard.
[11] Msibi also confirmed in
cross-examination that the same safety explanations were given by the
plaintiff on their arrival at
the control room on the day of the
incident. This was about 09h32. The risk assignment form was
similarly completed and signed.
The plaintiff unlocked the control
room. The gate nearest to the control room was already open. Msibi
saw Fourie enter the control
room at about 11h00 and spoke about
fishing before finally leaving. When he left the control room to
look for the plaintiff, Msibi
found the plaintiff lying to the left
of the wall as depicted on photographs D29 and D30, that is on the
ground level with several
steel structures or pylons. It is below
the first floor of the south block house in which the live chamber
was situated. It appears
that the plaintiff was found lying on the
ground next to the pylon nearest to the south block house. Once
Msibi had located the
plaintiff, he refreshed him with water. Msibi
locked the control room or closed it. He could not remember whether
he locked the
gate. They drove out of the premises, through the
security check points. Msibi said he never thought of reporting the
incident
to the security personnel or any other person on the massive
Arcelor Mittal premises. There was also no conversation about the
incident with the plaintiff.
[12] It is appropriate to refer
to the contents of “
Eskom
Workers’ Register/Risk Assessment Form
”
which Msibi confirmed or signed by him and the plaintiff on each day
prior to commencing work in the control room. These
are Exhibits
“A154” to “A161”, covering the period 10 July
2006 to 14 July 2006. The inscriptions made
by the plaintiff are
almost identical for each of the five days. The form consists of
three printed questions on the left column,
against which the
plaintiff had to complete the relevant answers. The first question
is, “
What is the
scope of the work?
”
The answer written by the plaintiff was, “
Replace
RTU and Page Frame
.”
The second question reads: “
What
risk can be identified?
”
The plaintiff wrote: “
Work
in live control room
.”
The third question reads: “
What
steps are to be taken to minimise identified risks?
”
The plaintiff wrote: “
Don’t
touch or operate panels.
Make double sure
cables to be cut are dead
.”
The final question reads: “
State
the Names of the workers with whom the above task and risk have been
discussed?
” The
answer provided the names of the plaintiff and Msibi, their ID Nos
and signatures. The form ends with a declaration
at the bottom, in
which the plaintiff declared: “
…
that the above stated risk had been discussed with all personnel
involved in the scope of the work and that the steps to
be taken to
minimise the risk are understood by all, also that the nature and the
location of this work/activity as well as all
the precautions,
special conditions and dangers involved including the right to
refuse, have been explained
”.
When he testified, the plaintiff confirmed that he completed the
form daily.
[13] When put to him in
cross-examination, that Fourie locked the gate alleged to have been
open, when Fourie left on Friday 14
July 2006 at about 11h00, Msibi’s
response was unclear. Msibi also did not know or challenge the
version that the painting
contractors had a gate opened for them
since they had their own lock for that other gate. Msibi could also
not remember or deny
the version that at the time of the incident,
the fences to the high voltage yard on the outside displayed various
warning signs
as depicted on photograph D11. The close-up
photographs of photographs D1, D2 and D3, displayed
inter
alia
, the following:
“
Substation
”.
“
Unauthorised
Entrance Prohibited
”,
“
Warning –
All unauthorised persons are prohibited handling or interfering with
electrical apparatus
”.
The warnings were also in Afrikaans and isiZulu. One warning sign
discernible, contains the heading: “
Electrical
Shock Treatment Immediate Action is Essential
”.
When confronted with the contents of his statement, Exhibit “A148”,
made after the incident, Msibi could not
account for certain
discrepancies between his evidence and the statement. It is indeed
clear from his evidence that Msibi did
not witness how the plaintiff
was injured.
[14] The plaintiff, aged 32,
testified about the various courses and training he received from the
defendant prior to the incident
in question. These include First
Aid, Basic Fire Fighting and more relevant, training in modules 1 to
10 of the defendant’s
Operating Regulations for High Voltage
Systems. The latter regulations, attached to Exhibit “A49”
to “A111”
consist of some 62 pages, and deal with various
aspects of electricity. The plaintiff confirmed, in particular, that
he received
training in a document entitled “
Summary
of Eskom’s Modules 1 to 10
”,
as set out in Exhibit “A41-48”. He referred to
Regulation 3.0.11 on Exhibit “A42”, which reads:
“
Under
no circumstances may you leave a live chamber/prohibited/restricted
area unlocked when it is unattended, by looking a little
further, you
may lock the door/gate while you are working or operating inside the
area … However, you must guard against
unauthorised persons
entering the area at will, while the door/gate is unlocked.
”
Having completed Modules 1 to 10,
the plaintiff regarded himself as “
an
authorised person
”.
In this regard Regulation 5(2) of the Modules 1 to 10 provides as
follows:
“
No
person other than a person authorised thereto by the user shall
enter, or be required or permitted by the user to enter, premises
housing suites gear or transformers unless all conductors are
insulated against inadvertent contact or are screened off: Provided
that the person so authorised may be accompanied by any other person
acting under his control.
”
As a result, the plaintiff
contended that he was entitled to perform operations at the
substation in emergency situations.
[15] The plaintiff confirmed
several of the non-contentious aspects on which Msibi testified.
These include that they started
work at that particular substation of
the defendant at the Arcelor Mittal Vanderbijlpark, premises on the
Monday 10 July 2006 to
the Friday 14 July 2006. Further that their
duties consisted of replacing ratchets (ratels), and IDF cables and
replacing RTU’s,
and replacing old panels. The work had to be
performed in the control room designated. Access to the control room
and the high
voltage yard was under the control of Fourie. There
were three gates to the yard. There were other contractors on the
premises
in that particular week.
[16] The plaintiff testified
that he was aware of the contents of the block house depicted on
photographs C12 to C14. The ground
floor, according to him,
contained circuit breakers (brekers) which led to metering points on
the first floor of the block house.
The circuit breakers are used to
switch electricity on and off. The plaintiff testified that he was
under the impression that
the block house was in disuse as the
right-hand side door of the first floor stood open. In addition, the
doors on the ground
floor of the block house were open and some of
the rooms looked burnt out. The painters in the yard used the rooms
as change rooms
and during lunch time.
[17] Photograph C12 shows the
steel stairs leading to the first floor. The first floor, in turn,
shows two blue doors with warning
signs. One door is on the left,
whilst the other is on the right-hand side of the south block house.
The two doors lead into
the live chamber. On the opposite side of
the chamber is an entrance according to Fourie, which was kept
locked. The doors to
the chamber were locked from inside. It is
indeed through the right-hand side of the first floor that the
plaintiff proceeded into
the chamber and got injured. This is a door
which the plaintiff alleged stood open and prompted his visit there
on the fateful
date.
[18] The plaintiff said he
arrived at the control room, situated outside the yard, on 14 July
2006. As usual, he completed the
Risk Assessment with Msibi. Fourie
came to him in the control room at about 11h00 and said that he was
going fishing. Fourie
left and never returned. Between 12h00 and
13h00, the work for the day was completed. The plaintiff completed
the Risk Assessment
Form with Msibi. The plaintiff left the control
room to fetch a label from his company’s bakkie parked outside.
On his way,
the plaintiff observed that the main gate near the
control room was open. He decided to walk into the yard of the
substation.
This, he said, was to ensure that all persons had
vacated, that it was safe, and in order to lock the gate. The
decision was
based on his knowledge of the regulations that the high
voltage yard must not be unattended. As he entered the yard he
observed,
as stated above, that the right-hand side door to the live
chamber of the south block on the first floor, stood open. He saw no
other persons. He went to the steel stairs to open the door. At all
times he believed that the block house was not in use. He
entered
the live chamber. He observed parts of the equipment on the floor. He
also thought that the block house was in the process
of being
decommissioned.
[19] The plaintiff identified
the location in photograph C1A as the place where he sustained the
injuries. Where the metal panel
appeared stripped apart, and the
buzz bars conveying electricity current, whilst photograph C1B showed
flash marks. The bottom
part of the metal panel is on photograph
C3A, whilst C3B depicted the loose portions lying on the floor. The
metal rods on the
same photograph were copper buzz bars of some 4/5
meters long. He identified photograph C1B as the place where his
clothes came
into contact with earthing. He assumed that since the
equipment appeared to have been stripped apart, it was dead.
Significantly,
the plaintiff testified that he did not know exactly
what had happened next after he made the above observations and
assumptions.
He said he must have touched something in the live
chamber. In this regard, his evidence-in-chief is: “
Nee,
ek weet nie definitief wat gebeur het nie. Ek het na die ondersoeke
wat ek gesien het, kan ek aflei soos wat die dokters ook
aan my
genoem het met my beserings dat dit het ge-flash na my knieë toe
en dit is waar die current ingevloei het. So dit
het na my toe
gespring nog voor ek ‘n rede kon hê om eers aan iets te
vat.
” He lost
consciousness, and when he came to, Msibi was busy with him on the
ground floor as testified by Msibi. It is not
in dispute that the
plaintiff and Msibi drove off the premises as described by Msibi.
[20] In cross-examination, the
plaintiff confirmed his
curriculum
vitae
and
qualifications as reflected in Exhibit “A21”, and that he
understood English and Afrikaans well. He commenced
employment with
Phakama Electrical and Communications Services CC in February 2004.
He was supervised by the Project Manager, Mr
Basil Basson. Before
that, he was however, working at Phakama for no salary during which
period he was initiated into the electricity
industry. He worked
under Basson until he obtained his ORHVS (Operating Regulations for
High Voltage Systems) qualification.
During his training, he was
taught about the defendant’s substations, the high voltage
yard, live chamber and block houses
etc. In September 2005, he
obtained a Course Certificate from the defendant showing that he had
successfully completed ORHVS for
Authorised Persons, covering 10
modules. The plaintiff also received further training from the
defendant, which covered aspects
such as Distribution Risk Management
Induction; Job Safety Analysis; Hazardous Task Identification;
Supervision, Warning Notices
and Prohibiting Signs; Handling of
Equipment etc. He confirmed that he was well acquainted with the
defendant’s Operating
Regulations for High Voltage Systems, and
the dangers of electricity in general.
[21] The plaintiff was
cross-examined closely on Exhibit “A30”, entitled,
“
Eskom’s
High Voltage Authorisation for Distribution
”
issued to him on 1 February 2006. In order to appreciate properly
the evidence in cross-examination, the relevant portions
of the
documents are reproduced as follows:
“
1.60
Responsible person restricted to: (eg line work only, cable work
only etc.) SUBSTATION construction work UP TO AND INCLUDING
132 KV
EXCLUDING BLOCK HOUSE SUBSTATION’S 3.0.1.2 ACCESS to
Restricted-prohibited area (if restricted state which areas/chamber),
prohibited area under work permit up to and including 132KV Excluding
Block Houses, 3.0.3 Supervised persons in Prohibited/Restricted
Areas
(if restricted state which areas and/or nature of work): Prohibited
area and level Only if above ground level Barricaded
area Only UP to
and including 132 KV Excluding Block House Substations.
”
The plaintiff confirmed that he
was aware of the contents and restrictions imposed by the
authorisation. He further confirmed that
he was injured at a block
house where he was not authorised to work. The plaintiff also
confirmed that, through his employer, Phekama
Electrical and
Communications Services CC, he was issued with a certificate styled
“
Health and
Safety Representative
”,
on 1/12/2005. In terms of this designation, his duties included,
“
receiving the
effectiveness of the health and safety measures
”
assessing the potential hazards to the health and safety of
employees. Similarly, on 1 December 2005, the plaintiff was
appointed as Construction Supervisor for various of the defendant’s
sites. The certificate reads:
“
In
terms of this appointment you are required to ensure that all
construction work performed under your supervision is carried out
as
follows:
‘
By
persons suitably trained and competent to do such work; that all
persons are aware and understood the hazards attached to the
work
being carried out; that the required risk assessments are carried
out,
’
etc.
”
The plaintiff completed the Risk Assessment Form with Msibi from
Monday 10 July 2006 to Friday 14 July 2006 as testified by Msibi.
[22] In regard to the Friday of
the incident, the plaintiff testified in cross-examination that on
arrival at the substation, he
parked the company bakkie at the open
gate nearest to the control room. He denied that the voltage yard
had three gates. Like
Msibi, he was adamant that while they were
working in the control room, Fourie visited them at about 11h00. On
his version, Fourie
said he was going fishing. It is unnecessary to
repeat all the evidence in cross-examination leading to the actual
incident. In
short, the plaintiff conceded that he knew that he was
not supposed to enter the high voltage yard. Before knocking off, he
left
Msibi in the control room. He observed that the one gate was
open. The painting contractors had left. He decided to enter the
high voltage chamber in order to ensure that no other workers were on
the premises since it was the start of the weekend. He did
not think
of inviting Msibi to accompany him. He entered the high voltage yard
through the gate on the right-hand side and walked
round the wall as
depicted on photograph D20. The brick wall is better depicted in
photograph D30. He turned right after the
wall towards the south
block house. He observed that the right-hand side door on the first
floor of the south block house was open,
about two-thirds open. This
door is best visible on photograph D32. The plaintiff proceeded up
to the steel stairs towards the
open door leading into the live
chamber. He conceded that at the time he knew full well that he was
prohibited from entering the
block house and live chamber. He did not
see or scream for anybody possibly in the vicinity. The live chamber
was in darkness.
He observed certain copper equipment and metering
panels lying on the floor as he testified in evidence-in-chief.
However, the
equipment was not in his path since he did not proceed
any further. He conceded that some of the copper equipment therein
had
some value. He then turned back to exit the live chamber.
However, he did not remember whether he turned to the left or not. It
was at this stage, he thought he felt a flash to his knees. However,
he was unsure as to what exactly happened. He clearly was
shocked by
live electricity. He said he regained consciousness on the ground
floor where Msibi was busy pouring water over him
in the yard. He
was aware of the warning signs on the doors of the live chamber. He
decided to drive to hospital in Alberton
from the scene. He did not
know of the medical facilities available on the premises of Arcelor
Mittal. He also did not think of
informing the security personnel of
the incident at the check points as he drove away. On arrival at the
hospital, he was taken
to the trauma unit where he was prepared for
theatre. He was immediately operated upon. It is not in dispute that
as a result
of the electric shock in the live chamber, the plaintiff
sustained serious bodily injuries, including burns to his right hand
and
arm, as well as his left knee and right upper leg.
[23] The plaintiff was
confronted with the contents of his hospital record, Exhibit “A165”,
dated 14 July 2006. Next
to the, “
Description
of Accident
”
column, there is a notation, “
He
was busy with pulling in cables and was electrocuted
”.
He could not explain, but averred that he was “
installing
RTU cables in the control room
”.
The plaintiff was also confronted with the contents of the
Preliminary Incident Report by his employer, Exhibit “A1”,
under the heading, “
Description
of loss or near miss
”,
the following was noted: “
Mr
H J Pitzer sustained Electrical shock and burns in the H.V. Yard, at
Vanderbijlpark 88Kv Substation, located in the Mittal Steel
Complex
at Vanderbijlpark
”.
In the same report, the following is noted: “
As
there were no eyewitnesses, and Mr H J Pitzer cannot remember what
happened, it is unclear how the incident occurred. The workmen
were
installing D20 supervisory equipment in the control room of the
substation. Under the scope of work they did not have any
work to do
in the H.V. Yard and thus it was not required to go into the yard
where the incident occurred.
”
The report is dated 17 July 2006. The plaintiff could not remember
the latter date. He could not remember how he was
shocked. The
plaintiff also could not remember a statement he made subsequently to
a Mr Basson (the Incident Investigation/Safety
Officer) of his
employer, on 14 July 2006. The statement is contained in Exhibit
“A149”. However, after the trial
was adjourned for the
weekend, the plaintiff confirmed that he had since studied the
statement. The cross-examination on the contents
of the statement
revealed certain discrepancies between his evidence and the statement
which the plaintiff attempted to explain
unsuccessfully. When he
observed the open door to the live chamber, and based on his
experience and training, he thought the chamber
was dead. The main
reason why he entered the chamber was to ensure that no one was left
inside. When confronted with the contents
of the statement saying,
“
I went inside to
determine what was going on
”,
the plaintiff replied that he did not word the statement, but was
relating the incident to his employer even though the
statement
contains his name at the bottom. The statement went on to state
that, “
I noticed
that a part of another metering panel buzz bar volts were already
removed
”, the
equipment was lying on the floor. The plaintiff was confronted
further with the following contents of the statement,
“
The
mistake I made was to feel if it was loose and that is when the
incident occurred
”.
When asked if this is what in fact happened, the plaintiff responded
as follows: “
Nee,
ek het gesê hierdie verklaring wanneer dit afgeneem was, het ek
aangeneem ek moes in kontak gekom het met seer gekry
het en
ondersoeke later en waar ek beserings het, wys dit dat dit na my
knieë toe moes flash voordat ek aan iets kon vat.
”
Further cross-examination on this crucial aspect did not elicit any
comprehensive response when put to the plaintiff that
he in fact made
a mistake by deliberately touching the equipment to see if it was
loose, his response was: “
Dit
is al wat ek kan dink vir watter rede ek aan dit gevat het as ek aan
dit gevat het.
”
He did not think that the equipment would contain residual electric
current. He had previously entered a similar live chamber
accompanied
by somebody. The plaintiff could not remember how he landed on the
ground floor of the high voltage yard after he was
shocked on the
first floor of the south block house. The last two paragraphs of the
statement are reproduced later in this judgment.
When asked if on
regaining consciousness on the way out of the premises whether he
thought that it appeared suspicious that somebody
was busy stripping
where the incident occurred, the plaintiff said it was possible. He
denied that he rushed to the Alberton Hospital
since he was afraid to
report the incident to the security personnel or anybody else on the
scene. He conceded readily that he
was not permitted to be in the
live chamber on the first floor of the south block where the incident
occurred.
[24] In re-examination, the
plaintiff essentially advanced two contentions. First, that he had
no intention at all of removing
from the live chamber the property of
the defendant. Secondly, that based on his status as an authorised
person, he was entitled
to be at the live chamber, and that his
concern about the open door leading into the chamber was justified.
[25] Fourie, the principal
technical official of the defendant at the time, testified. He
worked at the defendant’s substation
in question on the
premises of Arcelor Mittal since December 1999. Fourie was in charge
of the substation in question on 14 July
2006.
[26] At the time of the
incident, Fourie possessed a substation master key which could open
any type of lock in the substation
and high voltage yard. The gate
closest to the control room, as depicted on Exhibit “D4”
was locked with a private
lock which belonged to the painting
contractors.
[27] Fourie testified that on
the day of the incident he was on duty at the substation in the high
voltage yard from about 08h15.
He was due to proceed on leave on
that day for about a week. On his arrival at work, the contractor
called Oom Chris and his crew
of between 10/12 persons was already on
site. This team was repainting the steel works inside the high
voltage yard as well as
the fencing around. Oom Chris and his team
entered the high voltage yard through Gate No. 3, i.e. the gate
furthest from the control
room (the plaintiff and Misib worked in the
control room). Oom Chris and his team had a work permit that allowed
them to perform
duties on the ground level only of the block house.
[28] Fourie testified that at
about 11h00 that morning and after Oom Chris had paid his workers, he
left the high voltage yard
through Gate No. 3, the gate closest to
the control room was closed. He did not see or speak to the
plaintiff or Msibi as alleged
by the plaintiff. The south block
house was still alive as it was on standby in case something happened
that could be a switch
back onto its buzz bar. Both levels of the
floors of the south block house were alive. On the other hand, the
north block house
was completely decommissioned, with earths on the
buzz bar. This was the reason why Oom Chris and his team were allowed
to use
the rooms on the ground level as change rooms.
[29] Fourie conceded that a
permit system was in place for each piece of job to be done in the
high voltage yard or block houses.
After the incident he was still
on leave. However, before, during and after the incident, Fourie was
in charge of the substation
as principal technical official. Fourie
disagreed that if a door is not closed and locked at the substation,
any person can assume
that the area was not live. In his view, if
somebody found a door open, he should follow proper channels and let
Eskom know, and
Eskom must send somebody to investigate. There is a
telephone inside the control room for this purpose. The plaintiff,
although
an authorised person, in terms of Eskom’s Regulations,
was not allowed to enter, open gates or doors unless he had a key or
permit to perform some function. The plaintiff could rather secure
open places from the outside but not to enter at all. Fourie,
however, later conceded that as an authorised person, the plaintiff
could secure open places when they should be locked.
[30] Fourie could however, not
recall if the door on the first level of the south block house stood
open on the day of the incident,
as alleged by the plaintiff. All the
rooms on the bottom floor of the south block house were alive, as far
as Fourie could remember.
The whole block house was in the process
of being decommissioned. There were two buzz bars in the south block
house. One of the
buzz bars is on the one side of the passage, as
reflected in photograph “D52”, and the other buzz bar, on
the opposite
side. This is the area where the plaintiff was injured.
The equipment was physically dismantled during the decommission.
[31] Although he could not
remember the exact date, according to Fourie, the decommissioning of
the south block house, which lasted
one day, involved the buzz bars,
the equipment on the first floor, cables, breakers, meters, and
transformers.
[32] For some strange reason,
Fourie testified in cross-examination that he could not remember
meeting the plaintiff and Msibi
in the control room during the week
of 10 July 2006, leading up to the incident on 14 July 2006.
However, he conceded that if
they were working there in the control
room, he had to see them. Fourie denied that the reason why he could
not remember the presence
of the plaintiff and Msibi, especially on
14 July 2006, is that he entered the gate closest to the control
room, forgot to close
it, and that the plaintiff later entered the
high voltage yard through the same gate which led to the plaintiff’s
injuries.
[33] Fourie was cross-examined
closely on the position of the gates to the high voltage yard in
general, and in particular on the
day of the incident. His answers
came to this. That in terms of the applicable regulations, whenever
there was an operation,
the gates may be left unlocked. When there
is no work underway, the gates should be closed and also locked.
When he left the
yard on the day of the incident at about 11h00, he
left behind the painting contractors under Oom Chris. The latter was
the last
person responsible who had authority over the one gate for
which his own lock was provided. The question of the circumstances
under which Fourie and Eskom issued a key to Oom Chris truly does not
assist in resolving the disputes in this matter.
[34] In regard to the sliding
bolt lock used to lock the front door (the right-hand side door) of
the south block house referred
to earlier, Fourie explained that it
was a thick bolt. The bolt fits in the hole as depicted on
photograph “D54”.
The hole was drilled through the angle
iron into the brick wall. If the bolt is pushed, and the door is
closed properly, the
door becomes strongly secured. The bolt cannot
be opened from the inside. It was therefore improbable, according to
Fourie, that
the door could have been blown open by a strong
rainstorm. Fourie testified that on investigation, and approximately
two weeks
before the incident, there was an attempt to steal the buzz
bars still in use in the south block house. Fourie agreed that it was
possible that on the day of the incident, the plaintiff observed the
top right-hand side door of the south block house was open,
and went
there. He said it was also possible that on arrival at the open
door, the plaintiff observed some buzz bars and equipment
lying on
the floor. Fourie was however, emphatic that it was not possible that
the door in question was not properly locked prior
to the incident.
The reason for this is that ordinarily during operations, two persons
were required. One person would remain
outside the door to ensure the
safety of the person entering the block house doing the work. It was
therefore unlikely that two
persons would forget to lock the door.
However, all of these answers given by Fourie were based on
speculative questions. Fourie
said that after he left the premises
at about 11h00 on the day of the incident, Oom Chris and his
contractors had to lock up the
gate to the high voltage yard. Fourie
did not unlock the control room on the morning of the incident.
Fourie testified in re-examination
that he had no responsibility
towards any person or persons working in the control room.
[35] Lesley also testified for
the defendant. He came to hear of the incident under discussion on
17 July 2006, and commenced
his investigation. The investigation was
preceded by a flash report. Lesley and his colleague went to the
substation where the
plaintiff was injured. No flash over or flash
marks, open marks could be found. This was on 1 August 2006. The
right-hand side
door on the top level of the south block house (the
door used by the plaintiff) was seen open, about 400/500 open. On
closer investigation,
Lesley and his colleague, Hennie Jordaan, found
that the buzz bars were stripped. Copper buzz bars were lying on the
floor. There
were flash marks on the second tunnel from the door.
Lesley compiled a report, Exhibit “B14”.
[36] Lesley testified further
that when he climbed the steel stairs from the ground level into the
south block chamber, he assumed
that everything was alive. He took
photographs of the live chamber. There were two or three flash marks.
There was one on the
angle iron running across, showing particles of
clothing on the angle iron. On the top, on the actual riser coming
to the buzz
bar, was another flash mark. The two horizontal wooden
slats called barrier boards. They were painted in red because it is
a dangerous
area. Lesley was of the view that there was definitely
contact with live apparatus where the flash marks appear. In simple
terms,
it was a test making contact between a live apparatus and
ground. On the angle bar, the contact still showed residue of
clothing.
The investigation established, without any doubt, that
there was physical contact between a person and the copper bar.
There
was no substantial fault or protraction operation as the person
who made contact would have been thrown away from the apparatus,
and
the fault would have cleared. There was also no trip. If this
occurred, signals would have gone through the control room at
the
time of the incident.
[37] In cross-examination,
Lesley conceded that his report could be incorrect where it refers to
two doors being open. He recalled
that on his inspection, it was “
a
very windy blustering day, and I distinctly remembered the right-hand
door being open and that is why we went up there and that
is why I
took photographs
”.
Lesley testified further that at buzz bar No. 1, where the plaintiff
sustained injuries, the buzz bars were being stripped,
no current
could flow through the buzz bars. The only current that would have
flown was from the actual link that came from the
bottom to ground.
The buzz bars are the copper conductors at the top. They were not in
service. The current came from the link,
to the circuit breakers, and
then to the customer. A flash mark could be anything that is burnt
with carbon or with metal splatter,
and be contracted in the 88KV
yard. No flash marks or burnt marks were found in the 88KV yard.
THE LEGAL PRINCIPLES
[38] I consider some legal
principles applicable to the issue of negligence based on the above
evidence. The classical test for
negligence is found in
Kruger
v Coetzee
1966 (2) SA
428
(A) at 430 where the Court held that the liability in delict
based on negligence will be established against a defendant if a
diligens paterfamilias
in the position of the defendant:
would foresee the reasonable possibility of his conduct injuring
another in his personal property and causing him patrimonial
loss;
would take reasonable steps to
guard against such occurrence, and
that the defendant failed to take such steps.
In dealing with liability based
on a negligent omission, as opposed to negligence
per
se
, Nugent JA in
Minister of Safety and
Security v Van Duivenboden
[2002] 3 All SA 741
(SCA), at para [12] said:
“
Where
the law recognises the existence of a legal duty it does not follow
that an omission will necessarily attract liability –
it will
attract liability only if the omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this court in Kruger v Coetzee, namely,
whether a reasonable person in the position of the defendant
would
not only have foreseen the harm but would also have acted to avert
it.
”
More pertinent to the present
matter, and from which I intend to quote liberally, arose in
Kruger
v Carlton Paper of South Africa
(Pty) Ltd
2002 (2) SA 335
(SCA). The appellant was an experienced and
qualified maintenance electrician who sustained injuries when he came
into contact
with a live terminal in an enclosed transformer owned by
the respondent. The crisp issue before the Court was should the
respondent
have foreseen the possibility of harm to the appellant,
and if so, did the respondent take reasonable steps to avoid such
harm.
In the particular circumstances of that case, the narrowed
issue was whether or not reasonable steps would include insulating
the terminal so as to avoid such harm. In para [9] of the judgment
the issue was defined ultimately as follows:
“
During
argument before us it became clear that the question for decision had
narrowed to whether the defendant ought reasonably
to have foreseen
the possibility of the plaintiff, a qualified and trained electrician
of experience, who was well aware of the
dangers of electricity,
coming into contact with the NEC terminal in the enclosure and
injuring himself, and whether the defendant
ought reasonably to have
taken steps to insulate the terminal.
”
Having satisfied itself as to the
nature of the enquiry, the Court, at para [11], turned to what steps
were taken to avoid the harm,
as follows:
“
There
can be no doubt that as a general possibility contact with the open
terminal was foreseeable and the defendant did indeed
take steps to
avoid such contact. The steps taken were the following:
The NEC was housed in an enclosure.
It was kept under lock and key and the keys were issued only to
electricians and an assistant, Phasake, who was allowed into the
enclosure only under supervision.
Only qualified electricians and assistant were allowed into the
enclosure.
A large sign was placed at the gate, warning of the dangers of
electrocution.
Certain ‘lockout’ (shut-down) procedures were put in
place and implemented.
Safety talks were held regularly to keep the workforce aware of
the dangers inherent in an electrically live environment.
Documentation was produced at
the trial as proof of the high premium placed by the company on
safety. The defendant’s commitment
to safety is reflected in
its health and safety policy document …
”
[39] I revert to the evidence in
this matter, bearing in mind the legal principles set out above. I
must hasten to state that
Msibi impressed as a simple and honest
witness. However, he did not witness how the plaintiff sustained his
injuries. This is
common cause.
[40] The gravamen of the
plaintiff’s particulars of claim is that the defendant failed
to prevent the plaintiff from not
gaining access to the live chamber.
However, his version is not without problems. He is a properly
qualified electrician, accompanied
by extensive training which he
received, not only from his employer, but also from the defendant, as
the evidence shows. In short,
he left the control room on the
fateful day, and went to his company vehicle parked outside. He saw
that no. 1 gate leading to
the high voltage yard was open. He decided
to lock the gate. He saw nobody in the yard. He wanted to make sure
that nobody else
was locked inside the yard since it was the
beginning of the weekend. In the process, the plaintiff observed
that the right-hand
side blue door of the south block house on the
upper level, was open. He decided to climb the steel stairs all the
way to the
upper level and to see if there was possibly anyone inside
the building. He entered the live chamber because he thought that
the
whole building was “
dead
”.
He saw some buzz bar material on the floor. That is the last he can
remember anything. He told the Court that he cannot
remember what he
touched. I pause here to question why the plaintiff, when he
observed the open door, did not rather phone the
defendant’s
offices or staff on the premises, or the security personnel at the
entrances. He did not shout or scream or
ask Msibi to accompany him.
This brings into question the plaintiff’s motives by
approaching and entering the live chamber
stealthily. In this regard,
it was argued on behalf of the defendant that on the probabilities
the plaintiff’s motives and/or
intention in the live chamber
was not to “
do
good
” for the
defendant. This, clearly in reference to the valuable copper stored
in the building. I am, however, unpersuaded
that the evidence in
this regard is conclusive.
[41] The above is however not
the end of the problems in the plaintiff’s version. As the
evidence shows, the plaintiff’s
original version mirrored in
the particulars of claim, and the plaintiff’s statement at p
149 of Exhibit “A”,
was that the plaintiff entered the
live chamber in the belief that the chamber in the south block house
was live. The contents
of the statement, with the portion that
reads, “
The
mistake I made was to feel if it was loose and that is when the
incident occurred,
”
was quoted earlier in this judgment. The plaintiff’s attempt
to disassociate himself from the version contained in
the statement
during cross-examination did not advance his case in any meaningful
manner, and was possibly disingenuous. As stated
earlier, the
version at trial is that the plaintiff believed that the live chamber
was entirely “
dead
”.
As a consequence, the defendant argued that the latter version is a
recent fabrication in order to escape the defence
of
volenti
non fit injuria
, and
to avoid the inference that the plaintiff’s motives for being
in the live chamber was
mala
fide
. What is of
critical importance to the Court based on the evidence, including the
admission by the plaintiff, and possibly decisive
of the case, is
that the plaintiff was not authorised, and was in fact prohibited
from entering the live chamber. This included
to access the chamber
through the open gate and the door. The plaintiff was not employed by
the defendant. His concerns about
the open gate and the open chamber
door in the knowledge that the high voltage yard is not to be left
open, and that he felt it
was his duty based on his training to lock
the door, are not satisfactorily explained. In fact, he had no
obligation in this regard.
The plaintiff did not act as a reasonable
qualified electrician with all his training and experience in the
circumstances of the
case. His training and qualification are borne
out by the documentation in Exhibit “A”, including his
curriculum vitae
,
his course certificates relating to O.R.H.V.S. (Operating Regulations
for High Voltage Systems) for Authorised Persons, as well
as a
description of the plaintiff at p 4 of Exhibit “A”. The
plaintiff admitted this description.
[42] The plaintiff was trained
as a responsible person. He was aware of the dangers involved in High
Voltage Yards and the live
chambers. These were clearly signposted
with prohibitory signs as shown in the various photographs depicting
the scene and the
block house. The plaintiff was indeed aware of the
restrictions of access applicable to him. On his version, and that of
Msibi,
his duties were confined to the control room, outside the yard
and the chamber.
[43] On the evidence, there are,
however, two mutually destructive versions in regard to the question
of the open gate. The test
in this regard was captured succinctly in
Mabona and Another v
Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 662C-F where Jones J said thus:
“
The
upshot is that I am faced with two conflicting versions, only one of
which can be correct. The onus is on each plaintiff to
prove on a
preponderance of probability that her version is the truth. This
onus is discharged if the plaintiff can show by credible
evidence
that her version is the more probable and acceptable version. The
credibility of the witnesses and the probability or
improbability of
what they say should not be regarded as separate enquiries to be
considered piecemeal. They are part of a single
investigation into
the acceptability or otherwise of a plaintiff’s version, an
investigation where questions of demeanour
and impression are
measured against the content of a witness’s evidence, where the
importance of any discrepancies or contradictions
are assessed and
where a particular story is tested against facts which cannot be
disputed and against the inherent probabilities,
so that at the end
of the day one can say with conviction that one version is more
probable and should be accepted, and that therefore
the other version
is false and may be rejected with safety (National Employers’
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E)).
”
See also
Machewane
v Road Accident Fund
2005 (6) SA 72
at 76.
[44] The defendant’s
counsel has sharply criticised the evidence of Fourie as a witness.
The criticism was based essentially
on Fourie’s evidence that
he did not unlock gate no. 1 on 14 July 2006, but made use of gate
no. 3. Further, that Fourie
denied that he unlocked the control room
on the same day. Fourie was also criticised for not remembering
seeing or talking to
the plaintiff and Msibi on the day of the
incident. For a person in charge of a substation, this evidence of
Fourie was some cause
for concern. However, it must be recalled that
the incident occurred more than four years previously at the time of
the trial.
The Court certainly did not gain the impression that
Fourie was deliberately misleading in this regard. On the contrary,
he came
across as a long-serving and reliable employee of the
defendant.
[45] On the contentious issue of
the open gate, it is not in dispute that the plaintiff probably
gained access to the live chamber
through an open door. On the
probabilities, the plaintiff was able to gain access to the High
Voltage Yard whether this was by
means of the gate closest to the
control room where he worked or the gate used by the painting
contractors or by some other means.
Even if the plaintiff gained
access through the gate allegedly left open by Fourie, this does not
advance the plaintiff’s
case in any material manner. The fact
of the matter is that the plaintiff was not authorised and was in
fact prohibited from entering
the live chamber. The negligence of
the plaintiff, having in mind his extensive training and experience
and qualifications, was
the ultimate cause of his injuries.
[46] In addition, the conduct of
the plaintiff immediately after the incident, on his version, as
supported by Msibi, is inherently
inexplicable. In a seriously
injured condition, the plaintiff chose to drive towards the Union
Hospital in Alberton some distance
away. As stated earlier, he
ignored the defendant’s security personnel and the readily
available medical facilities on site.
There was also an ambulance
service available on the premises of the defendant. Furthermore, it
is not in dispute that there was
a telephone available in the control
room where the plaintiff and Msibi worked. There is no reasonable
explanation given by the
plaintiff why he did not make use of this
facility either when he observed the open gate to the yard or open
door to the live chamber,
or after he was injured. There is also no
reasonable explanation why the plaintiff did not contact William at
the Rigi Depot.
In Exhibit “A149”, the plaintiff said:
“
The
thought was in my mind to contact William at Rigi Depot as I only had
his number because I found it suspicious that somebody
was stripping
there. Once I was injured the only thought that went through my mind
was to get to a hospital as soon as possible.
I had no intentions of
harming myself or Eskom’s property, I was only doing my job and
thought I was doing good.
”
Indeed, this remains
unconvincing. Once more, this brings into question the motives of
the plaintiff on the day of the incident.
William was employed by
Eskom at the Rigi Depot in Vanderbijlpark.
[47] The probabilities show that
it was rather the negligence, not of the defendant, but that of the
plaintiff which caused him
to sustain the electrical shock. On the
probabilities, the plaintiff was not injured by merely walking in and
out of the live chamber.
It is plain that the live chamber links
were against the left wall of the live chamber, and were protected by
wooden slats which
were between 400 mm and 600 mm away from these
links. It is also clear from the evidence of Lesley that in order
for there to
be a flash, plaintiff’s knee would have had to
have come as close as 5 to 7 cm from those links. This would have
entailed
plaintiff actually placing his knee to the left of the
wooden protective slat. It is not conceivable that plaintiff was
searching
for a person on the left of the protective slat. It is
also clear from Lesley’s evidence that contact was at least
made
with the metal bar. If contact was made only with this metal
bar and not with the live links there could be no flash. It was not
in dispute that there were in fact three flash marks. I did not
understand counsel for the plaintiff to challenge the evidence
of
Lesley pertinently. Lesley was objective. He could not say how
exactly the incident occurred. He made concessions where necessary.
[48] From the perspective of the
defendant, it was not foreseeable that a qualified and trained and
experienced electrician like
the plaintiff, would wander into the
live chamber and fiddle with equipment resulting in his injuries.
See
Kruger v Carlton
Paper of South Africa (supra)
.
In any event, the defendant had taken all reasonable steps to guard
against the occurrence in question. This is borne out by
the
evidence in the form of,
inter
alia
, the initial
video on safety at the security checkpoint; the warning signs; the
training provided to the plaintiff etc. The plaintiff
also completed
risk assessment forms with Msibi on a daily basis in the week leading
to the incident. In this regard, the defendant’s
submission
that the plaintiff was fully aware of the dangers and risks
associated with a High Voltage Yard, a block house and a
live
chamber, has merit. Further, that the uncontroverted evidence show
that the plaintiff was expressly aware that he was not,
under any
circumstances, to enter the live chamber. The plaintiff also
conceded the presence of the prohibitory signs on the High
Voltage
Yard fencing and the live chamber doors. The plaintiff further
conceded that he had no business at all in the High Voltage
Yard nor
that he had any right to be in the live chamber.
CONCLUSION
[49] I conclude that for all the
above reasons, in the circumstances of the case, there can hardly be
any negligence on the part
of the defendant. The defendant has
proved, on a balance of probabilities, that the plaintiff knew of the
risk, appreciated the
ambit of the risk, and in fact consented to the
risk. See
Malherbe v
Eskom
2002 (4) SA 497
(O). The exclusive recklessness and/or negligence of the plaintiff
was the approximate cause of his injuries. The plaintiff has
at no
stage relied on any allegation of negligence against the defendant on
the basis that it negligently created the impression
that the live
chamber was in fact completely dead. In the circumstances, the
defendant has discharged the
onus
on it to establish the defence of
volenti
non fit injuria
,
alternatively, to negative the presumption created by sec 26 of the
Electricity Act No. 41 of 1987. See
Rossouw
v Viljoen
1970 (3) SA
413
(C) at 417. The plaintiff’s claim falls to be dismissed.
ORDER
[50] The following order is made:
The plaintiff’s claim is dismissed with costs.
_____________________________
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF J J
WESSELS SC
INSTRUCTED
BY MALCOLM LYONS AND BRIVIK INC
COUNSEL FOR THE DEFENDANT BASIL
JOSEPH
INSTRUCTED BY WEBBER WENTZEL
DATE OF HEARING 1 SEPTEMBER
2010
DATE
OF JUDGMENT 29 NOVEMBER 2010