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[2012] ZASCA 44
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Pitzer v Eskom (336/11) [2012] ZASCA 44 (29 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 336/11
Not Reportable
In
the matter between:
HENDRIK JOHANNES
PITZER
…...................................................
Appellant
and
ESKOM
…...........................................................................................
Respondent
Neutral citation:
Hendrik Johannes Pitzer v Eskom
(336/11)
[2012] ZASCA 44
(29/03/ 2012).
Coram:
NUGENT,
CACHALIA and BOSIELO JJA and PETSE and BORUCHOWITZ AJJA
Heard:
28
February 2012
Delivered:
29
March 2012
Summary:
Negligence – failure to take reasonable precautions against
foreseeable risk – action for damages against undertaker,
as
defined in Electricity Act 41 of 1987 – qualified electrician
injured in a live chamber of an electrical substation –
undertaker failing to rebut presumption of negligence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng High Court, Johannesburg, (Moshidi J) sitting as
court of first instance):
The following order
is accordingly made:
1. The appeal
succeeds with costs.
2. The order of the
court a quo is set aside and the following order substituted:
‘
It
is declared that the defendant is liable for fifty per cent of the
plaintiff’s proven or agreed damages.’
______________________________________________________________
JUDGMENT
______________________________________________________________
BORUCHOWITZ AJA
(NUGENT, CACHALIA and BOSIELO JJA and PETSE AJA concurring):
[1] On 14 July 2006
the appellant was injured by an electric shock sustained inside a
live chamber of an electrical substation operated
by the respondent
(Eskom) at a complex in Vanderbijlpark. Arising from this incident he
sued Eskom for damages in the South Gauteng
High Court, Johannesburg,
alleging that it had been negligent in various respects. Eskom denied
liability. The trial proceeded
on the issue of liability only. At its
conclusion, Moshidi J, dismissed the claim, holding that the
appellant’s injury was
caused solely by his own negligence and
that there had been a voluntary assumption of risk. With the leave of
the court a quo the
appellant appeals against this judgment.
[2] A live chamber
is an enclosed room or area in which a high voltage electrical
apparatus is housed. The live chamber in which
the appellant was
electrocuted is located inside a high voltage yard. In terms of
regulations issued by Eskom access to such a
yard is strictly
controlled, and the door to every live chamber is required to be
closed at all times and the key thereto kept
under the control of a
designated official. The appellant, who is a qualified electrician,
was aware of these requirements as he
had completed a course
presented by Eskom relating to the regulations.
[3] During the week
ending 14 July 2006, the appellant was employed by a private
electrical contracting company to carry out electrical
work in a
control room which is located outside the high voltage yard. He was
being assisted by Mr Msibi. At that time certain
structures were
being painted within the yard under the auspices of an independent
contractor. The painting contractor was given
access to the high
voltage yard through a gate closest to the control room, and was
permitted to use a private lock in order to
open and close this gate.
[4] At the time the
high voltage yard was under the control and supervision of Mr Fourie,
a principal technical official employed
by Eskom. His duty was to
ensure that the requirements of the regulations were complied with
and that the electrical substation
was properly secured at all times.
[5] The appellant
testified that at about 11h00 on 14 July 2006 he was approached by Mr
Fourie who informed him that he was going
fishing. Fourie then left
the substation in his Eskom vehicle. When the appellant later emerged
from the control room he noticed
that the main gate to the high
voltage yard was open. The appellant knew, by virtue of his training,
that the gate should have
been closed and locked, unless work was
being performed under supervision inside. He therefore decided to
close the gate, but before
doing so he wanted to satisfy himself that
all the painters had vacated the yard.
[6] Upon entering
the yard the appellant observed that the door to the live chamber on
the first floor of the southern blockhouse
was open. In order to
satisfy himself that no one was in the blockhouse, he went up the
stairs and approached the live chamber.
He then entered the live
chamber where he noticed certain electrical equipment lying on the
floor in a partially dismantled state.
It was at that stage that the
appellant sustained an electric shock and was rendered unconscious.
He was taken to the hospital
by his assistant, Mr Msibi.
[7] The appellant
explained that he entered the live chamber because he believed that
it was either dead or decommissioned. His
belief was reinforced by
the following factors: the door to the live chamber was open when it
should have been closed, the bottom
doors to the blockhouse were open
and painters were seen using the cubicles, one of the rooms in the
southern blockhouse was burned
down and equipment used to generate
electricity lay in a dismantled state on the floor of the live
chamber.
[8] Mr Fourie
conceded that he left the premises at about 11h00, but there is a
conflict in the evidence as to the means by which
he did so. He said
that he left the yard through the gate being used by the painters,
who were at that time preparing to leave,
and that he assumed that
they would lock the gate. At the time he left, so he said, the other
gates to the yard were locked. Fourie’s
evidence in this regard
is neither credible nor probable. Pitzer’s testimony that he
entered the high voltage yard is corroborated
by Mr Msibi. Their
versions were also not challenged in cross-examination and nor, as
one would have expected, was it put to them
that Mr Fourie had left
the high voltage yard through the gate that was used by the painting
contractor.
[9] Mr Barry Leslie,
a protection specialist employed by Eskom, gave expert evidence. He
examined the live chamber immediately after
the incident and
identified flash marks on a meter panel approximately three meters
from the door. He also found burnt paint and
the residue of clothing
on a horizontal bar. He concluded from this that the appellant would
have been some three meters into the
live chamber and in close
proximity to the live equipment when he was electrocuted.
[10] The aforegoing
is, in broad terms, a summary of the relevant evidence. The
appellant’s version was corroborated in material
respects by
the testimony of his assistant, Mr Msibi. No countervailing evidence
was adduced by Eskom as to the circumstances giving
rise to the
appellant’s injury.
[11] There is a
presumption of negligence that operates in favour of the appellant.
Section 26 of the Electricity Act 41 of 1987
(the
Act)
provides:
‘
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.’
[12] Eskom is an
‘undertaker’ as defined in section 1 of the Act. It is
common cause that the appellant’s injuries
were caused by
electricity transmitted by Eskom’s apparatus in the live
chamber. The effect of the section is to cast upon
Eskom the onus of
proving on a balance of probabilities that it was not negligent or,
if it was, that there was no causal link
between that negligence and
the injury sustained by the appellant. (See
Eskom Holdings Ltd v
Hendricks
2005 (5) SA 503
(SCA) para 8).
[13] Counsel for
Eskom, rightly, conceded that the trial court’s finding that
there had been a voluntary assumption of risk
by the appellant was
unsustainable. It was submitted, however, that Eskom had discharged
the evidential onus of establishing an
absence of negligence on its
part.
[14] Two general
propositions were advanced on Eskom’s behalf. Firstly, that a
diligens paterfamilias
in the same position would not have
foreseen the possibility that a trained electrician, such as the
appellant, would enter a live
chamber and injure himself by coming
into contact with live equipment. Secondly, on the assumption that
such harm was reasonably
foreseeable, that Eskom had taken all
reasonable steps to guard against such occurrence. In this regard,
Eskom had ensured that
the live chamber was specifically housed in a
separate blockhouse structure located on the first floor away from
other activities
at ground level, the keys thereto were subject to
strict control and access to the chamber was only permitted if
authorised by
a permit.
[15] It was also
argued that the appellant’s injury was caused entirely by his
own negligence. He was only required to perform
work in the control
room outside the high voltage yard and had no instruction or
authority to enter the yard. He knew the dangers
of electricity and
particularly the dangers associated with live chambers, but despite
such knowledge entered the live chamber
and touched or placed himself
in close proximity to the high voltage equipment. It was submitted
that a reasonable person in the
position of the appellant would not
have entered the live chamber before first ascertaining whether it
was in fact decommissioned.
Moreover, the appellant’s stated
reason for entering the yard and the live chamber was contradictory,
illogical and suspicious.
If he really believed that the chamber was
not active there would have been no reason for him to conclude that
he had a duty to
enter the yard and close or lock the door of the
live chamber. He also had no key with which to lock the chamber.
[16] Finally, it was
submitted that even if the gate to the high voltage yard and the exit
door to the live chamber were open, this
was not the cause of the
appellant’s injury. The direct cause was his own negligence in
entering the live chamber.
[17] Of the three
requirements that are necessary for liability under the Aquilian
action, only fault (
culpa
)
and causation are in
issue. Wrongfulness is not in contention. The parties accept that as
the operator of a high voltage system,
Eskom was under a legal duty
to take reasonable measures to prevent injury to persons entering the
high voltage yard and that a
failure to do so would be actionable.
1
[18] The test for
determining negligence is that formulated by Holmes JA in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E-F:
‘
For
the purposes of liability
culpa
arises
if–
(a) a
diligens
paterfamilias
in the position of the defendant–
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
the defendant
failed to take such steps.’
[19] I think there
can be no question that Mr Fourie must have foreseen, or at least
ought reasonably to have foreseen, that some
person, albeit that he
or she may have been a trespasser, might enter the yard and be
exposed to the danger of electrocution if
the gate to the yard was
left open while it was not under supervision. The very purpose for
which there was a gate, and for which
Mr Fourie’s instructions
were to keep it locked, was to prevent that from occurring. It was
submitted on behalf of Eskom,
however, that even if it was
foreseeable that some person might be exposed to the risk of
electrocution, it was not foreseeable
that harm might come to a
person in the position of Mr Pitzer, a trained electrician.
[20] Whether
foreseeability of harm to someone suffices for negligence, or whether
it requires foreseeability of harm to a person
in the position of the
appellant, is a matter that has evoked considerable debate over the
years. It is not necessary to enter
that debate in this case. I will
assume that the reasonable foreseeability of harm to a person in the
position of the appellant
namely, a person qualified and experienced
in the risks associated with electricity, is required for Mr Fourie
(and hence Eskom)
to be held liable.
[21] In my view, Mr
Fourie should reasonably have foreseen that even a qualified
electrician might come to harm if the entrances
to the premises were
left open. Indeed, I think that one might expect that such a person
particularly will appreciate the risks
of leaving the premises open
and will take steps to prevent that happening, if necessary by
entering the premises to close and
secure open doors. Nor do I think
that his or her qualification, in itself, is any guarantee that he or
she will not come to harm.
He or she will not necessarily have
intimate knowledge of the apparatus on the premises; he or she will
not be aware of dangers
that might have been left in existence by
incomplete work; he or she will not necessarily be aware of the
layout of the apparatus
and where the danger points are. The fact
alone that the appellant found himself being electrocuted seems to me
to demonstrate
amply that even qualified electricians are subject to
risk.
[22] We were
referred by counsel for Eskom to the decision of this court in
Kruger
v Carlton Paper of South Africa (Pty) Ltd
2002 (2) SA 335
(SCA).
In that case a maintenance electrician came into contact with a live
terminal connected to a transformer. The court identified
the issue
before it 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.’
2
[23] It went on to
make the following findings:
‘
The salient
facts which were available to the defendant as a reasonable person at
the relevant time to enable it to decide whether
there was any real
danger of the plaintiff coming into contact with the terminal, were
the following:
(a)
The
plaintiff was a qualified and trained electrician.
(b)
He
was aware of the danger of coming into contact with the live terminal
and how he had to conduct himself in the enclosure. He
knew that it
was dangerous to get close to the terminal and that it was not
required of him to get close to it.
(c)
At
the commencement of his employment with the defendant in 1988 he had
been inducted while working under the supervision of a senior
electrician and would have been told of the dangers inherent in
working in proximity to an electrically live apparatus, in this
case,
the NEC.
(d)
From
1988 to 1994 when the accident occurred, he had worked without
incident and had not complained that working in the NEC enclosure
constituted any danger to himself.’
3
And it concluded as
follows:
‘
Having
regard to all the above factors I consider that a reasonable person
in the position of the defendant would not have foreseen
that the
plaintiff would either squeeze between the terminal and the wall or
get so close to the terminal as to cause him to come
into contact
with it.’
4
[24] What is or is
not reasonably foreseeable in any particular case is a fact bound
enquiry. I think it is clear from the abovementioned
excerpts alone
that it was by no means only because the plaintiff in that case was
an electrician that the court concluded that
harm to a person in his
position was not foreseeable. The facts that founded that decision
were more complex than that. Where questions
that fall to be answered
are fact bound there is seldom any assistance to be had from other
cases that do not share all the same
facts. That seems particularly
apposite in this case, in which the facts are materially
distinguishable.
[25] In my view, it
was indeed reasonably foreseeable to Mr Fourie that if the premises
were left open the appellant might enter
and accidentally be
electrocuted. It needs to be borne in mind that the precise or exact
manner in which the harm occurs need not
be foreseeable: only the
general manner of its occurrence. (
Sea Harvest Corporation (Pty)
Ltd & another v Duncan Dock Cold Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA) para 22). That being so, he was obliged to
take reasonable steps to avoid it occurring. What was called for in
that regard
was no more than to lock the gate as his duties required.
His failure to do so was in my view negligent.
[26] Turning to the
question of causation, the test is ‘whether but for the
negligent act or omission of the defendant the
event giving rise to
the harm in question would have occurred’ (
Minister of
Police v Skosana
1977 (1) SA 31
(A) at 35C-D. See too
Siman &
Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888
(A) at
915B-H;
International Shipping Co (Pty) Ltd v Bentley
1990 (1)
SA 680
(A) at 700F-H).
[27] That the gate
to the high voltage yard and the exit door to the live chamber were
open at the relevant time can admit no doubt
regarding causation.
Logic dictates that had they been closed the appellant would not have
had access to the substation and the
incident would not have
occurred. It is indeed so that the appellant’s explanation for
entering the live chamber is suspicious,
but nothing material turns
on that aspect. It was Eskom’s duty to ensure that only
authorised persons had access to the yard
and that the substation was
properly secured as required under the regulations. Eskom’s
designated official, Mr Fourie, was
required to see to it that all
doors and gates to the substation and, especially to the live chamber
were closed and locked. Clearly,
he did not comply with his
obligations. The reason as to why the door to the live chamber was
left open remains unexplained. There
was thus a causal link between
Eskom’s conduct in failing to properly secure the yard and the
live chamber and the appellant’s
injury. But whether Eskom’s
conduct was the sole cause of the appellant’s injury is another
matter.
[28] What remains is
whether the appellant was contributorily negligent. Objectively
viewed the appellant would have had no valid
reason to assume that it
was safe to enter the live chamber. The factors upon which the
appellant relied were at best superficial.
The appellant never knew
for a fact whether the blockhouse and live chamber had been
decommissioned. A reasonable person in the
position of the appellant
ought to have made such enquiries before entering the live chamber.
He was undoubtedly negligent in either
touching or standing in close
proximity to the high voltage equipment which injured him.
[29] On an overview
of the proven facts, I find that both parties were equally at fault
in relation to the damage caused and that
the appellant’s
damages should be reduced by fifty per cent.
[30] The following
order is accordingly made:
1. The appeal
succeeds with costs.
2. The order of the
court a quo is set aside and substituted with the following:
‘
It
is declared that the defendant is liable for fifty per cent of the
plaintiff’s proven or agreed damages.’
_____________________
P BORUCHOWITZ
ACTING JUDGE OF
APPEAL
Appearances:
Appellants: J J
WESSELS SC
Instructed by
Malcolm Lyons & Brivik,
Cape Town
Matsepes Inc,
Bloemfontein
Respondent: M DU P
VAN DER NEST SC
Instructed by Webber
Wentzel,
Johannesburg
McIntyre & Van
Der Post, Bloemfontein
1
See,
for example,
Trustees, Two Oceans Aquarium Trust v Kantey &
Templer (Pty) Ltd
2006 (3) SA 138
(SCA) paras 11-13 and cases
cited.
2
Kruger
v Carlton Paper of South Africa (Pty) Ltd
para 9.
3
Kruger
v Carlton Paper of South Africa (Pty) Ltd
para
13.
4
Kruger
v Carlton Paper of South Africa (Pty) Ltd
para
1
9.