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  • P.M obo O.M v Eskom Holdings Limited (29591/21) …

P.M obo O.M v Eskom Holdings Limited (29591/21) [2023] ZAGPPHC 1127 (31 August 2023)

80 Reportability
Delict
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Brief Summary

Torts — Negligence — Duty of care — Plaintiff, as guardian of minor child, claimed damages for injuries sustained from electrocution by defendant's live electrical wire — Defendant admitted duty of care but denied liability, alleging minor child's negligence — Court held that defendant failed to prove absence of negligence, finding it liable for 100% of damages due to inadequate safety measures and failure to secure live wire, with quantum postponed sine die.

Comprehensive Summary

Summary of Judgment


Introduction


This was a delictual damages action in the High Court of South Africa, Gauteng Division, Pretoria, arising from an incident in which a minor child was electrocuted after coming into contact with an electrical cable. The plaintiff, acting in her representative capacity as the mother and guardian of the minor child, sued the defendant, Eskom Holdings Limited, for compensation for the loss flowing from the injuries sustained.


The matter proceeded on a separated issues basis. By agreement between the parties, the court made a ruling under Rule 33(1) separating liability and quantum, with quantum postponed sine die. The judgment accordingly determined liability only.


The dispute concerned whether Eskom, as the entity responsible for the relevant electrical infrastructure, should be held legally responsible for the minor’s injuries, or whether liability should be excluded or reduced on the basis of the minor child’s alleged negligence and/or alleged voluntary assumption of risk, with possible apportionment of damages.


Material Facts


The court relied on the fact that on 28 October 2020 at Trust Location, Machubeni A/A, Lady Frere, the minor child was electrocuted after touching a hanging live electrical wire belonging to Eskom. At the time, the minor child was herding goats. It was treated as common cause that the injuries were sustained through contact with a hanging electrical live wire that formed part of Eskom’s electricity infrastructure.


After the incident, Eskom was contacted and dispatched employees to the scene. The minor child sustained severe injuries and was left permanently disabled, including amputations and burn-related complications as set out in the judgment. While the judgment recorded the nature of the injuries, the liability determination turned primarily on the occurrence of electrocution through contact with a live wire and Eskom’s failure to rebut the statutory presumption of negligence, rather than on the medical detail.


In its pleaded defence, Eskom alleged that the accident was caused solely by the minor child’s negligence and further alleged that the minor had been warned by a person identified in the plea (a witness Eskom did not call). Eskom also pleaded, in the alternative, that if it were found to have been negligent, then the minor child’s negligence contributed to his injuries and damages should be apportioned under the relevant statute. The court’s treatment of these allegations was shaped by Eskom’s election to lead no evidence.


Legal Issues


The central issues the court was required to determine were whether, in the light of section 26 of the Electricity Act 41 of 1987, Eskom bore the onus to disprove negligence, and whether Eskom had discharged that onus on a balance of probabilities.


Flowing from Eskom’s plea, the court was also required to determine whether Eskom had established either that the minor child’s own negligence was the sole cause of the accident, or that the minor child voluntarily assumed the risk of harm by touching the wire, or at least that the minor child was contributorily negligent such that an apportionment of damages under the Apportionment of Damages Act 34 of 1956 would be just and equitable.


These questions involved the application of law to fact, particularly the operation of a statutory presumption of negligence against an electricity undertaker and the factual sufficiency of the defendant’s case in rebuttal, as well as an evaluative assessment of what could reasonably be expected of a minor child in the circumstances described.


Court’s Reasoning


The court applied section 26 of the Electricity Act 41 of 1987, which provides that in civil proceedings against an undertaker for damage or injury caused by electricity generated or transmitted by, or leaking from, the undertaker’s plant or machinery, the damage or injury is presumed to have been caused by the negligence of the undertaker unless the contrary is proved. It was not in dispute that Eskom was an “undertaker” for purposes of the Act. On that basis, the court accepted that the onus rested on Eskom to prove, on a balance of probabilities, that there was no negligence on its part contributing to the injury.


A further factual and procedural feature materially influencing the reasoning was that Eskom led no evidence. Counsel for Eskom indicated that it had no witnesses to call, including the witness it had relied upon in its plea for the allegation that the minor child had been warned not to touch the powerline. Eskom accordingly closed its case without evidentiary rebuttal of the statutory presumption or substantiation of its pleaded defences.


The court considered Eskom’s pleaded contentions that the minor child failed to keep a proper lookout, ignored a warning, and consented to the risk of touching the live wire. It assessed those allegations against the evidentiary posture of the case and against the minor child’s circumstances. Taking into account the age of the minor child and the court’s view that the child was probably unsophisticated in relation to electricity and its dangers, the court found it could not reasonably be expected that the minor child was aware that the powerline was live, aware of the risks involved, or that he would reasonably have assumed the risk of being electrocuted by touching the live wire.


On the totality of what was before it, the court concluded that Eskom had failed to discharge the onus imposed by section 26. The court held that the facts demonstrated Eskom’s negligence in failing to take reasonable steps to prevent members of the public, and particularly children, from coming into contact with a live wire, including by securing the wire or providing visible warning signs of the danger posed by the live powerline. In the absence of evidence establishing the pleaded defences, the court was not persuaded that any basis existed for apportionment.


Outcome and Relief


The court held Eskom liable for the plaintiff’s claim on the merits and made an order that the defendant is liable to compensate the plaintiff for 100% of the agreed or proven damages, with the issue of quantum postponed sine die.


The court further ordered Eskom to pay the plaintiff’s High Court costs on the party-and-party scale, including the costs of counsel, either as agreed or taxed.


Cases Cited


No cases were cited in the judgment.


Legislation Cited


The Electricity Act 41 of 1987, specifically section 26, was cited and applied. The Apportionment of Damages Act 34 of 1956 was cited in the pleadings as the statutory basis for a potential reduction of damages by apportionment.


Rules of Court Cited


Rule 33(1) was cited as the basis upon which the court separated the issues of liability and quantum, with quantum postponed sine die.


Held


The court found that the incident fell within the scope of section 26 of the Electricity Act 41 of 1987, with the result that Eskom, as an undertaker, bore the onus to disprove negligence. Because Eskom led no evidence to rebut the statutory presumption of negligence or to substantiate its pleaded defences of sole negligence by the minor child, voluntary assumption of risk, or contributory negligence warranting apportionment, the court concluded Eskom failed to discharge its onus.


The court held that Eskom was negligent in failing to take reasonable measures to prevent public contact—particularly by children—with a live wire, including securing the wire or providing visible warnings, and it held Eskom liable for 100% of the plaintiff’s proven or agreed damages, with costs awarded against Eskom and quantum postponed.


LEGAL PRINCIPLES


Section 26 of the Electricity Act 41 of 1987 establishes a presumption of negligence against an electricity undertaker in civil proceedings for injury or damage caused by electricity generated or transmitted by, or leaking from, the undertaker’s plant or machinery, unless the undertaker proves the contrary. In such cases, the onus shifts to the undertaker to show, on a balance of probabilities, the absence of negligence contributing to the harm.


Where an undertaker leads no evidence to rebut the statutory presumption and cannot substantiate pleaded defences such as voluntary assumption of risk or contributory negligence, the presumption remains operative and the undertaker may be held fully liable on the merits.


In assessing allegations of awareness of risk and voluntary assumption of risk by a child, the court may consider the age and relative unsophistication of the minor in relation to the hazards of electricity when evaluating whether it is reasonable to attribute awareness, appreciation of risk, or assumption of that risk to the minor in the circumstances described.

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[2023] ZAGPPHC 1127
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P.M obo O.M v Eskom Holdings Limited (29591/21) [2023] ZAGPPHC 1127 (31 August 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 29591/21
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
31/08/2023
SIGNATURE
In
the matter between:
P[...]
M[...] obo O[...] M[...]
Plaintiff
and
ESKOM
HOLDINGS LIMITED
Defendant
JUDGEMENT
MNGQIBISA-THUSI
J
[1]
The plaintiff has instituted an action, in her representative
capacity
as mother and guardian of the minor child, O[...] M[...],
against the defendant in which she claims damages for loss suffered
as
a result of injuries the minor child sustained as a result of
being electrocuted by a electricity cable after touching it on 28

October 2020 in Trust Location, Machubeni A/A, Lady Frere.  At
the time the minor child was electrocuted he was herding goats.
[2]
After the accident the defendant was contacted and it dispatched its
employees
to the scene.
[3]
As a result of being electrocuted the minor child is permanently
disabled
and suffers from:
2.1
left foot decreased sensation to level above ankle;
2.2
left-hand decreased sensation to mid forearm, swollen to level of
shoulder;
2.3
debridgement of the left hand and left transmetatarsal amputation;
2.4
left elbow amputation, guillotine with shortened bones;
2.5
full thickness burns on the left hand;
2.6
auto -amputation of the middle toes and partly little toe and big
toe; and
2.7
sceptic dead left hand and wrist with sepsis extending to the
forearm.
[4]
The parties agreed to the separation of issue of liability and
quantum.
A ruling was made in terms of Rule 33(1) whereby
liability and quantum were separated and quantum was postposed
sine
die
.
[5]
The defendant, Eskom Holdings Limited, is a state owned company,
incorporated
in terms of the company laws of the Republic of South
Africa and is largely responsible for the provision of electricity to
the
South African community at large and owns the infrastructure for
supplying electricity and in particular in this case, powerline
pole
spanning CAR/FRM 641 and MHR/SNHL/55, located in Trust Location,
Machubeni A/A, Lady Frere
[6]
It is the plaintiff’s contention that the minor child
sustained his injuries as a result of the negligence of the defendant

in that it owed a duty of care to members of the public coming near
any of its electrical powerlines and/or cabling and/or wiring
and has
the duty to ensure that the electrical powerlines and/or cabling
and/or wiring is not exposed as to be a danger or cause
harm to
members of the public.  In particular, that the defendant has
the duty to ensure that all
live
electrical power lies and/or cabling and/or electrical wires and/or
uncovered electrical wires are,
inter
alia
,
not left unattended, are properly maintained and/or inspected; not
left at any place where it is within the reach of members of
the
public and/or accessible to members of the public; are disconnected
from the electrical power supply and properly secured and
that there
is adequate warning about the dangers of live and/or uncovered
electrical power lines and/or cabling and/or electrical
wires
electrical wires and/or power lines; and takes reasonable steps to
avoid any person being injured.
[7]
It was submitted on behalf of the plaintiff that the defendant was
negligent
in failing to ensure that:
6.1
to ensure
that the minor child was not exposed to a live wire;
6.2
to ensure
that live electric wiring was maintained and inspected regularly;
6.3
the live wire was secured; and
6.4
live
electrical wiring was not left at any place it was accessible or
within the reach of the minor child.
[8]
In its plea the defendant admits its duty towards members of the
public
but denies liability for the loss suffered by the minor child
and pleads that the accident was caused solely through the negligence

of the minor child in that the minor child:
7.1
failed to keep a proper lookout;
7.2
consented to the risk involved in touching the live wire by ignoring
warnings
from a certain Iviwe Manqina not to touch the wire;
7.3
failed to exercise reasonable care in order to avoid touching the
live wire;
and
7.4
that the minor child was aware or ought to have been aware or was
negligent
in not being aware in the risk of touching a live wire.
[9]
In the
alternative, the defendant pleads that, should a finding be made that
the defendant’s negligence contributed to the
damage suffered
by the minor child or that the minor child did not voluntarily assume
the risk of harm by touching the live powerline,
the minor child’s
negligence contributed to the injuries he sustained and that an
apportionment in terms of Apportionment
of Damages Act 34 of 1956, as
amended.
[10]
Furthermore,
in the alternative it was pleaded that the minor child ought to have
been aware of the risk involved in coming into
contact with the live
powerline and despite such knowledge and awareness and appreciation
of the risks, the minor child nevertheless
chose to be in contact
with the power line.
[11]
The defendant
prays for the action be dismissed and in the alternative that the
amount of damages to be awarded to the plaintiff
as damages should be
apportioned and further in the alternative, that the court make an
order that is just and equitable.
[12]
The initial issue to be determined was were the onus lay and should
have the duty to begin.
[13]
On behalf of the plaintiff it was submitted that on the issue of
negligence, the onus lay
with the defendant in light of the
provisions section 26 of the Electricity Act 41 of 1987 which
provides that:
“
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.”
[14]
It is not in
dispute that the defendant is an ‘undertaker’ as
envisaged in the Act.  In clause x111 of the Definition
section
of the Act, an undertaker is defined as:
“
any person
authorised under this Act or any other law to carry on an undertaking
which sells at least one gigawatt hour of electricity
per annum.”
[15]
Therefore,
there cannot be any dispute, and in fact it was not disputed by
counsel for the defendant that the onus was on the defendant
to
present evidence on a balance of probabilities that there was no
negligence on its part which contributed to the loss suffered
by the
minor child.
[16]
In his
address, counsel for the defendant submitted that it had no witnesses
to call, including calling the witness it alleges warned
the minor
child not to touch the powerline. Thereafter the defendant closed its
case.
[17]
In argument,
counsel for the defence submitted that the defendant stood by the
averments it made in its plea.
[18]
On behalf of
the plaintiff it was argued that in the absence of any evidence from
the defendant showing that its negligence did
not cause the injuries
sustained by the minor child or how the minor child’s
negligence contributed to the damage he suffered,
the defendant
should be held liable for all the loss suffered by the minor child
and that no apportionment should be applied.
[19]
It is common
cause that the minor child sustained his injuries after coming into
contact with a hanging electrical live wire belonging
to the
defendant.  Taking into account the age of the minor child and
probably the fact that he was unsophisticated when it
comes to issues
of electricity and the danger it poses if one comes into contact
with.  I am of the view that it could not
reasonably be expected
that the minor child was:
18.1
aware
that the powerline was on;
18.2
aware
of the risks involved; and
18.3
That he would reasonably have assumed the risk of being electrocuted
by touching the live wire.
[20]
Under the
circumstances I am satisfied that the defendant failed the satisfy
the onus lying on him and that from the facts, it is
clear that the
defendant was negligent in its duty to prevent the accident from
occurring by not taking reasonable steps to prevent
members of the
public, in particular children from coming into contact with a live
wire by securing it or putting visible signs
of the danger posed by
the live powerline.
[21]
In the result
the following order is made:
1.
The defendant is liable to compensate the plaintiff for 100%
of the
agreed or proven damages.
2.
The defendant to pay the agreed or taxed High Court costs as
between
party and party, such costs to include the costs of counsel.
3.
The issue of quantum is postponed
sine die
.
N
P MNGQIBISA-THUSI
Judge
of the High Court
Date
of hearing
: 01 February 2023
Date
of Judgment       : 31 August 2023
Appearances
:
For
plaintiff:  Adv W Binase (instructed by Mduzulwana
Attorneys.)
For
defendant:  Adv M.I.E Ismail (instructed by Molefe Dlepu
Attorneys)

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