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[2011] ZASCA 28
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Fry v Huletts Aluminium (Pty) Ltd (241/10) [2011] ZASCA 28 (18 March 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 241/10
In the matter between:
RUBEN ANTHONY FRY
...............................................................................
Appellant
and
HULETTS ALUMINIUM (PTY) LTD
..........................................................
Respondent
Neutral citation:
Ruben Fry v Huletts Aluminium
(241/10) [2011] ZASCA (18 March 2011)
Coram:
NAVSA, CLOETE, SNYDERS, BOSIELO AND MAJIEDT JJA
Heard:
14 February 2011
Delivered: 18 March 2011
Summary:
Factual causation - probabilities
ORDER
On appeal from: KwaZulu-Natal High Court (Pietermaritzburg)
(Tshabalala JP sitting as court of first instance).
1 The appeal is upheld with costs, including the costs of two
counsel.
2 The order of the court below is replaced with the following:
‘
a The defendant is liable for the damages
suffered by the plaintiff due to the injury sustained in the fire at
the defendant’s
mill on 13 February 2002.
b The defendant is ordered to pay the plaintiff’s costs of suit
including the costs of two counsel.
c The preparation fees of the expert witness Mr Carr shall be allowed
on taxation.’
JUDGMENT
SNYDERS JA (NAVSA, CLOETE, BOSIELO and MAJIEDT JJA concurring)
[1] The appellant instituted action against the respondent in the
KwaZulu-Natal High Court, Pietermaritzburg, (Tshabalala JP presiding)
for damages suffered as a result of personal injuries he sustained
whilst performing work at the respondent’s S6 aluminium
rolling
mill in Pietermaritzburg. The appellant, at the relevant time, was in
the employ of Rallin Engineering CC which was contracted
to perform
work for the respondent. Pursuant to an agreement between the parties
and an order by the court below the determination
of the quantum of
damages was separated from all other issues in terms of Uniform rule
33(4) and postponed for later determination.
The remaining issues
between the parties were decided against the appellant and his action
was dismissed with costs. The appellant
appeals against that order
with the leave of the court below.
[2] The respondent contracted with Rallin Engineering CC to fit a
draining valve in two pipelines that carried oil to its S6 rolling
mill. On the morning of 13 February 2002 the appellant and three
colleagues were despatched to perform the installation. The
appellant,
a welder by trade, was accompanied by a pipe fitter, Mr
Houston, and a semi-skilled boilermaker and a labourer. Their work
involved
cutting a segment out of each of the two pipelines and
fitting a valve into the space left by each of the segments. This
description
of the work does, however, not convey the danger involved
in performing the task. Whilst they were busy with the execution of
the
work an explosion occurred which started a fire in which Houston
lost his life and the appellant was injured.
[3] The environment in which the work was executed, the substances
involved and the equipment used posed a high risk of injury
or
damage. The work was carried out in a basement underneath the rolling
mill. The rolling mill had been shut down for maintenance
work.
Access to the basement is only allowed when the rolling mill is not
in operation. The basement is a large area of about 500
square meters
that consists of various rooms and passages which accommodate the
support services of the rolling mill itself. This
includes
hydraulics, a cooling system, electrical installation and a carbon
dioxide pumping system required to extinguish the fires
that
regularly occur in the rolling process. Due to the risk of oxygen
deficiency posed by a carbon dioxide installation access
to the
basement is restricted and tightly controlled. A ventilation system
consisting of fans on the one end of the basement and
an extractor on
the other ensure the flow of air through the basement. When the mill
was shut down for maintenance, the ventilation
system was also shut
down.
[4] Large storage tanks for the rolling oil used as lubricant and
coolant in the process of rolling aluminium are kept in a so-called
clean oil tank in the basement and conveyed to the mill through a
network of pipes that run along the ceiling of the basement up
to the
mill where it is sprayed onto the rollers. The same oil, after use in
the mill, is caught in a large pan and conveyed through
a network of
pipes down into the basement to another large oil tank, the so-called
dirty oil tank from where it proceeds through
a filter back to the
clean oil tank that again feeds the rollers.
[5] The product that was used in the rolling process by the
respondent at the time is called Shellsol D100. The manufacturer’s
safety data sheet for this product describes it as a solvent that may
form a ‘flammable/explosive vapour-air mixture’
and warns
users to avoid heat, flames and sparks, not to breathe the vapours
and advises use only in well-ventilated areas. The
manufacturer
explicitly warns that ‘residues may cause an explosion if
heated above 100 °C’.
[6] The work that had to be performed required the appellant and his
colleagues to use an oxy-acetylene cutting torch and a welding
machine. The former consists of two cylinders, one of which contains
oxygen and the other acetylene. Both cylinders are connected
to a
torch by separate hoses. The cylinders are fitted with valves,
regulators and flame arrestors through which, once opened,
the gas
passes along the flexible hoses to the torch. The torch is fitted
with a further valve that regulates the flow of gas.
Acetylene is a
highly flammable gas. When the acetylene and the oxygen are released
in a controlled fashion and lit, it produces
an oxy-acetylene flame
that is used to cut very hard substances. The oxy-acetylene flame
burns at temperatures as high as 3300
degrees Celsius.
[7] Due to the risks posed by performing welding and oxy-acetylene
cutting in the basement the respondent was statutorily obliged
to and
took precautions for the performance of this work, which was referred
to as hot work. The precautions included that the
welding machine and
oxy-acetylene cutting equipment were visually inspected by Van der
Mescht, who was designated on behalf of
the respondent to supervise
the work. The purpose of the inspection was to ascertain whether the
equipment was in good order, free
from apparent safety issues. The
welding machine, oxygen and acetylene cylinders were not taken down
into the basement, but left
at ground floor level, whilst only the
cables of the welding machine and hoses and torch of the
oxy-acetylene cutting equipment
were passed through a grid in the
floor from the ground floor to the basement.
[8] As part of the statutory safety precautions a
so-called Hazard Clearance Permit was issued by Van der Mescht to the
appellant
in terms of the
General Safety Regulations.
1
The
permit records that the work that had to be
performed was ‘HEAT PRODUCING WORK’ and involved a
‘FLAMMABLE, TOXIC
OR CORROSIVE SUBSTANCE HAZARD’. The
appellant signed the permit and by doing so he acknowledged that all
the safety procedures
had been explained and understood and he
undertook to ensure that all work be completed in a safe and
satisfactory manner. The
safety precautions taken by the respondent
included the shutting down and locking of the pumps that pump the oil
to and from the
mill and the storage tanks, closing of all valves,
draining the pipes of oil and washing down the entire area where the
work was
to be performed with water. When the oil residue could not
be cleanly washed off the grids on the floor it was covered with
sheets
of wet cardboard. The permit records the safety precautions
undertaken and only after it was issued were the appellant and his
colleagues allowed access to the basement to perform the work.
[9] The permit was issued shortly after 9 o’clock on 13
February 2002 and the work commenced in the basement soon after that.
The two pipelines that had to be cut ran along the ceiling of the
basement, within a meter from each other. Segments were safely
cut
out by Houston, using the oxy-acetylene torch. The appellant’s
entire team then went back to the ground level to modify
the valves
that had to be fitted in the openings that were cut. The
modifications detained them until the afternoon when they went
back
into the basement.
[10] Upon their return it was evident that there was oil leaking from
one of the pipelines which had been cut in the morning. The
appellant
put his hand into the pipe and felt that the oil was warm. Van der
Mescht opened a valve and drained the oil from that
pipe. The pipe
was not washed out. Houston, to Van der Mescht’s knowledge, had
to further trim the pipes with the oxy-acetylene
torch before the
valves could be welded into place. For this purpose he positioned
himself near the ceiling of the basement. The
appellant felt that it
was unsafe to continue with the work because of the presence of the
oil in the pipe and expressed that view
to Van der Mescht. The latter
instructed them to continue with their work on the adjacent pipe that
was not leaking oil whilst
he went to check the status of the valves
in the pipeline on a computerised control system. The oxy-acetylene
torch was passed
down from the ground floor and handed to Houston.
Upon striking the flint an explosion occurred near the ceiling of the
basement
that caused a rolling fire.
[11] During the trial the respondent disputed that
it owed the appellant a legal duty to act without negligence and the
court below
found for the respondent on this issue. The respondent
required employees of its contractor to enter its premises to perform
dangerous
work in a dangerous environment under its exclusive
control. It could hardly be said, as was found, that because the
appellant
was not in the employ of the respondent that the latter
owed him no duty to act without negligence. Reliance was placed by
the
respondent on the
obiter dictum
in
Du Pisanie v
Rent-A-Sign (Pty) Ltd & another
2001
(2) SA 894
(SCA) para 15 for the submission that the appellant, as an
employee of an independent contractor, did not have the benefit of a
duty of care arising from the regulations. Insofar as that judgment
is to be understood to be authority for such a submission I,
regrettably, do not agree. In this court the respondent rightly
conceded that it owed the appellant a common law duty not to act
negligently and there is therefore no need to dwell on that topic
further.
2
The
General Safety Regulations create
a situation
specific statutory duty that essentially mirrors the content of such
a common law duty, hence my constant references
to the procedure
adopted in terms of the said regulations.
[12] The only issue on appeal is the factual cause
of the explosion and fire.
3
Should that be answered in favour of the
appellant, it is to be accepted that the failure to have provided a
safe working environment
is sufficiently closely linked to the
appellant’s loss for legal liability to ensue. Two potential
causes for the explosion
were postulated. First, a leak in the
oxy-acetylene cutting equipment and second, vapours from the Shellsol
D100. The expert witness
Mr Carr, a natural scientist specialising in
chemistry, who testified for the appellant, excluded the
oxy-acetylene leak as a possible
cause of the explosion. Mr Froneman,
a doctor in chemistry, who testified for the respondent, excluded the
presence of sufficient
Shellsol D100 vapours to have caused the
explosion. The trial court found that the two versions were ‘of
equal probability’
and therefore that it was ‘unable to
determine which version is the most probable’.
[13] The common cause facts provide the key with which to unlock the
deadlock that the trial court found to have existed. Upon
their
arrival the appellant’s welding machine and Houston’s
oxy-acetylene cutting equipment were visually inspected
by Van der
Mescht for the specific purpose of establishing whether it was safe
to be taken into the basement and to perform the
hot work that was
required. He found that all the equipment was in order and indicated
this on the Hazard Clearance Permit that
he issued. Van der Mescht
was not wrong, as Houston subsequently cut two pipelines and the
oxy-acetylene cutting equipment performed
without failure.
[14] Although witnesses described the smell of acetylene differently,
they were agreed that it has a very distinctive, unpleasant
smell.
The appellant’s evidence that there was no smell of acetylene
in the afternoon when Houston struck his flint to light
the
oxy-acetylene torch, was never challenged. Both Houston and the
appellant were qualified and very experienced artisans in their
respective fields. They both handled the oxy-acetylene torch in the
afternoon when it was lowered through the grid in the floor
from the
ground floor. The appellant handed the torch to Houston. It is highly
improbable, if acetylene was leaking in the basement,
that Houston
and the appellant would not have smelled it and even more improbable
that Houston would have struck the flint or that
the appellant would
have let him strike the flint if they smelled it.
[15] The suggestion that the explosion was caused by leaking
acetylene is purely speculative. The only objective fact which
supporters
of that theory relied on was that the explosion occurred
near the ceiling of the basement and caused a rolling fire. This
fact,
they said, supported the theory because acetylene is lighter
than air and if it escaped would have gathered against the ceiling,
whereas the vapours from the rolling oil are heavier than air and
would have drifted to the bottom of the basement. Therefore,
the
argument was, the fact that the explosion occurred at ceiling height
favours the theory that the acetylene leaked, accumulated
against the
ceiling and exploded when the flint was struck.
[16] The location of the explosion should not be viewed in isolation.
The inspection of the equipment earlier in the morning, the
successful use of the torch and the absence of any acetylene smell
give rise to probabilities that outweigh the one that may arise
on
the location of the explosion. Reliance on the location of the
explosion alone loses sight of the following logic. First, the
lighter acetylene, assuming it was leaking from the hoses or torch
that were lowered into the basement, would also have escaped
upwards
through the grid in the floor to the ground floor and an explosion
would have extended to that floor and caused a fire
there as well,
which it did not. Second, vapours heavier than air would have drifted
down from a source at ceiling height and if
ignited on its way down
to the floor area would have caused an explosion at a level higher
than floor level.
[17] Counsel for the respondent rightly argued that the leaking
acetylene theory does not have to be established as the respondent
had no onus of proof. He further argued that the appellant failed to
acquit the onus on him because it was a physical impossibility
for a
sufficient amount of the rolling oil vapours that are heavier than
air to have travelled upwards from its source, the clean
oil tank,
through the network of pipes and escape through the pipes that were
cut in the morning to have caused an explosion in
the afternoon.
[18] The fallacy of this argument is illustrated by the presence of
drilling oil that leaked out of the cut pipe in the afternoon.
It
could also not have travelled upwards. That vapours were present was
common cause. Vapours came not only from the oil that was
leaking but
from whatever source it leaked from. To say there could not have been
a sufficient body of vapours to have caused the
explosion that
occurred is therefore pure sophistry. The only change in the
conditions under which the appellant and his team worked
safely
during the morning was the presence of leaking rolling oil on their
return in the afternoon. This happened despite the pumps
that pumped
oil from the clean oil tank to the rollers through the line that was
cut, having been shut off and despite the valves
in those lines
having been closed off.
[19] Mr Lancaster, a mechanical engineer in the employ of the
respondent with much experience of the respondent’s rolling
plant, saw the orange glow of the flames from the fire that followed
the explosion and to him it looked similar to the many rolling
oil
vapour fires that he had previously seen in that plant, albeit never
in the basement.
[20] Carr’s evidence supports the probabilities on the
abovementioned facts. He stressed that Shellsol D100 is not an oil
but a solvent and under the conditions that the respondent was using
it, it degenerated, heat was transferred to it, it was exposed
to
air, it formed a flammable mixture with air, its instability
increased and its flashpoint decreased.
[21] All these facts give rise to probabilities that convincingly tip
the scale in favour of a finding that the explosion and fire
were
caused by vapours from the respondent’s Shellsol D100 rolling
oil that ignited when Houston struck the flint to light
the
oxy-acetylene torch.
[22] When the appellant and his team, under the supervision of Van
der Mescht returned to the basement in the afternoon, the conditions
had changed. The Hazard Clearance Permit that was issued in the
morning for working with heat producing equipment in the vicinity
of
and on the pipelines that convey the rolling oil no longer correctly
or validly recorded the safety conditions achieved in the
morning. In
at least two respects the safety precautions taken in the morning and
recorded on the permit no longer obtained. All
flammable,
combustible, toxic or corrosive material had not been removed,
suitably protected, neutralized or purged and valves
and pipelines
leading to the work area had not been closed and locked out.
[23] Once there was such a significant change in the working
environment in the afternoon, the respondent was obliged to re-employ
safety precautions to ensure that the environment was safe to work
in, as was done in the morning. That is what the statutory obligation
involved and what a reasonable person would have done in the
circumstances. Lancaster acknowledged that would have been the
reasonable
and necessary thing to do. Having failed to do so, the
respondent was, unarguably, negligent.
[24] There was a considerable amount of debate during the trial
whether the basement where the work was performed by the appellant
and his team constituted a confined space in terms of reg 5 of the
General Safety Regulations. The
trial court found that it was not.
The significance of the debate is that in a confined space the
respondent had a statutory obligation
to test the air and have it
pronounced safe by a competent person prior to any work taking place.
This was not done. Such a failure
would be an indication of
negligence. In view of the conclusion reached the issue is not
material, but it remains relevant to inform
future precautions. A
‘confined space’ in the
General Safety Regulations are
defined as:
‘
an
enclosed
,
restricted or limited
space
in
which, because of its
construction,
location or contents, or any work activity carried on therein, a
hazardous substance may accumulate or any oxygen-deficient
atmosphere
may occur
,
and includes any
chamber
,
tunnel,
pipe
,
pit, sewer, container, valve, pump, sump or similar construction,
equipment, machinery or object
in
which a dangerous liquid or a dangerous concentration of gas, vapour
,
dust or fumes
may
be present
.’
(My underlining.)
[25] The basement where the work was performed falls within the
definition because of the undisputed facts for a variety of reasons.
It is an enclosed space. It contained the storage tanks and network
of pipes for the rolling oil. The rolling oil, and the vapour
that
escapes from it, are present in the pipes and are hazardous
substances that may accumulate. The oxy-acetylene torch functioned
with a hazardous substance and if it leaked the acetylene may have
accumulated. It was common cause between the parties at the
trial
that the explosion occurred due to an accumulation of gaseous matter.
Furthermore, the plant was fitted with a carbon-dioxide
fire
extinguishing system that was housed in the basement. Activation or
leakage of that system could create an ‘oxygen-deficient
atmosphere’. As the air was not tested before the appellant and
his team continued their work in the afternoon, a test that
in all
probability would have prevented the explosion, the respondent was
negligent in this regard as well.
[27] In the notice of appeal the appellant seeks a
curious costs order that would expressly allow costs on the high
court scale
for reasonable consultation, preparation, travelling,
attending of an inspection and witness fees. In the same vein costs
are sought
for the preparation, report, qualifying fees and
attendance of the expert witness, Carr. Such an order is a matter for
the taxing
master and therefore not competent except insofar as the
preparation fees of the expert witness are concerned.
4
[28] For these reasons the appellant should have succeeded in the
court below. Consequently I make the following order:
28.1 The appeal is upheld with costs, including the costs of two
counsel.
28.2 The order of the court below is replaced with the following:
‘
a The defendant is liable for the damages
suffered by the plaintiff due to the injury sustained in the fire at
the defendant’s
mill on 13 February 2002.
b The defendant is ordered to pay the plaintiff’s costs of suit
including the costs of two counsel.
c The preparation fees of the expert witness Mr Carr shall be allowed
on taxation.’
_________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
For
appellant: J A Booyens SC (with him J M Singh)
Instructed by Volsum, Chetty & Lax, Pietermaritzburg,
Symington & De Kok, Bloemfontein.
For
respondent: A J Troskie SC
Instructed by Cox Yeats, Durban,
McIntyre &
Van Der Post, Bloemfontein.
1
GN
R1031, GG10252, 30 May 1986, as amended, particularly
regulation 9
that deals with welding, flame cutting, soldering and similar
operations. These regulations were promulgated in terms of the
repealed Machinery and Occupational Safety Act 6 of 1983 and are
deemed to have been made under the
Occupational Health and Safety
Act 85 of 1993
in terms of
s 43(5)
of the latter Act.
2
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Storage (Pty) Ltd
2000 (1) SA 827
(SCA) para 19;
Brooks
v Minister of Safety and Security
2009
(2) SA 94
(SCA) para 5.
3
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-H;
mCubed
International (Pty) Ltd v Singer & others NNO
2009
(4) SA 471
(SCA) paras 22 and 23.
4
Transnet
Ltd v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA);
[2009] 1 All SA 164
(SCA);
Legal
Aid Board v S
[2011] 1 All SA 164
(SCA).