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[2011] ZAKZDHC 29
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Kelly v South African Petroleum Refineries (8265/2005) [2011] ZAKZDHC 29 (17 June 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 8265/2005
In the matter between:
PAUL LAWRENCE KELLY
…....................................................
PLAINTIFF
and
SOUTH AFRICAN
PETROLEUM REFINERIES
….................
DEFENDANT
JUDGMENT
Delivered
on 17 June 2011
______________________________________________________
SWAIN J
[1] On 08 October 2004,
the plaintiff whilst engaged in the installation of an auxiliary
electrical cable into a panel, situated
at an electrical sub-station
known as CDU2, at the refinery of the defendant, suffered burns to
his body as a result of a
“flashover”
which
occurred in the panel.
[2] The plaintiff claims
damages from the defendant for pain and suffering, disability,
disfigurement, loss of amenities of life
and past and future loss of
earnings on the basis that the “
flashover”
was
caused by the negligence of the defendant and its servants in a
number of respects, alleging that the defendant owed a duty
of care
to the plaintiff working at the sub-station, to ensure that the
panels were properly maintained, free from any defects
and hazard
free. It is further alleged that had the defendant discharged this
duty, the panel would not have exploded.
[3] With the consent of
both parties, I granted an order in terms of Rule 33 (4) separating
the issues of liability and quantum.
I am accordingly at this stage
of the proceedings, only called upon to decide the issue of
liability.
[4] At the outset, it is
necessary to appreciate what a
“flashover”
is
and to determine what the most probable cause of such a phenonomen
was, on the facts of this case. Mr. Michael Neale, a qualified
electrician, who has also been involved in design of high voltage
sub-stations and particularly sub-station control circuitry,
was
called by the defendant and is the author of a report dated 11
October 2004, in which he expressed his opinion as to the possible
cause of the electrical short circuit and resultant fire.
[5] According to Mr.
Neale, the fault may have been caused by accidental electrical
contact between the neutral wire and the yellow
(centre) phase
busbar. Mr. Neale when giving evidence referred to photo 9,
(contained in his report appearing at Exhibit “C”
at page
8) and drew attention to a ridge, situated on the photo indicated by
an arrow, bearing the annotation
“Note the fusion of a
wire onto the chassis plate between the white and blue phases”.
Such a ridge is visible
in the photograph and he explained that the appearance of the ridge,
was similar to that which is obtained
by taking a welding rod and
running a line of welding onto a flat piece of steel. This he
explained was a fusion of the neutral
wire onto the phase. In
addition when the end of the neutral wire was examined, it was found
to be annealed which meant it had
become very soft. When manufactured
it is hard drawn which gives the wire self-support. However, when the
wire carries excessive
current it becomes annealed. He then
identified the missing piece of the neutral wire, which had become
fused onto the chassis
plate, between the white and blue phases. It
was this piece of evidence, together with the annealing of the
neutral wire, which
played a significant part in his ultimate
conclusion.
[6] Mr. Neale explained
further that for the electrical fault or short-circuit to have
occurred between the neutral wire and the
chassis plate, it was
necessary for the insulation on the neutral wire to have degraded,
exposing the copper wire.
[7] According to Mr.
Neale the resultant flashover, or fire, was a result of the pollution
of air between the busbars with copper
vapour, caused by the fusion
of the copper neutral wire to the chassis plate. The presence of
copper vapour in the air caused it
to become conductive, with the
result that what originally started off as a phase to ground fault,
with one phase involved, (being
white phase to earth) the arc
products of the expanding air, caused the red phase busbar to
flashover, resulting in the explosion.
[8] What has to be noted
is that although the plaintiff, and a witness called by the
plaintiff, were somewhat sceptical that this
was in fact the cause of
the flashover, they did not suggest any alternative plausible cause
of the blaze.
[9] The plaintiff, who is
a qualified electrician, initially said that he did not believe that
could have been the cause, but later
in his evidence was prepared to
concede it was the
“likely”
cause.
Mr. Brett Campbell, who was the author of the so-called tripod
investigation, to which reference will be made later in this
Judgment, when he was called by the plaintiff, said that although the
report accepted that the neutral wire contacted the busbars,
he and
the members of the investigation team were
“highly
sceptical”
that this was the cause. He said that
the findings of Mr. Neale although
“unlikely”
were
the most plausible cause for the incident.
[10] In my view, the
cause of the incident described by Mr. Neale, based as it is upon
physical evidence apparent in the photos
forming part of his report,
is the most probable cause. It should be noted that Mr. Neale
emphasised that in his experience, the
origin of the fault should not
be regarded as in doubt. He explained that the reason why he stated
in his report that his evaluation
of the cause is not conclusive, is
because he was invited to investigate the day after the incident and
had to re-assemble components
that had been removed.
[11] It is therefore
clear that in order for the fault to have occurred, it was necessary
for the insulation to have degraded on
the neutral wire, at the spot
where the exposed neutral wire came into contact with the busbars.
Mr. Colleton who was called by
the plaintiff and who is qualified in
the study of heavy electrical current, said that direct contact
between the exposed neutral
wire and the busbar was necessary for a
direct short and flashover to result. This however was refuted by Mr.
Neale, who said that
if the neutral wire was close enough for the
intervening air space, no longer to act as insulation, which he
estimates could be
two to three millimetres, a direct short could
occur. This distance would however depend upon the quality of the
air.
[12] What this however
illustrates is that a very small movement of the neutral wire, with
degraded insulation, in the location
identified by Mr. Neale, would
be sufficient to cause a short and flashover.
[13] The plaintiff states
that he did not notice the neutral wire in the panel and that he
might have brushed it with his shoulder.
Whether the plaintiff
brushed the neutral wire or not, the inference is inescapable that
the plaintiff’s movements in the
panel, caused movement in the
neutral wire, which in turn resulted in the short and subsequent
flashover. It is grossly improbable
that the occurrence of the fault
was unconnected with the presence of the plaintiff in the panel.
[14] It is quite clear on
the evidence that the task the plaintiff was engaged to do, namely
thread an auxiliary cable through the
base plate of the panel, after
drilling a hole for this purpose, and then locking the cable in place
with a locknut, was regarded
as a low risk routine job.
[15] The plaintiff when
asked about the risk assessment procedure, which preceded the
performance of the task and his signature
on Exhibit “D6”,
said the following
“
Yes, we all
signed off on it to say that we know whatever dangers there were but
it wasn’t a risk. This kind of a job is not
a risk, it is
something they do often, all the time, and it has never been brought
as a risk factor”.
[16] Mr. Alan Jones, a
qualified electrician employed by Tekon Engineering, who were a
contracting company permanently on site at
the refinery of the
defendant, and who also employed the plaintiff, and was called by the
plaintiff, said that after the fuses
were removed in the panel in
question, for them to work in the panel
“….was a
very, very low risk”.
The reason being that once
the fuses were removed the panel was then isolated from the
electricity supply in the busbars, which
were located behind a busbar
cover.
[17] In similar vein, Mr.
Brett Campbell, who at the time was employed by the defendant as the
assistant area engineer for the south
zone, but was called by the
plaintiff, confirmed the statement contained in the tripod
investigation (Exhibit “C71”)
which he authored, reading
as follows:
“
The incident
was something of a freak accident that occurred whilst a routine job
was being executed by trained personnel who had
performed the job
many times”.
[18] Mr. Michael
Colleton, dealing with the risk assessment procedure carried out
before the job was commenced and when asked specifically
about the
danger of insulation degradation and whether this should have been
considered in the assessment, said the following:
“
No, I must
admit we didn’t give it a thought because, well, it went on the
stuff that we knew and what we have seen happen
and nothing had
happened but what you are saying in hindsight, ja”.
In other words, he agreed
that with the benefit of hindsight, the danger of insulation
degradation should have been taken into account
in assessing the
risk.
[19] Mr. Michael Neale,
confirmed the statement contained in his report (Exhibit “C47”)
reading as follows:
“
The MCC
cubicle in which the contractor was working can be considered as safe
while the protective barriers are in place”
adding that inadvertent
contact with live electrical equipment was not possible under normal
circumstances. By the use of the word
“safe”
he
meant
“safe as it can be at the time”
referring
to the protective barriers in place. He meant safe to
“knowledgeable
people, experienced people”
and safe in the sense
that with the isolated busbars he would not have anticipated a
flashover. In addition he expressed the view
that in his experience
the safety precautions that were in place were in line with safety
precautions taken at plants for this
type of switchgear. Regard being
had to the safety barriers that were in place, he stated that it was
an unfortunate accident,
that could not have been foreseen.
[20] I regard the view
expressed by Mr. Neale as to the absence of foresight of the risk,
not as an attempt to prescribe to me the
legal issue which I am
called upon to decide, namely foresight of the risk of harm on the
part of a reasonable man, but as an expression
of his view, that the
job was a low risk one. This is borne out by the contents of the
Electrical Permit to Work (Exhibit “D”
pages 4 – 6)
being the risk assessment procedure, referred to above. The plaintiff
stated that page “D6” was
a risk analysis which was
completed before the work was undertaken by a Mr. de Beer on behalf
of Tekon, who was in charge. As pointed
out above he signed this
document which recorded the potential dangers, as using the wrong
tools, or electric shock as a result
of working on the wrong panel.
Mr. Jones stated that it was recorded that the fuses had been
removed, which meant that the bucket
had been isolated from the main
current and that the permit could not be signed until it had been
done. If the panel was isolated
it meant that it was safe to work on
the panel. He said that he was the person on behalf of Tekon who was
shown what work had to
be done, and would have been satisfied with
the Permission to Work document. In his view the responses in the
document were proper
for the job. Mr. Campbell explained that the RAM
score on the permit, denoted a figure produced by the risk assessment
matrix,
which was the risk involved in carrying out the task, which
was determined by the probability of an incident, as well as the
consequences
of such an incident. This was carried out before a task
in order to build a risk profile. Mr. Colleton added that Exhibit
“D6”
referred to by the plaintiff, was the contractor’s
assessment of what could go wrong, which was completed the day before
the incident, when a representative of the defendant was present.
Exhibit “D5” was completed by a representative of
the
defendant, with the contractor and he would have been satisfied with
the answers supplied. The answers included positive replies
to the
following questions:
Do you and the people
under your control understand the job requirements and the risks
attached?
Have you verified that
what you are working on is dead?
Have you confirmed that
the work area is safe to work?
Are all live components
barricaded off to avoid access?
As regards the RAM score
of four on the Permit for
“people”
he
said that this was not a high score, because the probability of
injury was low, because there were no live parts. As pointed
out
above, he said that with hindsight the issue of insulation
degradation, should have been considered when the RAM score was
formulated.
[21] It is therefore
clear that none of the participants in the performance of the work,
foresaw the possibility of harm in the
form it materialised, namely a
flashover caused by the neutral wire with degraded insulation, coming
into contact with the live
busbar.
[22] That all of these
witnesses, as trained electrical personnel (except for Mr. Campbell)
did not subjectively foresee the possibility
of such harm, is a
relevant consideration in assessing whether a reasonable electrician,
in the position of the defendant, would
have foreseen the possibility
of harm. The standard of the reasonable electrician is appropriate on
the facts of this case, because
as stated by Macaulay J, with Beck J
concurring in
State v Meyer 1972
(2) (PH) H (S) 62 (R)
“
On the main
charge the magistrate had held that Griffiths was not negligent
because he believed the apparatus to be safe and was
a normal
householder in the same circumstances would have similarly believed.
The correct test of negligence was however whether
Griffiths as a
person with specialised knowledge of electricity and working with a
dangerous force should have so believed, and
whether he exhibited
that degree of care and skill which might reasonably be expected from
a competent electrician”.
As regards the weight to
be attached to the evidence of the qualified electricians in this
case, the well known words of Innes C
J in
Van Wyk v Lewis
1924 AD 438
at 444
are apposite
“
And in
deciding what is reasonable the court will have regard to the general
level of skill and diligence possessed and exercised
at the time by
members of the branch of the profession to which the practitioner
belongs”.
and further at pg 448
“
But the
decision of what is reasonable under the circumstances is for the
court, it will pay high regard to the views of the profession,
but it
is not bound to adopt them”.
[23] The plaintiff
alleges that the defendant owed a duty of care to all personnel
working at the sub-station and in particular
to the plaintiff, to
ensure that the panels were properly maintained, free from any
defects and hazard free. A number of grounds
are alleged in terms of
which the defendant and/or its servants, acting within the course and
scope of their employment, acted
negligently. Amongst these are
allegations that the defendant failed to ensure the panel was in good
and proper working order,
failed to adequately maintain and service
the panel, failed to conduct adequate inspections of the panel,
failed to renew components
of the panel that required replacing and
allowed the panel and its components to become outdated and the
moving parts to become
worn. Certain other allegations of negligence
are made but the gravamen of the plaintiff’s complaint is
contained in the
allegation that
“
Had the
panel been properly serviced and maintained, it would not have
exploded”.
[24] In the light of the
evidence led, the omission of the defendant relied upon by the
plaintiff, was a failure on the part of
the defendant to service and
maintain the panel in question, in such a manner that the degraded
insulation on the neutral wire
in the location complained of, would
have been detected timeously and replaced.
[25] In order for such an
admission to be classified as negligent, a reasonable electrician in
the position of the defendant would
have to foresee the reasonable
possibility of degradation of the insulation on the neutral wire and
such un-insulated neutral wire
injuring another in his person and
causing him patrimonial loss, whilst performing work in the panel in
question.
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 E - F
[26] Whilst the precise
or exact manner in which the harm occurs need not be foreseeable, the
general manner of its occurrence must
indeed be reasonably
foreseeable.
Sea Harvest
Corporation v Duncan Dock Cold Storage
2000 (1) SA 827
(SCA) at 840 B – C
[27] Although it may
readily be assumed that a reasonable electrician would foresee the
reasonable possibility that degradation
of insulation on wires
carrying live current, could injure another in his person, the
outcome is not as readily apparent when the
wire in question is a
neutral wire and carries no current. On the facts of this case, the
foresight required of the reasonable
electrician, would be of the
reasonable possibility that degradation of insulation on a neutral
wire, could injure another in his
person by coming into contact with
an un-insulated wire or conductor, carrying a live current, resulting
in a fault and a subsequent
flashover, or explosion.
[28] In the latter case
the risk of harm to the victim is a further step removed, in the
sense that there has to be reasonable foresight
of the victim not
only making contact with the neutral wire bearing degraded
insulation, but in addition there has to be reasonable
foresight that
in doing so, the wire will be moved sufficiently, for it to make
contact with an un-insulated wire or conductor,
carrying a live
current, resulting in a fault and a subsequent flashover or
explosion.
[29] Although the precise
or exact manner in which the neutral wire made contact with the live
busbars, resulting in the flashover
in the present case, need not
have been reasonably foreseeable, the general manner of its
occurrence must have been reasonably
foreseeable. In other words, it
must have been reasonably foreseeable by a reasonable electrician
that the neutral wire with degraded
insulation, configured as it was
in the panel in question, could come into contact with the live
busbars behind the busbar cover,
as a result of an individual making
contact with the neutral wire in the panel.
[30] As stated in Sea
Harvest Corporation at 840 D
“
The problem
is always to decide where to draw the line, particularly in those
cases where the result is readily foreseeable but
not the cause. This
is more likely to arise in situations where, for example, one is
dealing with a genus of potential danger which
is extensive, such as
fire …..”.
In the present case, the
result of a fault, or short on the live busbars, namely a flashover,
is readily foreseeable by a reasonable
electrician, but not
necessarily the cause, namely the neutral wire with degraded
insulation making contact with the live busbars,
as a consequence of
the neutral wire being moved in the panel.
[31] The first issue to
be examined is whether on the evidence a reasonable electrician would
have foreseen the reasonable possibility,
of the insulation on the
neutral wire becoming degraded, to such a degree that the copper core
was exposed at a point where it
was able to make contact with the
live busbars inside the busbar chamber.
[32] Mr. Neale stated
that he had observed insulation degradation, where it became brittle,
in panels such as the one in question,
where they operate at high
temperatures over a long period of time. Time was of the essence and
it did not happen in a short time.
If the insulation becomes brittle
any movement of the wire cracks it, with the result that the
integrity of the insulation is removed.
The panels were designed to
operate in a range up to 55 degrees centigrade. Above this figure he
regarded as a high temperature.
He stated that he had measured
temperatures well in excess of that in panels of the same design, as
the one in question. When there
is current flowing through the fuse
holders, they are known to transmit heat and in the enclosed space of
the fuse holders, the
heat would gradually build up. In addition,
there would be more degradation from heat, where the neutral wire
made a connection
to the neutral bar. This was because it was behind
the fuse terminals, where there was no ventilation to take the heat
away, as
contrasted with the panel, where there was greater
ventilation. He therefore stated that the situation may arise, where
the insulation
on the neutral wire in the panel would not be
degraded, whereas degradation of the insulation on the neutral wire
inside the busbar
chamber, would have occurred, out of sight. Regard
being had to the fact that the panel was in use for twenty five years
this,
in his view, was a long period of time. Mr. Colleton however
stated that the equipment in the panel had been de-commissioned five
to six years ago, and that no degradation could have taken place
during this period, as there was no heat in the panel.
[33] Considering all of
the above I am satisfied that a reasonable electrician would have
foreseen the reasonable possibility of
the insulation on the neutral
wire having become degraded, particularly where the neutral wire made
contact with the neutral busbar,
in the vicinity of the fuse holders,
which are a known source of heat.
[34] The next issue to be
considered is whether on the evidence, a reasonable electrician would
have foreseen the reasonable possibility
of the neutral wire with
degraded insulation, coming into contact with the live busbars.
[35] This issue requires
a consideration of the evidence concerning the particular
configuration of the neutral wire and the manner
of its attachment to
the neutral busbar. Mr. Neale stated that the distance between where
the neutral wire attached to the lug
on the busbar, and where it
fused, was less than one hundred millimetres. This indicates that the
fault occurred in close proximity
to where the neutral wire was
attached. He stated that if the neutral wire did not have its
insulation, it could have been dragged
across the live phase of the
busbars, causing the fault. This would obviously require tension to
be applied to the neutral wire
within the panel.
[36] Mr. Jones said that
with hindsight and in the light of the findings made after the event,
he would not work on a panel, where
the neutral wire was not isolated
from the fuse holders. Before the incident however, this had not been
a concern to him. The position
of the neutral wire was a feature of
the design of the panel and all of the panels in the sub-station, had
the same design.
[37] Mr. Campbell said it
would have been a better design if the neutral wire had been secured
closer to the busbar, so that even
if it had been manipulated, it
could not have moved and shorted against the busbar. There was no
evidence that the neutral wire
had been secured in this way, and it
was not part of the design, to be secured in this manner.
[38] Mr. Colleton
confirmed that the configuration of the neutral wire was part of the
design of the panel, all of the panels were
the same and he had never
seen anybody change the configuration of the neutral wire. He stated
that the neutral wire traversed
the live busbars, protected by its
insulation to get to the lug, where it was attached.
[39] It is in this
crucial aspect of the enquiry, namely whether a reasonable
electrician would have foreseen the reasonable possibility
of the
neutral wire, with degraded insulation coming into contact with the
live busbars, that I am mindful of the words of Scott
J A in Sea
Harvest Corporation at 842 F. The learned Judge of Appeal stated,
that with the benefit of hindsight, that which was
so remote as not
to have been reasonably foreseeable, may seem otherwise. In
considering what was reasonably foreseeable I must
guard against
“the
insidious subconscious influence of
ex post facto
knowledge”.
State v Mini
1963
(3) SA 188
(A) at 196 E – F
State v Bochris
Investments (Pty) Ltd. & another
1988 (1) SA 861
(A)
at 866 J – 867 B
Negligence is not
established by showing after an event has happened, how it could have
been prevented
State v Bochris
supra
at 867 A
As it was eloquently put,
with respect, by Viscount Simonds in
Overseas Tankship U
K Ltd.
v
Morts Dock &
Engineering Co. Ltd. (The Wagon Mound)
[1961] UKPC 1
;
[1961] 1 All ER 404
at 414 G – H
“
After the
event, even a fool is wise. But it is not the hindsight of a fool, it
is the foresight of the reasonable man which alone
can determine
responsibility”.
[40] In my view, regard
being had to the fact that the configuration of the neutral wire, was
determined by the design of the panels
and that what would have to be
foreseen by the reasonable electrician is the movement of the neutral
wire, inside the panel by
a third party, to a sufficient degree to
cause movement of the neutral wire with degraded insulation inside
the busbar chamber,
causing it to come into contact with the live
busbars, such an occurrence was not reasonably foreseeable.
Consequently, the
defendant did not owe a duty of care to the plaintiff to service and
maintain the panel in question, in such a
manner that the degraded
insulation on the neutral wire inside the busbar chamber, was
discovered before the plaintiff carried
out the specified work inside
the chamber. In addition the defendant did not act negligently in the
other respects alleged in the
plaintiff’s particulars of claim.
I am fortified in reaching this conclusion by the evidence given by
the qualified electricians,
including the plaintiff, who did not
foresee the risk of harm to the plaintiff working in the panel, posed
by the degradation of
insulation of the neutral wire, inside the
busbar chamber. This evidence is an indication of the general level
of skill and diligence
possessed by qualified electricians at the
time, to which I am entitled to have regard in assessing what harm
was reasonably foreseeable.
[41] In reaching this
conclusion I do not overlook the evidence of Mr. van der Merwe, who
was called by the plaintiff. Although,
by reference to the Electrical
Permit to Work (Exhibit “D4 – 6”), he criticised
the risk assessment as low risk
and stated that it should have been
classified as high risk, simply on the basis that the panel had not
been used recently and
was only to be used for a modification or
temporary work, he however agreed that a low RAM score was
reasonable, where a person
was going to work in a panel where there
was supposed to be no current. He also stated that the Permit should
have prescribed isolation
of the panel, because of the risk, but
agreed under cross-examination that the work the plaintiff had to do
in the panel, meaning
installation of a cable, was not unusual. He
also agreed that the work that should have required isolation of the
panel was the
work that was reserved for the defendant’s
representatives, namely the connection of the cable to the fuse
connectors. It
should be noted in this regard that Mr. Jones observed
that this connection would be done by the representatives of the
defendant,
because they were more familiar with the equipment and
“to
keep us as far away from these fuse carriers as possible”
,
and for this reason they preferred doing it themselves. In my view,
regard being had to the undisputed facts that the interior
of the
panel was isolated from the live current, and only the work to be
performed by the representatives of the defendant, would
carry the
risk of danger to live current, I do not accept his opinion that the
risk assessment was too low (in the light of the
knowledge possessed
at the time) and that the panel including the busbars should have
been isolated.
[42] In coming to this
conclusion, I also do not overlook the findings and recommendations
contained in the so called
“incident flash”
report
(Exhibit “C4”) nor the tripod investigation report
(Exhibit “C 68 to 75 B”).
[43] On the evidence it
is clear that according to Mr. Campbell the
“incident
flash”
report would come out days after the
incident, containing a very quick investigation as to what happened
and to warn the business
of what had happened. If there were any
“key
learnings”
they should be employed in the future.
The report also contained
“recommended actions”.
Mr. Colleton said that with regard to the
“key
learning”
point that
“even a tried
and tested piece of equipment can have a potential failure mode
lurking”
he and the contractors did not see
anything that could be
“lurking”,
based
on their prior experience of doing that work.
[44] As regards the
so-called tripod investigation, Mr. Campbell who was the author of
the report, stated that the object of the
report was to investigate
post accident and categorise the pre-conditions preceding the
incident, to minimise the risk in the future.
Simply put, to find out
what went wrong to prevent it from happening again. The approach was
to find out what went wrong, what
caused it to go wrong, how it could
be prevented in the future and what should be done if the incident
arose in the future. The
focus was to prevent future occurrences and
to put barriers in place to prevent a re-occurrence of the event. The
object was not
to apportion blame.
[45] In my view, the
utilisation of the findings and recommendations contained in either
the incident flash report, or tripod investigation
report, as a basis
for finding that a reasonable electrician would have foreseen a
reasonable possibility of the harm arising,
in the light of the
evidence set out above, would be tantamount to establishing
negligence, by showing after the event had occurred,
how it could
have been prevented. In doing so I would succumb to
“the
insidious subconscious influence of
ex post
facto
knowledge”.
[46] I did not understand
Mr. Pillemer S C, who appeared for the plaintiff, to argue that even
if the risk of harm complained of
was not reasonably foreseeable, the
defendant nevertheless owed a duty of care to the plaintiff, to
properly maintain and service
the panel, on the basis that the
defendant was in control of a building where dangerous conditions
existed. In other words an omission
by the defendant
“as
a species of conduct”
rather than
“an
omission (failure) to take reasonable steps to prevent foreseeable
harm (as part of the test of negligence)”.
Law of Delict –
Neethling et al
5
th
Edition – pg 120
My concern arises from
the allegation made by the plaintiff of a duty of care owed by the
defendant to all personnel working at
the sub-station and in
particular the plaintiff, to ensure that the panels were properly
maintained, free from any defects and
hazard free. In the event
however, that I have misconstrued his argument I will deal with this
issue.
[47] It is clear that
“the occupier of a building where dangerous conditions
exist has a legal duty to prevent injury to persons who visit the
premises”.
Law of Delict
supra
at pg 57
[48] In the light of the
factual finding I have made that the flashover was caused by the
neutral wire, with degraded insulation,
coming into contact with the
live busbar, it is clear that a dangerous condition existed in the
panel, the plaintiff was to do
work in. It is clear therefore that
the defendant owed a legal duty to the plaintiff to prevent injury to
the plaintiff arising
from the dangerous condition. If a legal duty
exists, injury resulting from the omission to control the dangerous
situation, is
prima facie
wrongful.
Law of Delict
supra
at pg 58
[49] In such a situation
the question is whether the defendant took reasonable steps to
prevent the loss. In other words, whether
it acted as a reasonable
person or, on the present facts
“a reasonable
electrician”.
The answer to this question will
depend,
inter alia
upon
whether the defendant knew, or should reasonably have known, about
the dangerous situation.
Law of Delict
supra
at pg 58 note 149 and authorities there cited
[50] On the evidence, it
is clear that the defendant did not know that the insulation on the
neutral wire inside the busbar chamber,
in the panel in question, had
degraded to the extent that its copper core was exposed. The crucial
issue is whether the defendant
should reasonably have known of this
defect.
[51] In such a case the
factual enquiry must be that in the event that the panel had been
properly serviced and maintained, degradation
in the insulation of
the neutral wire inside the busbar chamber would have been
discovered, the danger would have been appreciated,
the wire would
have been replaced, and the harm averted.
[52] Mr. Neale agreed
that in order to properly examine the insulation on the neutral wire
all the way up to the point where the
neutral wire is connected to
the neutral phase busbar, not only the front of the busbar chamber
would have to be removed, but also
the side of the busbar chamber,
which would entail removing all of the equipment in a panel, together
with the fuse box cover and
the fuses. This was because if only the
front of the busbar chamber was removed, one would have a very
limited view of the neutral
wire, connecting to the neutral busbar.
In either event, a complete shut-down of the sub-station would have
to take place, before
this procedure could be carried out. As pointed
out above, he also stated that a situation could arise where the
insulation of
the neutral wire in the panel was not degraded, but
degradation of the insulation in the neutral wire in the busbar
chamber had
occurred, because of the higher temperatures in the
busbar chamber.
[53] Mr. Colleton said
that during normal maintenance of the panels, it would not be
possible to see degradation of the insulation
on the neutral wire,
inside the busbar chambers. He said that maintenance work in busbar
chambers was done during shutdown periods,
which are six to seven
weeks every four to six years, because it is not permitted to open a
busbar chamber, while the busbars are
live. The minimum requirement
was to check at least ten percent of the busbars, but they attempt to
check more than that. He stated
that if they found any defect in the
ten percent of the busbars checked, they would approach the defendant
with what they had found
and they would have to open and check more
of the busbars. He stated that this type of maintenance procedure was
carried out on
sub-station CDU2, from when he started there in 1983.
After the incident they inspected all of the panels with neutral
wires of
the same type. In some cases this extended to the busbar
chambers in sub-station CDU2, but not in the total sub-station. They
found
no degradation in the insulation of any of the neutral wires
and if they had, they would have recommended a complete shutdown and
a full investigation of all busbar panels, where neutral wires
entered them. Mr. Neale however, was of the view that the fact that
the insulation on other neutral wires was found to be in order, did
not suggest anything to him, because the equipment in those
panels
may have been totally different and generated different temperatures.
[54] What this evidence
illustrates however is that it is extremely difficult to detect
degradation in the insulation of the neutral
wire inside the busbar
chambers. To check the neutral wire insulation properly, this can
only occur during a complete shutdown
when the equipment in the panel
can be removed and the busbar chamber fully dismantled. As pointed
out by Mr. Colleton, a single
day of shutdown of the sub-station has
a financial cost of millions of dollars for the defendant. It is
insufficient to simply
check the insulation on the neutral wire in
the panel, because it may differ from the insulation inside the
busbar chamber. In
addition, each busbar chamber has to be checked,
because the temperature in each panel varies depending upon the
equipment in each
panel, which affects the rate of degradation of the
insulation on the neutral wire.
[55] It is also clear
from the evidence of Mr. Easton, that it is extremely difficult to
detect heat in a busbar chamber by way
of thermography, because of
the presence of heat in the panel from other equipment. To measure
the heat in the busbar chamber was
nearly impossible. The main source
of heat was the temperature inside the panel, which affected the heat
of the busbar chamber.
[56] In my view, regard
being had to the practical difficulties inherent in examining the
insulation of the neutral wire in each
of the busbar chambers, in
each panel in the sub-station which can only be carried out during a
shutdown, the maintenance and inspections
carried out by the
defendant in this regard were reasonable. Consequently, I cannot find
that the defendant could reasonably have
known of the defect in the
insulation of the neutral wire, inside the busbar chamber, in the
panel in question. In the circumstances,
the defendant took
reasonable steps to prevent injury to the plaintiff and was not
negligent.
[57] In the result I find
that the plaintiff has failed to discharge the onus of establishing
on a balance of probabilities, that
the defendant and its servants,
acting within the course and scope of their employment, owed a duty
of care to the plaintiff on
the basis alleged, nor that they acted
negligently in the respects alleged, nor that they breached any duty
of care owed to the
plaintiff, by virtue of the defendant’s
control of the sub-station, where a dangerous condition existed. The
plaintiff’s
claim must accordingly fail. In coming to this
conclusion I am acutely aware of the traumatic experience the
plaintiff endured,
for which I have a great deal of sympathy. I
however cannot allow sympathy to influence the proper decision of the
case.
[58] Mr. Olsen S C, who
appeared for the defendant, conceded that the defendant should be
ordered to pay the wasted costs, occasioned
by the adjournment of the
trial on 28 October 2009.
The order I make is the
following:
The plaintiff’s
claim is dismissed.
The plaintiff is ordered
to pay the defendant’s costs, save and except for the wasted
costs occasioned by the adjournment
of this matter on 28 October
2009, which costs the defendant is ordered to pay.
___________
SWAIN J
Appearances: /
Appearances:
For the Plaintiff :
Mr. M. Pillemer S C
Instructed by
:
Berkowitz Cohen Wartski Durban
For Defendant :
Mr. P. J. Olsen S C
Instructed
by :
Edward Nathan Sonnenberg
Durban
Date of Hearing
:
28 October 2010 and
16, 17, 19, 20 May 2011
Date of Filing of
Judgment :
17 June 2011