Fry v Huletts Aluminium (Pty) Ltd (6670/03) [2009] ZAKZPHC 43 (25 September 2009)

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[2009] ZAKZPHC 43
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Fry v Huletts Aluminium (Pty) Ltd (6670/03) [2009] ZAKZPHC 43 (25 September 2009)

REPORTABLE
IN THE
KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No.
6670/03
In the matter between
RUBEN ANTHONY
FRY
Plaintiff
and
HULETTS
ALUMINIUM (PTY) LIMITED
Defendant
J U D G M E N T
Delivered:
25
September 2009
INTRODUCTION
[1]
In
this matter plaintiff instituted an action against the defendant for
damages suffered as a result of an explosion and subsequent
fire at
the defendant’s premises. The court is required to determine the
issues relating to whether the defendant’s actions
were negligent
and as well as the factual cause of the explosion.
BACKGROUND FACTS
[2]
At
the time of the incident, plaintiff was employed as a qualified
welder for an engineering firm known as Rallin Engineering. On
the
morning of the 13
th
February 2002, the plaintiff along with four other co-workers (‘the
team’) attended the premises of the defendant for the purposes
of
inserting a valve between two pipelines, as was required by the
defendant.
[3]
Defendant
engages in the process of rolling aluminium at its rolling mill, and
the two pipelines in question contained Shell Sol
D100 oil that was
used in the rolling process. The team had brought with it cutting and
welding equipment which was brand new.
Upon arrival, they were issued
with a Hazard Clearance Certificate, as is required by the
General
Safety Regulations
1
of the Occupational Health and Safety Act
2
,
by an employee of the defendant, Mr Van Der Mescht. Van der Mescht
also examined their equipment and was satisfied therewith.
[4]
The
team then proceeded to the basement of the rolling mill S6, in which
the pipes were situated. According to the plaintiff, the
area was
then hosed down in order to flush oil from the floor gratings, and
wet cardboard was placed over the panels. A hole was
then cut into
each of the pipes, with the equipment that the team had brought with
it. After these holes had been cut, it was discovered
that the valve
that was to be fitted either needed to be assembled, or was in fact
the wrong one. The team then proceeded up to
the ground floor in
order to assemble the valve.
[5]
Some
five hours later, the team, along with Van Der Mescht, returned to
the basement in order to proceed with the fitting of the
valve.
However, it was then discovered that oil had been dripping from one
of the pipes. Nevertheless, a member of the team, Mr
Houston, climbed
up onto the other pipe in order to fit the valve. Around the same
time, Van Der Mescht returned to the ground
floor to determine on the
computer system whether the valve in the leaking pipe was in fact
closed.
[6]
Mr
Houston, upon discovering the hole in the other pipe wasn’t
suitable, decided to enlarge it. However, as he struck his flint
to
light his torch, an explosion occurred. As a result of the explosion
and ensuing fire, Mr Houston was killed and plaintiff suffered
burns
as well as dislocated shoulder
STATUTORY DUTY AND THE OCCUPATIONAL
HEALTH AND SAFTEY ACT AND REGULATIONS
[7]
In
seeking to hold the defendant liable, the plaintiff argued that the
Regulations place on the defendant a statutory duty towards
him and
such duty has been breached. The requirements to be proved in regard
to such a duty have been set out by Professor McKerron
in
The
Law of Delict
3
and accepted as such in
Da
Silva & Another v Coutinho
4
and
Lascon
Properties (Pty) Ltd v Wadeville Investments CO (Pty) Ltd and
Another
5
.
[8]
These
requirements include that the plaintiff must prove that he or she is
a person to whom the benefit of the duty was imposed.
6
In
Du
Pisanie
v
Rent-A-Sign and Another
the
extent of such duty in terms of the Regulations was considered and
found to only impose the duty on an ‘employer’ for the
benefit of
employees. The court said that the wording of the regulations did not
suggest that an independent contractor or his
workmen would fall into
the category of persons covered by the duty.
7
Consequently, plaintiff, as an employee of an independent contractor,
would not be a beneficiary of any duty arising from the regulations.
NEGLIGENCE
[9] T
he
test for negligence was laid out in
Kruger
v Coetzee
8
as follows:
(a) whether
a reasonable person in the position of the defendant –
(i)
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
whether
the
defendant fail to take such steps.
[10]
Plaintiff
essentially argues that the defendant was negligent in that it failed
to take reasonable steps to avoid the harm to plaintiff
in two ways:
by not identifying the basement at
the mill as a ‘confined space’ in terms of the regulations; and
by issuing a hot hazard certificate
to the team when it was not safe to do so.
Confined Space
[11]
In
terms of Item 5 of the Regulations, certain steps are required to be
undertaken before work can be undertaken in a confined space,
which
includes the testing of the air in the area. The Regulations define a
confined space 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 an oxygen-deficient atmosphere
may occur, and includes any chambers, tunnel,
pipe, pit, sewer,
container, valve, pump, sump, or similar construction, equipment,
machinery or object in which dangerous liquid
or dangerous
concentration of gas, vapour, dust or fumes may be present.’
[12]
The
regulations require the air in such space to be tested
9
,
and if that is not possible, the space is to be purged, ventilated,
and isolated from all openings by the shutting of valves that
are to
be locked and fastened with chains and padlocks. The regulations then
go on to require that breathing apparatus be used
if these steps
cannot be taken. Furthermore, these requirements may also apply to an
area bordering or alongside any confined space,
and that all persons
have to vacate the space once the work is completed.
[13]
It
is difficult to imagine how these requirements could be applied in
the case of the defendant’s basement. Although the photographs

handed in as Exhibit D depict an area that is restricted and narrow
where the work was being undertaken, the basement itself runs
almost
the entire length of the mill, has several access points, has a
ceiling that partly consists of grates which are open to
floor above
and indeed constitute the floor of the ground level. For the
defendant to take all these steps required of it in terms
of the
regulations if the basement were a ‘confined space’, would be an
impractical expectation and as such, it is doubtful
whether the
legislature would have intended a basement such as the defendant’s
to be so defined.
Issuing of the
Hazard Clearance
Certificate
[14]
Regulation
5(4) requires that where welding work is to be done in respect of any
tube, tank, drum, vessel or similar object that
is completely closed
and that contains a substance that may explode or ignite, an
authorised person has to certify that such danger
has been removed
before the work can be undertaken.
[15]
The
Hazard Clearance Certificate was issued to the team upon their
arrival at the mill. It stated,
inter
alia
,
that valves and pipeline leading to the area had been closed and
locked out, that the pipes had been drained and that the oil
had been
washed away. However, this had obviously not been properly done as on
the evidence of both the plaintiff and Van Der Mescht,
the area
required to be hosed down and indeed was done so both before the work
began in the morning, and around midday by Mr Van
Der Mescht himself.
Also the presence of the dripping oil when the team returned to the
basement indicates that either the pipes
had not been sufficiently
drained, or the valves had not been suitably closed. In either case,
what was stated to have been done
had in fact not been done, and the
certificate had therefore been issued incorrectly.
CAUSATION
[16] The second
issue before court is the cause of the fire. In this respect, the
parties each led their own expert witness to support
their differing
versions.
[17]
Plaintiff
alleges that the explosion was caused by the ignition of oil vapours
that had leaked out of the pipe into the basement.
In support of
this plaintiff lead the expert evidence of Mr Carr.
[18]
Carr
is a natural scientist with a specialisation in chemistry. He has
substantial and extensive history and experience with the
workings of
rolling mill such as the defendant’s. He testified that Shell Sol
D100 contained numerous materials, some of which
have lower
flashpoints than others. When exposed to continuous heat and
pressure, the Shell Sol D100 oil degrades, losing the material
with
the lower flashpoint first. Small vapours then form at the rolling
mill, which travel down into the pan beneath the mill and
into a
dirty oil tank. When this tank is then drained, a small but
sufficient amount of vapour is left behind, which could then
roll
down the pipe once the holes were drilled.
[19]
Although
these vapours are heavier than air, he said that the matter was more
complex than to just say that because of this the
vapour would
accumulate on the floor. However, he did not explain how or why. In
any event, he noted that Mr Houston had been burnt
more around his
legs than his head which would be consistent with the vapour coming
out of the pipe on which Mr Houston was sitting,
and then descending.
Furthermore, the fire had been contained to the basement. He pointed
out that the data sheet on Shell Sol
D100 issued by the Shell
Corporation warns against welding any container containing such oil,
which must be drained thoroughly.
[20]
However,
Mr Carr conceded that he has not had knowledge of the conditions of
the workings of this particular mill since the mid-1980s.
He did not
calculate what percentage of the oil would have the lower flashpoint,
but estimated it to be around one to two percent.
He also testified
that given the size of the pipe, it was less likely that this would
be sufficient area for gas vapours to collect,
but that the Shell
Corporation nevertheless warns against it.
[21]
Defendant
argued that the explosion was more likely caused by the ignition of
the acetylene in the pipes of the cutting and welding
equipment used
by the team. To support this, it led the evidence of Dr. Froneman.
[22] F
roneman
testified that he has investigated approximately 2000 fires, and that
around 20 per cent of these involved accelerants.
He conducted tests
of samples of the oil taken from the mill, and determined that the
flashpoint of the oil was 105 degrees Celsius
, which was consistent
with both the Shell data sheet and other tests conducted by the GCMS.
He then added that it is only at this
temperature that the oil
vapours become dangerous.
[23]
He
further testified that where the plant was operating at 30 degrees
Celsius, the oil was not going to produce any volatile compounds.
He
confirmed the oil vapours would be heavier than air, and therefore
descend, unlike acetylene which is lighter than air. Furthermore,

given the design of the pipes in the mill, in order for the vapour to
reach the point on the pipes where the holes were made, the
vapour
would have to ascend up the pipe to the holes.
[24]
He
added that as soon as acetylene turns into a vapour, it expands 22
000 times. It burns immediately, and it is easy for acetylene
to form
a cloud. Furthermore, the description of the plaintiff of a sudden
rolling ball of flame is more consistent with acetylene
burning. He
also testified that according to his calculation, if the pan were
coated with a maximum amount of oil after draining,
this would only
produce 400ml of oil vapour.
[25]
However,
Froneman’s experience is not as extensive as Professor Carr’s,
and has largely been laboratory based. Furthermore,
he is not
familiar with the workings of a roll mill, and this was the first
time that he had investigated a fire at such a mill.
He first
attended the mill several weeks after the fire, and based his tests
on ambient temperatures, which Carr said that the
mill was not
operating on at the time, which in turn was based on the statement of
the plaintiff that the oil was ‘lukewarm’
when it was dripping
from the pipe. He relied on the defendant for much of his
information, without checking this. Finally, the
evidence was that
for acetylene gas cloud to have formed, the gas would have had to be
leaking for some time.
[26]
On
this evidence, it would seem that the two versions postulated by the
parties are of equal probability. Although, the plaintiff
has
established how the oil vapours would have formed, it does not
explain how they overcame the physical necessity of having to
travel
up the pipe in order to reach the holes, contrary to its nature.
Furthermore, the evidence is that the explosion occurred
at the
ceiling, but did not travel back along the pipes as would be expected
if the oil vapour was the cause of the explosion.
[27]
However,
the defendant’s version, does not explain how a sufficient amount
of acetylene would have accumulated in the basement
prior to the
explosions. It also does not explain why there were no problems when
the team cut the pipes earlier in the day, or
why the acetylene gas,
which has a particularly noticeable smell, was not noticed by any
persons if it had indeed been leaking.
[28]
Where
the two versions before court are of equal probability and a court is
unable to determine which version is the most probable,
and there are
no independent facts on which to rely or persuade to accept one over
the other, the court must decide in the favour
of the defendant.
10
Plaintiff therefore, has been unable to establish on a balance of
probabilities that the fire was caused by the ignition of the
oil
vapours.
[29] In the circumstances the action
is dismissed with costs.
TSHABALALA JP
_______________________________
Dates of
Hearing: 4
th
& 5
th
May 2005
29
th
August 2005
8
th
May 2007
27
th
28
th
& 29
th
August 2007
7
th
September 2009
Date of
Judgment: 25 September 2009
Counsel for Plaintiff: Mr. F.M.
Moola, SC
with him Ms J.M.Singh
Instructed by: Volsum, Chetty &
Lax
Counsel for Defendant Mr. A.J.
Troskie, SC
Instructed by: Cox Yeats
1
GN R1031 in GG 10252 of 30 May 1986
2
Act 85 of 1993
3
Mckerron
The Law of
Delict
7ed 276-281
4
1971 (3) SA 123
(A)
5
1997(4) SA 578 (W)
6
Da Sliva;
Mckerron
7
Para 15
8
Kruger v Coetzee
1966 (2) SA 428
(A)
9
Regulation 5(4)
10
See Tshikomba v Mutual & Federal Insurance Cp
Ltd
1995 (2) SA 124
(T) at 129D;
H
Mohammed & Associates v Buyeye
2005 (3) SA 122
(C) at 129B