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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 262/2004
In the matter between:
ESKOM HOLDINGS LTD Appellant
and
JACOB JOHANNES HENDRICKS obo
J.J.H Respondent
_____________________________________________________
Coram : SCOTT, STREICHER, BRAND, LEWIS
et MLAMBO JJA
Date of Hearing : 3 MAY 2005
Date of delivery : 27 MAY 2005
Summary: Child of 11 years climbing pylon supporting high voltage power
lines – negligence of Eskom – failure to take reasonable steps to prevent harm
to the public – especially children – anti-climbing device inadequate in the
circumstances – child attempting to touch glass insulators – shocked –
impulsive behaviour indicative of absence of delictual capacity.
____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…
SCOTT JA:
[1] On 4 August 1994 the respondent’s minor son (‘J.’) who was
then 11 years and 8 months old, sustained serious burns and other
injuries when he ventured too close to a high voltage power line
suspended from one of the appellant’s pylons. To reach the point
where the incident occurred J. had to climb to a height of
approximately 14 metres above the ground and in doing so pass
through what was referred to in evidence as an anti-climbing
device (‘ACD’). The manner in which he did this is dealt with more
fully below. The power line carried a voltage of some 66 000 volts.
Perhaps fortunately, the shock caused J. to be flung from his
perch. He survived the fall with his clothes on fire. A passer-by had
the presence of mind to cover J. with his jacket and so extinguish
the flames.
[2] The respondent, on behalf of J., subsequently instituted
proceedings for damages against the appellant (‘Eskom’), alleging
that the latter had been negligent in various respects. In this court
the debate concerning the issue of Eskom’s negligence was
confined largely to the efficacy of the ACD. Eskom denied liability
and in the alternative alleged contributory negligence on the part of
J.. The court a quo (Jacobs AJ), which was called upon to decide
only the question of liability, found that both Eskom and J. had
been negligent and that the latter had been culpae capax at the
time, ie he had had the necessary capacity to incur delictual
liability for negligence. The learned judge apportioned liability on
the basis that Eskom was two-thirds to blame and J. one-third.
These findings were all placed in issue in this court. Eskom’s
application for leave to appeal was turned down by the court a
quo, as was the respondent’s application to cross-appeal. Both
parties now appeal with the leave of this court.
[3] It is necessary at the outset to give a short description of
both the pylon and the ACD. The pylon is of the lattice variety and
is just over 21 metres high. It is square at the base, or almost
square. Steel columns at each corner taper inwards as they
ascend to a point about 14 metres above the ground. Thereafter
the columns rise vertically until just below the apex at which stage
they slope sharply inwards to form a point. The pylon has three
cross-arms, one above the other. The lowest is at the 14 metre
level. The outer ends of each support a single power line; in other
words, the tower supports six lines in all. Each is attached at the
lower end to a line of glass (or porcelain) insulators having the
appearance of glass rings which descend vertically from the end of
each cross-arm. The result is that each power line is in the region
of about a metre below the cross-arm from which it derives its
support. The four sides of the tower are braced by cross-beams.
All appear to be positioned diagonally save for three which are
below the three metre level and which are horizontal. The
significance of this feature is that the horizontal beams would
facilitate the climbing of the pylon, while the highest of the three
would appear from the photographs that were handed in to provide
a useful foothold for anyone attempting to tamper with the ACD
which is situated at the three metre level. The three cross-arms are
of a similar lattice construction. Another significant feature is the
existence of climbing pegs which were fitted to at least one of the
vertical columns from a point just above the ACD. Leaving aside
the ACD for the moment, it follows from what has been said that
the pylon is readily climbable by an aspirant climber who would
also have no difficulty traversing out to the end of a cross-arm
should he so wish. Finally, it is necessary to mention that the
pylon was situated about 150 metres from the respondent’s house
and adjacent to the Malibu High School, Blue Downs.
(4) The ADC fitted to Eskom’s pylons is a standard design. It
takes the form of a horizontal fence of barbed wire and in
appearance, at least, is a formidable barrier. As required by the
Code of Practice for Overhead Power Lines (the NRS Code), it is
installed as low as possible but ‘not less than three metres above
the ground’. It is constructed as follows. A horizontal bar is
mounted diagonally at each corner of the tower so as to extend
both outwards and inwards. In other words, the bar extends both
beyond and within the frame of the tower. Ten grooves are cut into
the bar on its upper side; five on the inside of the frame and five on
the outside. These are cut at an angle outwards, ie away from the
corner column to which the bar is attached. A length of barbed wire
is fastened at the one end to one of the bars and then threaded
into the grooves and drawn from one bar to the next around the
structure 10 times before being fastened to the bar at which the
process began. The result is a horizontal fence with five strands of
barbed wire both on the inside and outside of the tower.
[5] The design of the device would appear to contemplate the
barbed wire being so taut that the angle at which the grooves are
cut would prevent the wire from being pushed out of one of the
grooves. If this were to happen the wire would go slack and the
gap between the strands could easily be increased so as to permit
a person to pass through the device with relative ease. There was
much debate concerning the efficacy of the device in evidence,
which is unnecessary to traverse. What emerged is that while the
design may have been good in theory, in practice it could not
easily be implemented because of the difficulty associated with
achieving the necessary tension on the barbed wire. As pointed
out by Professor Reynders, an electrical engineer who testified on
behalf of the respondent, the reason for this was that when
attempting to pull the wire taut around the tower, the barbs would
tend to catch in the grooves resulting in some slackness. If, of
course, the barbed wire were to be affixed to the bars at each
groove, whether by means of binders (short lengths of wire) or
otherwise, the device would not have this weakness.
[6] Against this background I turn to the events of 4 August
1994. After returning from school in the early afternoon, J., his
younger brother and younger friend, decided to take the family dog
for a walk. At some stage they found themselves on a footpath that
passes by the pylon. J. testified that he then challenged
his companions to a race to see who could first climb the highest
up the pylon. Possibly what he had in mind at that stage was to
climb up as far as the ACD, but this was not clarified in evidence.
He said that when he reached the ACD, he saw how the wire was
spanned and that it could be pushed out of the grooves. Using
both hands he pushed it first out of one groove, whereupon it went
slack, and then out of another two. Testifying eight years later, he
described the process as ‘taamlik maklik’. He said he then had no
difficulty climbing through the ACD and, using the climbing pegs,
proceeding up to the first of the three cross-arms. At that stage, as
he put it, he stopped to rest. While sitting there, the glass
insulators caught his eye. He described them as ‘greenish-
coloured glass saucers’. Out of curiosity he traversed out to the
end of the cross-arm and resolved to touch one to feel its texture.
Holding on to the structure with his right hand he reached out to
the insulators with his left when, as he described it, there was
suddenly a blue flash and he fell to the ground. Judging from J.’
injuries the experts were satisfied that what in fact had happened
was that his head had come too close to the power line suspended
from the cross-arm immediately above. The voltage was such that
the current had ‘jumped’ the space between the power line and his
head in a phenomenon known as a ‘flash-over’. For this to have
happened, it was agreed that he must have come within a distance
of some 66 mm of the power line.
[7] The ease with which J. negotiated his way through the ACD
and proceeded up the tower is largely corroborated by Mr Henry
Plaatjies who was called by Eskom and who was the only witness
to have actually observed the incident. Plaatjies was then a
teacher at the Malibu High School where he taught accounting and
economics. (This was not the school attended by J..) He testified
that on the day in question while standing in the school grounds
talking to a colleague, he observed, as he perceived it, a child
being chased by others. The next thing he saw, he said, was the
one ahead proceeding to climb the tower with the others coming
on behind. Although he looked away at one point while
commenting to his colleague on how dangerous it was and did not
see J. actually negotiate his way through the ACD, his overall
impression was that it all happened very quickly and that J.’
progress up the tower was virtually continuous. On seeing the
flash and J. fall Plaatjies went to phone an emergency service
while his colleague went to J.’ assistance.
[8] Section 26 of the Electricity Act 41 of 1987 provides:
e26. 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.’
It is common cause that Eskom is an ‘undertaker’ as defined in the
Electricity Act and that J.’ injuries were caused by means of
electricity transmitted by Eskom’s ‘plant or machinery’ in the form
of the high voltage power lines. The effect of the section therefore
is that Eskom bore the onus of proving on a balance of
probabilities that it was not negligent or, if it was, that there was no
causal link between that negligence and the injuries sustained by
J.. It was also common cause that in the event of Eskom being
found to have been negligent, its conduct would have been
wrongful. In other words, Eskom owed a legal duty to would-be
climbers of its pylons to act without negligence, ie to take such
steps, if any, as may have been reasonable in the circumstances
to prevent them from suffering harm. (See Gouda Boerdery BK v
Transnet Ltd [2004] 4 All SA 500 (SCA) para 12.)
[9] was conceded both in this court and in the court below that a
reasonable person in the position of Eskom would foresee that
persons, especially children, might climb Eskom’s lattice-type
pylons and come close enough to the power lines to put
themselves in danger of receiving a shock. This concession was
inevitable in view of the provisions of Regulation 16 of the
Electrical Machinery Regulations (promulgated under the
Machinery and Occupational Safety Act 6 of 1983 and continuing
to apply under the Occupational Health and Safety Act 85 of
1993). The regulation which is of direct application to Eskom
reads:
eThe user shall ensure that all supports of the lattice type which
are used to carry overhead conductors are adequately protected in
order to prevent any unauthorised person from coming into
dangerous proximity of the conductors by climbing such supports,
and an inspector may require a user to protect a support of any
other type similarly.’
(By way of explanation it is necessary to record that the reference
to ‘supports of the lattice type’ is a reference to what I have called
‘pylons’ of the lattice type. Similarly the reference to ‘conductors’ is
a reference to what I have called power lines.) A similar provision
is to be found in the NRS Code. It is unnecessary to quote the
provision in full. It is sufficient to note that it requires that pylons of
the type in issue ‘shall be adequately protected to prevent
unauthorised persons from reaching a live conductor’. The
installation of the ACD is, in any event, a clear indication that
Eskom was in fact alert to the possibility of harm to members of
the public if they climbed the pylons.
[10] What remains of the inquiry regarding Eskom’s alleged
negligence, therefore, is what is generally referred to as the
second leg of the inquiry, namely whether a reasonable person
would have taken steps to guard against the danger and, if so,
whether the steps taken by the defendant were reasonable in the
circumstances. What is to be regarded as reasonable must
depend upon a consideration of all the relevant circumstances. It is
inappropriate to place any limitation on these, but the inquiry would
ordinarily involve a consideration of:
e(a) the degree or extent of the risk created by the actor’s
conduct; (b) the gravity of the possible consequences if the risk of
harm materialises; (c) the utility of the actor’s conduct, and (d) the
burden of eliminating the risk of harm.’
See Ngubane v South African Transport Services 1991 (1) SA 756
(A) at 776H-J. Ultimately the court is obliged to make a value
judgment by balancing various competing considerations. But if a
reasonable person would have done no more than was in fact
done there would be no negligence.
[11] Before considering the effectiveness or otherwise of the ACD
it is necessary to deal briefly with a ground of negligence which
was found by the court a quoto have been established and which
was touched upon only in passing in this court. The ground
concerned Eskom’s failure to place a warning sign at the foot of
the tower indicating the presence of live conductors. The sign
envisaged was the well-known one depicting a flash of lightning.
While the Electrical Machinery Regulations require notices to be
displayed in certain specified circumstances, there is no
requirement that a notice be displayed on pylons. Counsel for the
appellant contended that the reason for this was that as a general
proposition it was common knowledge that pylons carried
electricity. He pointed out that where notices were required by the
regulations, the circumstances were such that there was a danger
of accidental contact resulting from a person not expecting the
presence of a bare conductor. He argued that if the standards
adopted in the industry do not require warning signs in a particular
location, the inference may be drawn that this was not a step
which a reasonable person would take to avoid harm. There is no
doubt much to be said for counsel’s contentions, but for the
reasons that follow it is unnecessary to consider further the
question of warning signs.
[12] The debate in this court as to whether Eskom was negligent
or not ultimately centred around whether the ADC it installed on
the pylon in question was one which was reasonable in the
circumstances. As I have indicated, both the NRS code and the
Electrical Machinery Regulations require lattice-type pylons to be
‘adequately protected’. However, neither provides an indication of
what is to be regarded as adequate. Nonetheless, this requirement
of the industry does provide some assistance.
[13] It was emphasized in evidence and argued before us that it
would be virtually impossible to erect a barrier that was
impenetrable. That is no doubt so, but it is not suggested that the
ACD should have been impenetrable. In the present case, J. was
able to pass through the ACD simply by pushing the wire out of the
grooves. He required no tool to do so, not even an ordinary pair of
household pliers. The evidence suggests that the device hardly
retarded his progress up the tower. Some eight years later,
Professor Reynders, who described himself as about to retire, was
similarly able to push the wire out of the grooves and climb through
the device ‘without any difficulty’. The angle at which the grooves
were cut is indicative of a design that was intended to prevent the
device from being dismantled in this way. But whether it was
possible to do so by reason of faulty design or improper installation
need not be decided. The point is that although formidable in
appearance, the device in reality did not constitute an effective
barrier. Nor could it be contended that, although properly installed,
the wire had become slack with the passage of time. Mr Arthur
Gullan, a former employee of Eskom who gave evidence on its
behalf, testified that the wire would not become slack of its own
accord. In the circumstances, the device installed by Eskom
cannot in my view be regarded as having ‘adequately’ protected
the pylon within the meaning of the regulations and the NRS code.
If for any reason the barbed wire could not have been made
sufficiently taut, it would have been a simple matter to affix it to the
horizontal bars at each groove. This could have been done at very
little cost and effort. Perhaps the simplest (but not the only)
method would have been to use binders of the kind that one
encounters in an ordinary fence. In that event, a child, or other
aspirant climber, would at least have had to go to the extent of
arming himself with a tool of some kind to dismantle the device. In
my judgment a reasonable person would at least have ensured
that the ACD could not be dismantled simply by pushing the wire
out of one or more of the grooves. Indeed, it is not without
significance that in the case of the devices fitted to the pylons
belonging to the Cape Town City Council, the strands of barbed
wire are made fast to the horizontal bars so that they can not
simply be pushed out of the way.
[14] It follows, therefore, that in my view Eskom failed to rebut the
presumption of negligence. On the contrary, negligence on its part
was established on the evidence. Eskom’s appeal must
accordingly fail.
[15] I turn now to the cross-appeal. The first and, in my view,
decisive issue is whether the court a quo was correct in its finding
that J. was culpae capax in relation to his conduct. In Weber v
Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) this
court affirmed the distinction previously drawn in Jones NO v
Santam Bpk 1965 (2) SA 542 (A) between, on the one hand, the
issue of capacity on the part of a child to commit a wrong and, on
the other, the issue of fault. In doing so, it declined to follow a view
widely held, particularly in academic circles, that there was a need
to introduce a subjective element into the concept of negligence in
the case of children by requiring no more than a degree of care
expected of a child of the age and maturity of the one in question.
Instead, the court in Weber held that the first inquiry, ie as to
capacity, was subjective, while the second, ie as to fault, was
objective. In other words, once a child was found to have the
necessary capacity, its negligence or otherwise, was to be
determined in accordance with the standard of the ordinary (adult)
reasonable person.
[16] Following an exhaustive analysis of the Roman and
subsequent authorities by both Jansen JA and Joubert JA (whose
separate judgments were concurred in by the other three judges)
the court affirmed the rule that infantes (children under seven
years of age) are culpae incapax while, more significantly, children
between the ages of seven and puberty (12 in the case of girls
and 14 in the case of boys) were presumed to lack capacity until
the contrary was proved by the party alleging negligence. (The
existence or otherwise of the presumption was not decided in the
Jones case, supra at 552A-C.) In passing, it is worthy of note that
this gender-based distinction between girls and boys may well be
unjustifiable. The more appropriate cut-off point would seem to be
14 years for children of both sexes, as would appear to be the
case in the criminal law. See eg Rex v K 1956 (3) 353 (A);
Attorney-General Transvaal v Additional Magistrate for
Johannesburg 1924 (AD) 421 at 434.
[17] The application of an adult standard in judging the
negligence of a child has been strongly criticized. (See eg J D van
der Vyver SALJ 100 (1983) 575; Andrew Caiger (1983) 46
THRHR 477; Boberg The Law of Delict at 679.) Nonetheless, the
force of the criticism is to some extent overcome by the emphasis
placed by the court in Weber on the subjective nature of the inquiry
into the element of capacity. It was stressed (at 389H-400A) that
the inquiry was one of fact. In each case what had to be
determined was whether the child in question had developed the
emotional and intellectual maturity to appreciate the particular
danger to be avoided and, if so, to act accordingly. Jansen JA (at
390H) referred with approval to the observation by Corbett JA in
Roxa v Mtshayi 1975 (3) SA 761 (A) at 766A-B that the enquiry
had to be related to ‘the particular acts or omissions complained of
in the particular circumstances’. In the passage referred to, Corbett
JA added:
eIt is not capacity in the abstract but capacity in relation to a
particular duty situation that is of relevance.’
In the Weber case Jansen JA (at 400B-E) warned against over-
emphasising the intelligence and schooling of the child as opposed
to the inherent weaknesses associated with tender age and the
propensity of children, however well schooled, to commit irrational
and impulsive acts. (See also the remarks of Joubert JA at 410D-
E.) Experience revealed, Jansen JA said (at 400C-D) that although
children may be able to distinguish between right and wrong, they
will often not be able to act in accordance with that appreciation;
they became so engrossed in their play that they become oblivious
of other considerations and acted impulsively. The learned judge
accordingly warned against ‘placing an old head on young
shoulders’. (400F-G.)
[18] The correctness of the decision in Weber was not challenged
in this court or the court below. The issue to be determined,
therefore, is whether Eskom succeeded in discharging the burden
of rebutting the presumption against capacity. The court a quo
dealt with the issue as follows:
eI am of the view that J. had the necessary delictual capacity on
the day in question. This conclusion is manifested by the evidence
of J. who testified that he decided to race his brother to see who
could climb the highest. J. was approximately 11 years and 8
months old at the time when the incident occurred. J. was also
taught by his parents of the dangers of electricity although his
parents did not deem it necessary to inform him of the particular
dangers associated with the pylon.’
I am unpersuaded that the reasoning of the learned judge justifies
the conclusion to which he came.
[19] From what has been said above, it is clear that the enquiry
must in each case be related to the particular conduct which gave
rise to the loss forming the subject matter of the claim. It is
necessary therefore to return to the facts. There can be no doubt
that J. appreciated that by climbing beyond the ACD he ran the
risk of falling and hurting himself. Experience tells one that the fear
of falling from a height is one that develops early in childhood and
the risk of such a fall is unlikely to be one that would be taken
impulsively and without regard to the possible consequences.
Indeed, this much was conceded by J. in evidence. Had he simply
lost his footing and fallen Eskom, would, therefore, have had little
difficulty in rebutting the presumption. But that is not what
happened. The evidence was that while walking the dog and on
coming to the pylon, J. and the other two decided to race to see
who could climb the highest. J. climbed to the cross-arm and
stopped. The other two were then still close to the base. It was at
that stage that the glass insulators attracted his attention. They
had nothing to do with the race and the reason for J. climbing the
tower. Fascinated by the insulators and disregarding the race, he
then proceeded to traverse out along the cross-arm in order to
touch one of the insulators for no better reason than to feel its
texture. It was this conduct that resulted in his injuries and it
follows that it is in relation to this conduct that his emotional and
intellectual maturity must be assessed.
[20] It is hardly necessary to observe that J.’ attempt to touch one
of the insulators was foolhardy in the extreme. Its only purpose
could have been to satisfy his curiosity. His conduct gives rise to
two possible inferences: either he did not appreciate the danger to
which he was exposing himself or its possible consequence, or his
curiosity was so overwhelming that he became oblivious of the
danger and succumbed to an impulse to touch one of the
insulators. The only other possibility is that he was fully aware of
the danger but was unconcerned by it. This is highly unlikely; it
would amount to a conscious disregard for his own life.
[21] J. testified that it was only after the event that he learnt that
the pylons supported live electricity wires. This strikes me as
improbable. The most likely inference arising from his conduct
would seem to be that he lacked an appreciation of the full import
of the danger and became so engrossed in his fascination for the
insulators that he forgot all about the danger of which he may have
been aware.
[22] An analysis of the facts reveals, therefore, that J.’ conduct
giving rise to his injuries was typical of the impulsive behaviour in
which children of tender age sometimes engage and which Jansen
JA had in mind when he warned against placing an old head on
young shoulders. In my view, the very conduct in question is
indicative of an inability on the part of J. to act in accordance with
any appreciation he may have had of the danger involved.
[23] It was established in evidence that at the time of the incident
J. was at primary school in grade five and that he had been taught
the dangers of electricity. But there was little, if any, cross-
examination of J. himself or his parents to determine his
intellectual and emotional maturity at the time, nor was any
evidence led to rebut the inference of childish impulsive behaviour
that arose from his conduct or, for that matter, to assist in the
determination of the issue of his maturity. In all the circumstances,
I am unpersuaded that Eskom succeeded in rebutting the
presumption that J. was culpae incapax at the time of the incident.
It follows that the cross-appeal must succeed.
24] The following order is made:
(a) The appeal is dismissed with costs, including the costs
of two counsel.
(b) The cross-appeal is upheld with costs, including the
costs of two counsel.
(c) The order of the court a quo is altered so as to read as
follows:
(a) The defendant is held liable for the damages, if
any, that the plaintiff’s minor son, J., is
found to have suffered in consequence of the
electric shock the latter sustained on 4 August
1994;
(b) The defendant is ordered to pay the plaintiff’s
costs of suit occasioned by the hearing on the
merits, such costs to include the qualifying fees
of those experts who testified at the trial on
behalf of the plaintiff.
_____________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
STREICHER JA
BRAND JA
LEWIS JA
MLAMBO JA