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[2013] ZAWCHC 104
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Peacocke v Neil Muller Construction (Pty) Ltd and Others (25785/09) [2013] ZAWCHC 104 (7 August 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case
No
25785
/09
In
the matter between:
VINCENT
HUMPHREY PEACOCKE
..........................................................
Plaintiff
and
NEIL
MULLER CONSTRUCTION
(PTY) LIMITED
....................................................................................
First
Defendant
ELECTRICAL
RETICULATION
COMPANY (PTY) LIMITED
.........................................................
Second
Defendant
OLD
MUTUAL LIFE ASSURANCE
COMPANY (SA) LIMITED
...............................................................
Third
Defendant
and
ELECTRICAL
RETICULATION
COMPANY (PTY) LIMITED
............................................................
First
Third Party
TENTRON
ENGINEERING MANAGE-
MENT SERVICES CC
...................................................................
Second
Third Party
NEIL
MULLER CONSTRUCTION
(PTY) LIMITED
................................................................................
Third
Third Party
Court:
Griesel J
Heard:
4, 5, 6, 10 June & 25 July 2013
Delivered:
7 August 2013
____________________________________________________________________
JUDGMENT
____________________________________________________________________
Griesel J:
Introduction
This
is an action for damages for personal injuries sustained by the
plaintiff in an incident that occurred on Sunday, 11 February
2007
on a building site at Cavendish Connect which forms part of the
Cavendish Square shopping centre in Claremont, Western
Cape.
In
his particulars of claim, the plaintiff pleaded that on the day in
question and whilst engaged in construction work at the
above-mentioned site he ‘was electrocuted by electrical
cables whilst guiding a steel beam into position on the first
floor
as a result of which he lost his balance and fell from the first
floor to the ground floor of the premises’. He
sustained
fairly serious bodily injuries as a result of the fall and has
cited three defendants in the alternative, claiming
that one or
more or all of them are liable for the damages sustained by him.
The
third defendant, Old Mutual Life Assurance Company (Sa) Limited
(‘Old Mutual’), is the owner of the shopping
centre in
question. During 2006 it was planning certain alterations and
renovations to its Cavendish Connect shopping centre
and to this
end it concluded a contract with the first defendant, Neil Muller
Construction (Pty) Limited (‘NMC’),
to act as principal
contractor for the project. Subsequently, Old Mutual instructed NMC
to appoint the second defendant, Electrical
Reticulation
Company (Pty) Limited (‘ERC’), as the selected
sub-contractor responsible for the electrical
services on the
project. During January 2007, NMC concluded a written sub-contract
with Tentron Management Services CC (‘Tentron’)
for the
supply and fixing of metalwork to the project. The plaintiff was
employed by Tentron at the time of the incident. Tentron
has in the
meantime been liquidated and its liquidator abides the decision of
this court.
All
three defendants deny liability for the plaintiff’s damages.
They pleaded
inter alia
that the plaintiff’s injuries
were caused by his own negligence. In the alternative, they pointed
fingers at one another.
Thus, NMC has issued third party notices
against ERC (as first third party) and against Tentron (as second
third party), claiming
that it be indemnified against the
plaintiff’s claim in terms of the sub-contracts concluded
between them only in the
event of a finding of liability against
NMC. Old Mutual, in turn, has issued a third party notice against
NMC (as third third
party), claiming from NMC an indemnity in terms
of the principal building contract in the event of a finding of
liability against
Old Mutual.
By
agreement between the parties the question of liability, if any,
for the plaintiff’s damages is the issue calling for
resolution at this stage, with the quantum of the claim standing
over for later determination (if necessary).
Factual causation
Before
the respective degrees of negligence (if any) on the part of the
defendants can be considered, it is necessary to try
and establish
the exact cause of the plaintiff’s injuries. The plaintiff
himself could offer only limited assistance
in this regard. In
support of the allegations as pleaded, the plaintiff testified that
because the project was behind schedule,
it had been arranged that
Tentron would work on the Sunday in question, installing steel
I-beams so that concrete could be
poured during the following week.
Before he and his crew could commence work, they had to wait for
ERC to move certain electrical
cables out of the way. This was
eventually completed between 13h00 and 14h00, after which he was
assured by Mr Sylvester on
behalf of ERC that the site was safe for
them to commence their work. The plaintiff himself did not carry
out any physical
work. Instead, he was supervising the installation
of a steel I-beam from the first floor, approximately 4 4.5m
above
the area where three co-workers were working. He was sitting
on the edge of the concrete slab, holding onto one of the steel
stanchions of the safety rail, with his legs hanging over the edge
of the slab. His upper body was behind the safety rail and
he did
not feel that there was a risk of falling, hence he did not utilise
a safety harness. The I-beam in question was hanging
onto three
chain blocks that were hoisting it into position. He testified:
‘
As
it was going into position, I reached out and touched one of the
chains that were holding the beam. I received a shock. After
that
time I do not remember anything.’
When
asked how the incident occurred, he testified: ‘The steel
beam had touched one of the cables and had become alive.’
He
conceded, though, that he did not see the beam touch any wire. He
surmised that the beam must have hit one of the cables
and gone
through the insulation, thereby causing the cable to become ‘live’.
Although the plaintiff does not recall
falling, it is common cause
that he did in fact fall and ended up on the ground floor.
Thereafter he was unconscious with ‘momentary
awareness’
from time to time. He was hospitalised and regained consciousness
the next day, but he was still ‘pretty
dazed’, with
little or no personal recollection of events when he spoke to
Mr Michael Clarke of Tentron later that
day.
He
sustained various orthopaedic injuries as a result of the fall, but
suffered no burns or burn related injuries. The nature
of the
injuries was in consequence of the height and the fact that he fell
without a safety harness.
Other
than his own evidence, the plaintiff did not present any other
viva
voce
evidence to prove how he sustained his injuries.
1
Hearsay
In
order to fill in the gaps in the narrative, the plaintiff relied
heavily on a report of his erstwhile supervisor, Mr Clarke,
who
passed away in the meantime. It is dated 19 February 2007 and is
addressed to the ‘senior site manager’, Mr
Dale Gay of
NMC. It forms part of Exh A that was placed before the court, in
respect of which it was agreed at a pre-trial
conference that the
documents ‘are what they purport to be and copies thereof may
serve as evidence without further proof,
subject to any party’s
right to challenge the correctness of the contents, and provided
that a document would not serve
as evidence unless referred to
during the course of evidence’. In view of the importance
attached to this report and
the extent of debate that it gave rise
to, it is necessary to quote it in full:
‘
On
Sunday afternoon of 11/2/07, I was contacted at approximately 16h30
by Fils, Vincent’s [i.e. the plaintiff’s] charge
hand,
with the unhappy news that Vincent had fallen from the floor just
above where they were installing steel, (First Floor
Escalator
Infill Slab Grid 8-9 / A-C).
When
I arrived there, approximately 10 minutes after I was called,
Vincent was being attended to by two Paramedics, at this stage
Vincent was extremely confused and could not talk; he did not even
know that he had fallen.
I
then questioned Fils, and the other two men, Dody Kamanda and
Manuel, on what had transpired. I was told that other than Fils,
both men received a terrific shock, fortunately neither were
injured.
Dody
and Manuel were operating from just below where Vincent fell; all
noticed a shower of sparks coming from the bunch of cables
below the
beam.
It
would appear that Vincent was electrocuted and rendered unconscious,
which caused him to fall from he’s [sic] sitting
position on
the floor just above where the beam was to be fitted, from what we
have been told, Vincent was holding on to the
safety railing which
happened to have the Chain block lifting chain touching the railing.
I
made an inspection of the site where the beam was to be installed
and noticed that there was a mass of cables of all descriptions
hanging loosely from the soffit over which the beam was being lifted
for final positioning.
I
checked the beam end in contact with the cables and did not notice
any trapped or strained cables at that time.
I
have been told that cables were taped and made safe within the
bundle of electric cables before we were allowed to proceed on
Monday morning.
I
questioned Vincent’s men as to why were they working over all
those loose electric cables, they assured me that they considered
them safe, as Vincent had spoken with the electrician, asking him to
isolate and turn the power of while he placed the beam into
position, he was assured that the power had been turned off.
When
we continued the installation on Monday morning after the accident,
we noticed that one of the chain block chains had fused
against the
beam, indicating a serious short circuit had occurred.
Vincent
has a broken arm, has had to have a prosthesis placed in his elbow,
severely fractured pelvis, head and face lacerations,
he will be
immobile for approximately 10 weeks.
In
view of how the Chain block chain had welded itself against the
steel beam, we would recommend the earth leakage be checked
for
future safety purposes, earth leakage should have tripped the
breaker before rendering a person unconscious.
My
report is based on statements obtained from the crew on site at the
time of the accident.’
Relying
on the provisions of
s 3(1)(c)
of the
Law of Evidence
Amendment Act, 45 of 1988
, I was urged on behalf of the plaintiff
to allow the hearsay report as being ‘the most reliable
evidence of the circumstances
in which the incident took place and
the events immediately thereafter’. Before this can
happen, however, I must
be satisfied that such evidence should be
admitted ‘in the interests of justice’, having regard
to the various
factors enumerated to in para (c), namely
‘
(i)
the nature of the proceedings;
(ii) the nature of
the evidence;
(iii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account.’
These
factors should not be considered in isolation: they are
inter-related and they overlap.
2
Moreover, they do not constitute a closed list, because of the wide
and generalised nature of para (c)(vii).
Applying
these principles to the case at hand, the nature of the present
proceedings [
para (c)(i)
] is that of a civil trial, where
parties are ordinarily required to adduce their evidence
viva
voce
and under oath, which evidence can be tested by opposing
parties by means of cross-examination. Allowing the introduction
of hearsay evidence inevitably deprives opposing parties of this
important benefit. The more crucial the evidence, the greater
the
potential prejudice. In my view, the defendants will clearly be
prejudiced by their inability to test the reliability and
accuracy
of the evidence contained in the report in question [
para
(c)(vi)
].
The
nature of the evidence sought to be adduced [
para (c)(ii)
]
relates to the content of statements made by eye-witnesses of an
event to a third party (Clarke), who was not present and
who is now
deceased. As such, it constitutes double hearsay and in one respect
third-hand hearsay, to the extent that the workers
appear to have
stated to Mr Clarke that the plaintiff had told them that he had
been assured by ‘the electrician’
that the power had
been turned off. While there is no absolute bar against allowing
double hearsay, it must be borne in mind
that ‘the more
hearsay is piled upon hearsay the more unreliable it becomes’.
3
The
purpose for which the evidence is tendered [
para (c)(iii)
]
is to prove the truth of the contents thereof and goes to the root
of the dispute between the parties, namely the manner in
which the
plaintiff sustained his injuries. In
Hewan v Kourie NO, supra
,
a Full Bench of the erstwhile TPD held: ‘The fact that the
evidence is untested and goes to prove the central issue
militates
against its admission.’
4
As pointed out by the court in that case, however, it may be that
this factor is outweighed in a particular case by other
considerations.
With
regard to the probative value of the hearsay evidence sought to be
admitted [
para (c)(iv)
], I have referred to the fact that it
contains second-hand (and in some respects third-hand) hearsay,
which in itself
tends to undermine its reliability. In addition,
there are further factors that adversely affect the probative value
of the
hearsay evidence: Mr Clarke (according to his report)
interviewed the three co-workers on the site shortly after the
incident
in question. Two of them hail from the DRC and one from
Zimbabwe. It can safely be assumed that Mr Clarke interviewed
them in English which, in all probability, is not their mother
tongue. The danger of misunderstanding due to
miscommunication
therefore looms large. That this is more than
mere speculation appears from the fact that two earlier reports by
Mr Clarke
paint a different picture of events: on 12 February 2007,
i.e. a day after the incident, he submitted reports to Workmen’s
Compensation and to the relevant insurance company respectively,
in each of which he stated,
inter alia,
that the plaintiff
‘was working on a scaffold installing a beam; the beam
touched some wiring which was live; the shock
resulted in [the
plaintiff] falling from scaffold’. In a third report, dated
14 February 2007, Mr Clarke stated that
the plaintiff ‘was
sitting on the first floor when he received an electric shock from
the hand-railing, causing him to
fall from the [first?] floor onto
the ground floor’. These discrepancies will forever remain
unexplained. This raises
the question why the fourth report should
be the one on which the court should rely in preference to the
earlier ones.
The
probative value of the report is further undermined by direct
evidence adduced on behalf of the first and second defendants
which
tends to contradict Mr Clarke’s observations on the site
immediately after the incident, such as the state of the
cables and
the question whether the chain block had welded itself against the
steel beam, as alleged in the report.
A
final factor affecting the probative value of the evidence is the
fact that Mr Clarke was not a disinterested neutral observer;
he
was one of two members of Tentron, which stood in a contractual
relationship not only with the plaintiff, but also with
NMC. As
such, he had a direct financial interest in the matter inasmuch as
Tentron was potentially liable to one or both these
parties arising
from the incident. He accordingly had a potential motive to
try and shift as much of the blame as possible
to ERC and/or NMC.
This requires the court to exercise caution in evaluating the
probative value of his report.
A
further important factor to consider in the present context is the
reason why the evidence sought to be introduced is not
given by the
persons upon whose credibility the probative value of such
evidence depends [
para (c)(v)
]. In this instance, it is not
because the witnesses are not available, or cannot be traced, or is
out of the country, or deceased;
it is simply because the plaintiff
approached two of them for assistance and, according to him, ‘they
refused’.
He says nothing about the position of the third
potential witness, nor does he furnish any reason why they were not
subpoenaed.
A natural inference to be drawn from this failure is
that he expected them to give unfavourable evidence.
5
On
an overall conspectus of the evidence, the plaintiff seeks
admission of the report on the basis that Mr Clarke is deceased.
However, this fact only gets the plaintiff over the first hurdle,
namely of placing the report before the court. With regard
to the
truth of the contents thereof, the more fundamental question
is whether Mr Clarke, had he been available to give
viva voce
evidence, would have been permitted to adduce such hearsay
evidence. For the reasons stated above, the answer must clearly
be
no. It follows,
a fortiori,
that I am not persuaded
that the contents of his report should be admitted ‘in the
interests of justice’.
In
any event, even if the report were to be admitted as evidence, I
bear in mind that the
admissibility
of evidence and its
weight
are separate issues.
6
For the reasons set out above, not much weight can be attached to
the hearsay evidence contained in Mr Clarke’s report
under
consideration.
Criticism of the plaintiff’s
evidence
The
plaintiff’s evidence was criticised on behalf of the
defendants on various grounds. Without going into detail, it
is
sufficient for present purposes to record that I agree with much of
the criticism and accordingly regard the plaintiff’s
evidence
as unreliable insofar as it relates to the events of the day in
question. The following examples will suffice in order
to
illustrate the point:
First,
due to the fact that the plaintiff was unconscious and ‘dazed’
after the incident, his memory of events is
understandably vague
and sketchy.
Secondly,
the plaintiff was ambivalent and gave conflicting versions on the
question as to whether or not he regarded the electrical
cables as
live at the relevant time. The evidence adduced on behalf of the
defendants, on the other hand, makes it abundantly
clear that it
was conveyed to all concerned that the building site formed part of
a ‘fully operational shopping mall’
and that all
electrical cables had to be regarded as live at all times unless
the contrary had been clearly indicated.
Thirdly,
insofar as the plaintiff sought to rely on an assurance received
from Mr Sylvester of ERC on the day in question that
the site was
safe for them to do their work, the reliability of such evidence is
undermined, not only by the plaintiff’s
own contradictory
evidence in that regard, but also by cogent evidence presented on
behalf of the first and second defendants
to the effect that
neither Mr Sylvester nor anyone else on behalf of ERC was on site
on the Sunday in question.
Evaluation
Reverting
to the cause of the plaintiff’s injuries, it thus appears
that the hypothesis advanced by him in his particulars
of claim,
namely of ‘electrocution’ resulting in his fall, is not
supported by the evidence. Instead, two alternative
hypotheses
present themselves as probable causes for his fall: first, he may
have fallen while working on the scaffold,
as stated in Mr Clarke’s
first two reports. Secondly, even if he was sitting on the first
floor, he may have fallen because
he leaned across into the void,
i.e. over the ledge, either from above or from below the safety
rail. On either version, no
liability would attach to any of the
defendants, as the proximate cause of the plaintiff’s
injuries would have been his
own failure to wear a safety harness,
notwithstanding the foreseeable risk of harm and the explicit
safety requirements in
that regard.
Finally,
even if the plaintiff’s hypothesis of ‘electrocution’
were to be accepted, it is clear, in my view,
that such
electrocution (if it occurred) was caused not by any negligent
conduct or omission on the part of any of the defendants,
but
because the particular manoeuvre of hoisting the I-beam into
position was performed in a negligent manner by the plaintiff
and
his crew. He conceded during cross-examination that before
commencing the work he regarded the cables as safe, in the sense
that they did not present an obstruction to the beam. He conceded,
further, that if the exercise of hoisting the beam into
position
had been performed as planned, the issue of whether or not there
was electricity in the cables would have been ‘entirely
irrelevant’. The fact that the beam may have made contact
with the cables and may have ‘snagged’ one of them,
as
suggested by the plaintiff, was what caused the electrical shock
and this cannot be blamed on any of the defendants.
Conclusion
For
the reasons set out above, I am driven to the conclusion that the
plaintiff has failed to discharge the onus of proving
that his
injuries were caused by the negligence of any of the defendants. It
follows that his claim cannot succeed against
any of them.
In
the result, the plaintiff’s claim is dismissed with costs.
B M Griesel
Judge of
the High Court
1
The
expert evidence of Mr Eppenberger about the relevant safety
regulations was provisionally allowed, but it does not throw any
further light on this question and does not require further
consideration.
2
Makhatini
v RAF
2002 (1) SA 511
(SCA) para 28. See also
Hewan v Kourie
NO
1993 (3) SA 233
(T) at 239C 240A.
3
Makhatini,
supra,
para 25.
4
1993
(3) SA 233
(T) at 241D.
5
Sampson
v Pim
1918 AD 657
at 662;
Elgin Fireclays Ltd v Webb
1947(4) SA 744 (A) at 749.
6
D
T Zeffertt & A P Paizes
The South African Law of Evidence
2
ed p 397.