PMB Armature Winders v Pietermaritzburg City Council

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 23 December 1980
• Citation: 1981 (2) SA 129 (N)
• Court: Natal Provincial Division

Didcott, J.:

The questions I must answer concern s 50 of the Electricity Act 40 of 1958 which goes thus:

"(1)

In any proceedings against an undertaker arising out of damage or injury caused by induction or electrolysis or otherwise by means of electricity generated or transmitted by or escaping from the plant or machinery of any undertaker, it shall not be necessary for the C plaintiff to prove that the damage or injury was caused by the negligence of the defendant, and damages may be recovered notwithstanding the absence of such proof.

(2)

In any such proceedings it shall be a defence that the damage or injury was due to the wilful act or to the negligence of the person injured or of some person not in the employ of the defendant or of some person operating the plant or machinery of the defendant without his consent."

The defendant is an undertaker for the Act's purposes. Electricity D transmitted by its plant or machinery damaged the plaintiff's equipment. The damage was not caused by induction, by electrolysis, or by anything akin to either. All these facts I was asked to accept.

The plaintiff sued the defendant, claiming compensation for the damage. This it blamed on the negligence of the defendant's servants. It then invoked s 50.

E When the action came before me for trial the parties agreed and I directed that, before it progressed, two basic disputes about the section which had developed should be resolved under Rule 33.

The first question was whether these were proceedings of the sort F specified in the section, with the result that it governed them. The section's description of the proceedings it regulates is not quite as easy to read as that looks. At first glance "otherwise" seems not to stand alone in ss (1), but to run naturally into and introduce the phrase which follows it. The section appears to allude, in other words, to damage or G injury caused (i) by induction, (ii) by electrolysis, and (iii) otherwise by means of electricity generated or transmitted by or escaping from the undertaker's plant or machinery. Such interpretation, however, isolates the references to induction and electrolysis from all mention of the undertaker's plant or machinery. It thus postulates a claim against an undertaker for damage or injury caused by induction or electrolysis which may well have had nothing whatever to do with the undertaker's H electricity. That could scarcely have been envisaged. The interpretation must therefore be discarded, if the section lends itself to some alternative more sensible. This, in my opinion, it does. One gets there by taking a breath after "otherwise", and by reading the next phrase so that it qualifies not only that word, but "induction" and "electrolysis" as well. So recited, the section speaks of damage or injury which, by means of electricity generated or transmitted by or escaping from the undertaker's plant or machinery, is caused (i) by induction, (ii) by electrolysis, and (iii) otherwise. The treatment is a trifle awkward perhaps, but it puts no real

Didcott J

strain on the section's language. Its effect, counsel agreed, made it much the better interpretation.

It was also the starting point for the contention, advanced on the A defendant's behalf, that the first question ought to be answered in the negative. The reason, so the argument went, was this. "Otherwise" should be construed ejusdem generis with "induction" and "electrolysis", so that the additional causes it denoted were limited to those of the same kind as B theirs. The damage to the plaintiff's equipment, one recalls, had no such cause.

The argument depended on the proposition that induction and electrolysis had a common denominator shared by other processes too, which was significant and distinctive enough for them all to be classified as C species of one and the same genus. Whether such was in truth the case was a controversy before me. The issue involves technical concepts and terminology. I cannot decide it without evidence to help me grasp these. I shall, however, suppose the proposition to be sound. All this means, on the other hand, is that room for an interpretation ejusdem generis is assumed where none would otherwise have been apparent. The interpretation's actual acceptance is quite another matter.

D The defendant's counsel, Mr Fuller, relied in this connection on the construction placed on the expression "damage caused by electrolysis or otherwise" in Eastern and South African Telegraph Co v Cape Town Tramways Co (1900) 17 SC 95. DE VILLIERS...