Vigario v Afrox Ltd

• Jurisdiction: South Africa
• Judge: Zulman J
• Judgment Date: 22 June 1995
• Citation: 1996 (3) SA 450 (W)
• Docket Number: 28479/93
• Counsel: F G Barrie for the plaintiff. D N Unterhalter (assisted by C Munro) for the defendant.
• Court: Witwatersrand Local Division

Zulman J:

The plaintiff both in her personal capacity and in her capacity as guardian of her two minor children, sues the defendant for damages allegedly suffered as a consequence of the death of her husband, Mr R M de Silva Vigario (the deceased).

I At the outset of the trial and by agreement between the parties I ruled that the merits of the plaintiff's claims be first adjudicated upon and thereafter, if need be, the question of the quantum of the claim be dealt with.

It is common cause that on 20 January 1992 the deceased died as a result of burn J sustained by him in a fire which occurred in a cold box at

Zulman J

A the defendant's oxygen plant at Phalaborwa. I will refer to this incident as 'the fire'. It is the plaintiff's case that the sole cause of the death of the deceased was the negligence of the defendant and/or its employees acting in the course and scope of their employment.

In the course of the opening address of counsel for the plaintiff I was requested to rule B upon the admissibility of certain evidence. The evidence, which it was conceded was hearsay, was sought to be admitted in accordance with the provisions of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.

After hearing full argument upon the matter, and in the exercise of the discretion vested in C me, I ruled that the evidence was admissible. My ruling appears at pp 203 to 204 of the record. Essentially that evidence consisted of certain evidence led at an inquiry into the fire which led to the deceased's death conducted in terms of the then applicable Machinery and Occupational Safety Act 6 of 1983 (MOSA) at Phalaborwa (the MOSA inquiry), D and certain evidence which was led at an inquest which was held into the death of the deceased at Phalaborwa in September 1993. I was motivated to admit the evidence essentially upon the basis that:

1.

The proceedings in question, and particularly the inquest proceedings, were quasi judicial in nature.

2.

E Despite a request made by the plaintiff's attorney to interview a number of witnesses who gave evidence at the MOSA inquiry and at the inquest, and who were employees of the defendant at the relevant time, the defendant's attorneys advised the plaintiff's attorney that the defendant refused to allow F 'any of its employees to consult with the plaintiff'.

3.

The witnesses in question were readily available to give evidence, and in fact at least one of them was in Court during the course of argument.

4.

I was of the opinion that 'such evidence should be admitted in the interests of justice'.

G The defendant's counsel admitted, subject to the weight to be attached to such evidence, the fact that summonses had been issued against the defendant and one of its employees, Ian Miller, for contraventions of various provisions of the MOSA Act and the regulations published thereunder, and that admissions of guilt fines were paid in respect H thereof by both the defendant and Miller. In essence, the charges set out in the summonses were that the accused had unlawfully failed to take steps to ensure that it was safe for persons to enter the enclosed portion of the defendant's plant where work was being carried out and where the fire occurred.

The plaintiff, after this ruling was given, led evidence of a D C Pim, an expert witness. Pim I is a professional engineer by qualification and a man of considerable experience in the field of occupational safety. Pim was also the presiding officer at the MOSA inquiry to which I have previously referred. Mr Pim was extensively cross-examined by Mr D Unterhalter, who appeared with Mr Munro for the defendant. In his evidence Pim dealt, J inter alia, with what he believed to be the probable causes of the

Zulman J

A fire, based essentially upon the information which he gleaned during the MOSA inquiry and with reference to what he subsequently read in the record of the inquest proceedings.

The plaintiff then called the deceased's daughter, Carla Alexandra Vigario. Her evidence dealt with the question of whether a certain pink and black cigarette lighter, which was B exhibit B in the trial, was likely to have been in the possession of the deceased at the time of the fire.

The plaintiff then closed its case.

The defendant thereupon called a labourer, Alex Mahali. His evidence concerned C principally his finding of a cigarette lighter, after the fire, in certain perlite. He identified that lighter as being exh B.

Thereupon the defendant called as its expert witness, G R Basson, a chemist who had considerable experience in the question of fire protection. Basson gave evidence as to what he considered were the probable causes of the fire in question, and also as to certain experiments that he had conducted with lighted cigarettes in oxygen enriched D atmospheres. Basson was extensively cross-examined by counsel for the plaintiff, Mr Barrie.

The defendant thereupon closed its case without leading any further evidence.

I was thereupon furnished with a detailed and thorough oral argument by counsel for the E parties, which I had the opportunity of debating and testing fully with them. This has immeasurably assisted me in my task and enabled me to deliver this judgment so shortly after the conclusion of the trial.

The essential question for determination in this matter is whether the plaintiff has F discharged the onus, which undoubtedly rests upon her, of showing, on a balance of probabilities, that the death of the deceased was caused by negligence on the part of the defendant and/or its employees acting in the course and scope of their employment.

In para 5 of the particulars of the plaintiff's claim the plaintiff has particularised the acts of negligence, upon which she relies, as being as follows (para 5 at 4-9 of the pleadings G bundle):

'5.1

the defendant failed to devise adequate safety measures to prevent the dangers attendant upon the presence of oxygen in areas such as the cold box in which the deceased was burnt to death ("the cold box");

5.2

H the defendant failed to implement safety precautions and standing instructions relating to work to be carried out in areas such as the cold box;

5.3

the defendant's employees, acting as aforesaid, failed to ensure that there was no oxygen trapped in dangerous pockets in the cold box when they could and should have done so;

5.4

I the defendant's employees, acting as aforesaid, failed to test the atmosphere of the cold box prior to entering therein;

5.5

the defendant's employees, acting as aforesaid, failed to analyse the content of the gases in the cold box;

5.6

the defendant's employees, acting as aforesaid, failed to thaw the liquid J oxygen in the cold box prior to work commencing therein;

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5.7

A the defendant's employees, acting as aforesaid, failed to ensure that there was no oxygen trapped in the perlite covering the floor of the cold box;

5.8

the defendant's employees utilised equipment which was not flame protected;

5.9

B the defendant failed to take those steps reasonably necessary to ensure that there was fire-fighting equipment immediately available to those persons in the cold box;

5.10

the defendant and/or its employees, acting as aforesaid, failed to comply with the defendant's works standing instructions in that

(i)

C the portable electric tools and/or lights which were used were not checked monthly by the factory electrician;

(ii)

flame-proof electrical equipment was not utilised;

(iii)

non-sparking electrical equipment was not utilised;

(iv)

flame-proof electrical equipment was used which had not been certified by a testing authority as suitable for use in the presence of flammable D gas;

(v)

a "permit to work certificate" was not issued by the engineering manager, or other persons responsible, appointed by him before the deceased entered the cold box, which constituted a vessel and/or tank as envisaged by the works standing instructions;

(vi)

E the cold box was not safely isolated by positive blanking devices;

(vii)

gas analysis was not undertaken to ensure that the atmos-phere within the vessel was air only;

5.11

the defendant failed to take adequate steps to ensure that such safety F measures, safety precautions and standing instructions that the defendant might have devised relating to the work to be carried out in areas such as the cold box were in fact applied and complied with by its employees, more particularly the deceased, when working in areas such as the cold box in the G circumstances that pertained when the deceased was burnt to death;

5.12

the defendant failed to comply with the statutory obligations imposed by the Machinery and Occupational Safety Act 6 of 1983 ("the Act") and the regulations promulgated in terms thereof -

5.12.1

H take all reasonable steps to ensure that the requirements of the Act and the regulations are observed by every person in its employ or on premises where machinery is used;

5.12.2

ensure that work is performed or machinery is used under the I general supervision of a person who has the knowledge and experience necessary to assess the hazards associated with the performance of such work or the use of such machinery;

5.12.3

establish, as far as is reasonable, what dangers to the safety of persons are attached to work that is performed in areas such as J the cold box;

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5.12.4

A establish what precautionary measures should be taken with respect to work in areas such as the cold box in order to protect the safety of persons;

5.12.5

provide the necessary means for and apply such precautionary measures;

5.12.6

B take such steps as may be necessary to remove any threat or potential threat to the safety of persons who have to...