Vigario v Afrox Ltd

• Jurisdiction: South Africa
• Citation: 1996 (3) SA 450 (W)

Vigario v Afrox Ltd
1996 (3) SA 450 (W)

1996 (3) SA p450

Citation	1996 (3) SA 450 (W)
Case No	28479/93
Court	Witwatersrand Local Division
Judge	Zulman J
Heard	June 12, 1995; June 13, 1995; June 14, 1995; June 15, 1995; June 19, 1995; June 20, 1995; June 21, 1995
Judgment	June 22, 1995
Counsel	F G Barrie for the plaintiff.; D N Unterhalter (assisted by C Munro) for the defendant.

Flynote : Sleutelwoorde B

Negligence — What constitutes — Plaintiff's husband killed by fire at defendant's oxygen plant — Fire occurring in cold box where defendant supposed to have system in operation whereby flow of oxygen into room eliminated — Defendant averring C that, notwithstanding trangressions of its works standing instructions and obligations under Machinery and Occupational Safety Act 6 of 1983, no negligence on its part causally responsible in legal sense for death of deceased, which death defendant could not reasonably have foreseen in circumstances — Employer obliged D even at common law to see that servants do not suffer through his personal negligence such as failure to provide proper and safe system of working — Evidence establishing on balance of probabilities that lighting of cigarette lighter by deceased likely source of ignition — Preparatory task of eliminating flow of oxygen into cold E room performed even before deceased arriving on scene whilst someone else in charge, and if other employees believing it safe to enter cold box deceased entitled to share same reasonable belief — Act of deceased in lighting cigarette lighter very type of act which defendant could and should have anticipated as possible in circumstances, and it should have taken reasonable and simple steps to guard F against such event happening — Very existence of instructions relating to permit to work indicating that defendant aware of dangers attendant upon fact that workers might enter areas such as cold room and behave in manner deceased might have done — Sufficient nexus between defendant's failure to take proper safety measures, G introduction of oxygen into cold box and fire occurring causing death of deceased — Reasonable employer would devise, employ and enforce safeguards to protect employees, including those indulging in foreseeably negligent conduct — Reasonable employer in position of defendant should have foreseen that, if failing to apply reasonable safeguards prescribed by MOSA regulations and own works standing H instructions, reasonable possibility existing that workmen might enter cold boxes with (oxygen) enriched atmosphere, exposing themselves to attendant fire hazards and workmen might introduce naked flames or other sources of ignition into such cold boxes, negligently or otherwise, and might be killed as result of fires occurring I in oxygen enriched cold boxes — Plaintiff establishing on balance of probabilities that: (1) harm to deceased reasonably foreseeable; (2) necessary nexus present; (3) no legally recognisable novus actus interven-iens; and (4) due consideration being J given to matters of legal policy and reasonableness, adequate causation in law.

1996 (3) SA p451

Headnote : Kopnota

A In an action for damages by the plaintiff in her personal capacity and in her capacity as guardian of her minor children arising out of the death of her husband as a result of a fire in a cold box at an oxygen plant of the defendant, the plaintiff's case was that the sole cause of the deceased's death was the negligence of the defendant and/or its employees acting in the course and scope of their employment. Summonses had been issued against the defendant and one of its employees for contravention of various provisions of the B Machinery and Occupational Safety Act 6 of 1983 (the 'MOSA Act') and regulations published thereunder, and admission of guilt fines had been paid.

The evidence showed that there were three ingredients necessary for the type of fire described to take place, namely the existence of an oxygen-enriched atmosphere, the presence of a combustible substance and a source of ignition. A lighter possibly belonging to the deceased had been found in the cold box after the fire, and evidence indicated that C the lighting of the lighter in the cold box could have ignited the fire. It was clear from the expert evidence, however, that no harm would have befallen the deceased if he had lit the lighter in an atmosphere that was not oxygen enriched.

The defendant had in operation works standing instructions whereby the flow of oxygen into the cold box was to be eliminated. A 'permit to work certificate' had to be issued by an engineering manager or responsible person before anyone was allowed to enter certain D places, including the cold box. The procedure to be followed before issuing a permit to work appropriate to the job was that the vessels concerned had to be safely isolated by positive blanking devices; vessels, pipes or danger areas concerned had to be adequately purged, and those containing flammable or oxidising gas had to be purged first with nitrogen then air; and a gas analysis had to be taken to ensure that the atmosphere within the vessel, pipe or area concerned was air only. If a naked flame was produced into the E oxygen enriched cold box it would cause a fire which would have fatal consequences.

According to the evidence, despite the strict works standing instructions of the defendant, the air in the cold boxes was never tested for the presence of oxygen with a device such as a servo meter which was available for this purpose. The actual standard practice to test that oxygen was not flowing into the box was to test certain outlet valves which were F situated outside the box. This practice was described by experts as a satisfactory, but not the safest, way of testing for the presence of oxygen in the cold box. It appeared that the deceased had in fact tested the outside valves in the manner suggested.

The plaintiff averred that the defendant had failed to take steps to ensure that it was safe for persons to enter the enclosed portion of the plant where the fire had occurred. She alleged that the works standing instructions had not been complied with in that a 'permit to G work certificate' had not been issued by the engineer manager or other persons responsible before the deceased had entered the cold box; that the cold box had not been safely isolated; that a gas analysis had not been undertaken to ensure that the atmosphere in the vessel was air only; and that no positive blanking devices had been inserted.

The defendant admitted some aspects of the acts of negligence averred but denied that H there had been a breach of its works standing instructions and regulations. The defendant also averred that at the time of death the deceased had been in charge of the work party, that he was an extremely experienced and competent employee, and that, insofar as it had been necessary and/or obligatory to initiate, implement or comply with certain safety precautions, it had been his sole responsibility. The defendant averred further that, in the event of the Court finding that it had been negligent, then such negligence had not caused or contributed to his death which had been caused solely by I the negligence of the deceased.

It was not put in issue by the defendant that it had failed to comply with its works standing instructions applicable at the relevant time, or that it had failed to comply with the statutory obligations imposed by the MOSA Act to provide a safe working environment for its employees. Neither was it put in issue that the defendant was responsible for the existence of an oxygen enriched atmosphere in the cold box at the relevant time. It was however the defendant's case that, notwithstanding these transgressions, there had been no negligence J on its part which had been causally

1996 (3) SA p452

A responsible in the legal sense for the death of the deceased, which death the defendant could not reasonably have foreseen in the circumstances.

Held, that this was not a case where any question of contributory negligence on the part of the deceased was relevant. Furthermore, by virtue of the amendment to the Apportionment of Damages Act 34 of 1956 by the Apportionment of Damages Amendment Act 58 of 1971, the last opportunity rule no longer applied to the situation, and accordingly, that if the plaintiff were able to show but 1% negligence on the part of B the defendant as causing the death of the deceased, she had to succeed in the action. (At 459H/I-460A.)

Held, further, that an employer was obliged even at common law, and leaving aside any obligations imposed under the MOSA Act and its regulations, to see that his servants did not suffer through his personal negligence such as a failure to provide a proper and safe C system of working. The fact that the defendant had not observed not only its own works standing instructions, but had also contravened various provisions of the MOSA Act and the regulations thereunder, was fortified by the fact that admission of guilt fines had been paid. In the absence of any explanation as to why this had been done, the inference to be drawn was that the defendant had accepted that it had indeed been guilty of such contravention and had no answer to the charges in question. (At 463G and 463I-464A/B.)

Held, further, that the evidence had established on a balance of probabilities that the likely D source of ignition had been the lighting by the deceased of a lighter, probably belonging to the deceased, which had been found on the scene after the fire, thereby producing a naked flame which had ignited either the beard of the deceased or his clothing causing it to burn intensely in the oxygen enriched atmosphere. (At 459C/D-D/E.)

Held, further, that the probabilities indicated that the preparatory...