Klass Looch Associates

Employer OHS Champion since 1986 

 

Fry v Huletts Aluminium (Pty) Ltd [2009] (KZP)

Mini Summary

The plaintiff instituted action against the defendant for damages suffered as a result of an explosion and subsequent fire at the defendant's premises. At the time, the plaintiff was on the defendant's premises to do certain engineering work.

The court was required to determine the issues of whether the defendant's actions were negligent and the factual cause of the explosion. In seeking to hold the defendant liable, the plaintiff argued that the General
Safety Regulations of the Occupational Health and Safety Act 85 of 1993 placed on the defendant a statutory duty towards him and such duty had been breached.

Held that the plaintiff had to prove that he was a person to whom the benefit of the duty was imposed. As the Regulations applied only to employees and not independent contractors such as the plaintiff, he could not be a beneficiary of any duty arising from the regulations.

The test for negligence is whether a reasonable person in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; would take reasonable steps to guard against such occurrence; and whether the defendant failed to take such steps.

Where, as in the present case, the two versions before court are of equal probability and a court is unable to determine which version is the most probable, and there are no independent facts on which to rely or persuade to accept one over the other, the court must decide in the favour of the defendant. Finding that the plaintiff was unable to discharge the onus of proof, the court dismissed the claim.

TSHABALALA JP

Introduction

[1] In this matter plaintiff instituted an action against the defendant for damages suffered as a result of an explosion and subsequent fire at the defendant's premises. The court is required to determine the issues relating to whether the defendant's actions were negligent and as well as the factual cause of the explosion.

Background facts

[2] At the time of the incident, plaintiff was employed as a qualified welder for an engineering firm known as Rallin Engineering. On the morning of 13 February 2002, the plaintiff along with four other co-workers ("the team") attended the premises of the defendant for the purposes of inserting a valve between two pipelines, as was required by the defendant.

[3] Defendant engages in the process of rolling aluminium at its rolling mill, and the two pipelines in question contained Shell Sol D100 oil that was used in the rolling process. The team had brought with it cutting and welding equipment which was brand new. Upon arrival, they were issued with a Hazard Clearance Certificate, as is required by the General
Safety Regulations1 of the Occupational Health & Safety Act,2 by an employee of the defendant, Mr Van Der Mescht. Van der Mescht also examined their equipment and was satisfied therewith.

[4] The team then proceeded to the basement of the rolling mill S6, in which the pipes were situated. According to the plaintiff, the area was then hosed down in order to flush oil from the floor gratings, and wet cardboard was placed over the panels. A hole was then cut into each of the pipes, with the equipment that the team had brought with it. After these holes had been cut, it was discovered that the valve that was to be fitted either needed to be assembled, or was in fact the wrong one. The team then proceeded up to the ground floor in order to assemble the valve.

[5] Some five hours later, the team, along with Van Der Mescht, returned to the basement in order to proceed with the fitting of the valve.

However, it was then discovered that oil had been dripping from one of the pipes. Nevertheless, a member of the team, Mr Houston, climbed up onto the other pipe in order to fit the valve. Around the same time, Van Der Mescht returned to the ground floor to determine on the computer system whether the valve in the leaking pipe was in fact closed.

[6] Mr Houston, upon discovering the hole in the other pipe wasn't suitable, decided to enlarge it. However, as he struck his flint to light his torch, an explosion occurred. As a result of the explosion and ensuing fire, Mr Houston was killed and plaintiff suffered burns as well as dislocated shoulder

Statutory duty and the
Occupational Health & Safety Act and Regulations