Klass Looch Associates

Employer OHS Champion since 1986 

IN THE SUPREME COURT

OF APPEAL OF SOUTH AFRICA 

L A DU PISANIE APPELLANT and 

RENT-A-SIGN (PTY) LTD 1 st RESPONDENT 

ADVERTISING DISPLAYS (PTY) LTD 2 nd RESPONDENT

 JUDGMENT 

MTHIYANE AJA: 

On Saturday 24 March 1994 at Sydenham Show Grounds in Port Elizabeth the appellant was assisting his father to remove and replace obsolete light fittings inside a Firefly advertising board ("the board"), when the sheet metal cladding which formed part of it gave way under them. As a result they both fell to the ground some six to seven metres below the board and the appellant suffered severe bodily injury.

The appellant instituted action for damages in the South Eastern Cape Local Division against the first respondent as owner and operator of the board, and the second respondent as the original manufacturer of the board. The appellant alleged that the incident occurred as a result of the negligence of the respondents in failing to ensure the safety of persons effecting maintenance and repairs inside the board. The board is described by the learned trial judge (Ludorf J) as follows:

"[It is] . . . a chamber or cavity formed by the steel structure of the board and the cladding of that structure with 0,8mm gauge steel sheeting. The cladding is affixed to the outside of the entire frame, by means of nails known as pop rivets, so as to enclose the space demarcated by the framework. The board is mounted on steel columns so that the lower side is at an average height of some 5 metres above ground level. The enclosed cavity is approximately 12,6 metres long, 3 metres high and 1,5 metres wide. Access to the cavity is gained by means of a door placed in the side of the board so that upon entering the door the cavity would extend in front of the person entering in the form of a passage 1.8 metres wide, 4 metres high and 6 metres long. The ‘floor’ and ‘roof’ and left side ‘wall’ of the passage consists of the steel cladding affixed by the rivets to the framework from the outside so that the steel members of the framework, but not the rivets, are visible to such person from the inside. The righthand ‘wall’ consists of a canvas-like translucent material which bears the advertising display. The framework is strengthened by angle-iron props along the passage, welded onto both vertical and horizontal members diagonally across the 90 degree angles formed by the horizontal and vertical members. The result is that on walking along the ‘floor’ of the passage it is necessary to step over the diagonal props at regular intervals, save only in the case of the first frame, immediately adjacent the entrance door, where the diagonal prop has been omitted so as to afford entrance through the door which would otherwise have been barred, diagonally across, by such prop. The board is an advertising display board and its distinguishing feature is that the display on the canvas is illuminated from behind, i.e. from the inside of the structure by means of fluorescent lights inside the cavity affixed to inside of the steel cladded ‘wall’ of the passage. The electric fittings which had to be substituted are affixed to this steel ‘wall’ so that the fluorescent light tubes fit into the fittings in a vertical position. The tubes are approximately 2,5 metres long extending from a distance of some 12 inches from the ‘floor’ of the passage vertically upwards."

Ludorf J was asked to decide only the issue of causal negligence and to allow the issue of the quantum of the appellant’s damages to stand over. The learned judge found in favour of the respondents and granted the appellant leave to appeal to this Court. The appeal against the finding in favour of the second respondent was withdrawn prior to the hearing.

Sometime before the incident the first respondent had entered into an agreement with one of its employees, one Cornelius Christiaan Kritzinger, in terms whereof he undertook to remove and replace the obsolete light fittings inside the board. In terms of the agreement the first respondent was to provide the light fittings and Kritzinger his labour. Kritzinger had done similar work inside the board previously without any untoward incident. However before he could do the work, Kritzinger was approached by the appellant’s father with the request that the work be passed on to him on the same terms and conditions. Kritzinger was persuaded to agree after the appellant’s father had revealed to him that he was in need of money at the time, that he had no work on hand, and that his son (the appellant) was unemployed. The appellant matriculated in 1986 and qualified as a petrol and diesel mechanic in 1992. After qualifying, he worked in Port Elizabeth until February 1994 when he resigned so that he could fulfil his dreams of travelling overseas. Before he could do so tragedy struck when he was injured while he was assisting his father. The appellant’s father was not a stranger to Kritzinger. They had known each other for many years prior to the incident. Kritzinger described him as an experienced electrician and a "Jack of all trades". The first respondent was aware that the work to be carried out in the board had been passed to the appellant’s father and had raised no objection. For the purposes of delictual liability in this case it can therefore be accepted that at all relevant times Kritzinger acted within the course of his employment with the first respondent in engaging the appellant’s father to do the work.

Before the appellant and his father commenced work inside the board Kritzinger warned the appellant’s father that the board was clad with sheetmetal affixed to the steel framework only with pop rivets and that it would be dangerous to walk or place weight on it. The warning was given while Kritzinger and the appellant’s father were watching the demolition of a similar advertising board from which they had removed the internal electrical fittings two days earlier. The appellant’s father did not offer any comment or ask questions and Kritzinger assumed that his warning would be heeded and communicated to the appellant. As the subsequent events indicated, the warning was neither heeded nor communicated to the appellant.

What occurred after the warning was issued, is described by Ludorf J as follows:

"Du Pisanie snr (the appellant’s father) entered the board through the door first, and the Plaintiff followed. Both Du Pisanie snr and the Plaintiff in fact put their weight on the cladding. They both walked on it. Plaintiff testified that he traversed the entire length of the ‘passage’ using the cladding as a floor and putting his weight upon it. In order to reach the top ends of the fluorescent fittings they made use of a stepladder. In the case of each fitting on which they worked, they placed the ladder in the passage so that the righthand foot of the stepladder and the righthand foot of the prop of the ladder rested on the righthand angle-iron member, while the left foot and prop rested on the cladding. Having so placed the ladder the Plaintiff ascended it sufficiently to reach the upper ends of the electric fittings, and Du Pisanie snr worked on the lower fitting of the same light simultaneously while sitting on his haunches directly below the Plaintiff and upon the same section of steel cladding on which the left front foot of the stepladder was resting. It was while Plaintiff and his father were working in these positions that the cladding gave way beneath them and they fell . . .

[The] cladding gave way under [them] because a rivet or rivets affixing that section of cladding bearing their weight at the time, failed, causing the weight-bearing cladding to become detached from the steel framework of the board."

The test for the imposition of liability for negligence has been authoritatively stated in Kruger v Coetzee 1966(2) SA 428 (A) at 430 E - G:

"For the purposes of liability culpa arises if-

 a diligens       paterfamilias 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; and
       
  1. would take reasonable steps to guard against such occurrence; and
      
  1. the defendant failed to take such steps."

See also Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000(1) SA 827 (SCA) at 839 C.

Ludorf J found that the first requirement (a)(i) and (ii) mentioned in Kruger v Coetzee (supra) had been established. The learned judge accepted that the first respondent owed the appellant a duty of care in that the risk of injury to the appellant and his father was in the circumstances reasonably foreseeable and he considered that a diligens paterfamilias in the position of the first respondent would have taken reasonable precautions to safeguard the appellant.

There is no question that the appellant and his father were invited to carry out work in a potentially dangerous workplace. The light fittings that had to be removed and replaced were located inside the board some six to seven metres above the ground. The board was not equipped with a stable floor. The cladding forming the base of the board was not intended to be weight-bearing and was also not bolted to the steel framework of the board but was merely fastened with pop rivets. Moreover there was evidence that indicated that the rivets may have rusted due to inadequate maintenance. It may well be that, to a skilled artisan or an experienced electrician such as the appellant’s father, the danger should have been apparent. If so (and there was some evidence to support such a finding), it is questionable whether it was necessary to draw attention to the danger at all. Cf MacDonald v General Motors South Africa (Pty) Ltd 1973(1) SA 232 (E) at 237 F – However that may be, for the purposes of a decision in this case it can be assumed in my view that in the circumstances the first respondent did owe the appellant a duty of care. To the knowledge of Kritzinger, the appellant and his father were going to effect maintenance and repairs in an elevated board with only pop riveted sheet metal cladding beneath them.

I turn to consider the second requirement (b) in Kruger v Coetzee (supra), namely whether Kritzinger did what the law required him to do, namely, take reasonable steps to guard against the risk of harm or injury to the appellant. Ludorf J decided this issue in favour of the first respondent. The learned judge found that the first respondent did comply with this duty in that the issuing of a warning to the appellant’s father was reasonable and sufficient under the circumstances, and that the sole cause of the mishap was the unforeseeable failure of the appellant’s father to convey the warning to the appellant. This finding was attacked by counsel for the appellant on the basis that the warning was inadequate and, in any event, not of itself sufficient to discharge the duty of care. Counsel’s attack went to the circumstances in which the warning was given. He submitted that it was given in passing and not in sufficiently explicit terms. It was also submitted that because Kritzinger had worked inside the board previously, he should have advised the appellant’s father as to how the stepladder could be placed safely inside the board to enable the appellant and his father to get to the light fittings, and should not have left them to their own devices.

These attacks raise the following questions: what is the extent of the duty of a person who hires an independent contractor to effect maintenance and repairs attended by an element of danger? Is it sufficient to merely warn of the danger? Is the hirer also expected to tell the independent contractor how to do the work in such a way as to avert the danger, or should the contractor be left to his own devices? It seems to me that a person who engages an independent contractor to do the work would be under an obligation to warn him of known dangers which would not be obvious. However, if the work is attended by obvious danger it is debatable whether there would be any need to point it out.

In casu the appellant’s father was an experienced artisan. The warning given to him was clear and unambiguous. The circumstances in which it was given do not in my view diminish its value. It was given before the appellant and his father commenced the work on the board. If the warning had been heeded and passed on to the appellant the mishap could have been avoided. Besides, it was not shown that the work undertaken by the appellant and his father inside the board could not have been carried out safely. It is true that the appellant’s father was not told by Kritzinger how this could be done, but the appellant’s father was an experienced electrician and, in the circumstances of this case, Kritzinger was not required to do anything more than to warn him not to walk or place his weight on the cladding. It was for appellant’s father to decide how best to avert the danger. The argument that Kritzinger should have advised the appellant and his father how to carry out their work safely cannot be sustained. A person who engages an independent contractor is generally not under a duty to advise him as to the steps he should take to avert known danger. Cf Bates v Parker [1953] 2 QB 231 (CA) at 235 and Christmas v General Cleaning Contractors Ltd and Others [1952] All ER 39.

It was also argued that the appellant himself should have been warned by Kritzinger. The latter point can be disposed of immediately. The appellant was working under the control and supervision of his father who was told about the danger attendant upon the performance of the work and it was, in my view, reasonable in the circumstances for Kritzinger to expect that the warning would be conveyed to the appellant.

Reliance was also placed by the appellant’s counsel on the provisions of the Occupational Health and Safety Act 85 of 1993 and the regulations promulgated thereunder which, it was contended, placed statutory obligations on the first respondent to safeguard the appellant against harm or injury. In particular reliance was placed on regulations 6, 12, 13D, 13F and 13G. It is unnecessary to quote them in extenso.

It is clear from the wording of the above regulations that a general duty is imposed on an "employer" to ensure that work is performed by an employee in a relatively safe working place. Where work is performed in potentially dangerous areas, some of which are referred to in the said regulations, certain defined safety precautions are required to be taken by the employer to avoid harm to persons whom he has "required or permitted" to work in such dangerous work places. It is difficult to conceive that such a person is anyone other than an employee or a person falling directly under the employer’s control. I do not think, and, in any event, the wording of the regulations does not suggest, that an independent contractor or his workmen fall into this category. The appellant was not an employee of the first respondent and would in my view therefore fall outside the category of persons mentioned in the Act and the regulations. The provisions of the Act and the regulations do not therefore assist the appellant.

In any event, an independent cause of action for breach of statutory duty was not pleaded and it is not therefore open to the appellant to rely thereon in the absence of an appropriate amendment.

In my judgment it has not been shown that the first respondent was negligent. I agree with the finding of the court a quo that Kritzinger took reasonable precautions to guard against the risk of harm to the appellant. I would accordingly dismiss the appeal.

[18] The appeal is dismissed with costs.