ESKOM not liable for cyclist's injuries

[Mojoman]

Not sure if this was posted anywhere:

 

ESKOM NOT LIABLE FOR CYCLIST'S INJURIES
October 12, 2016Written by Staff ReporterPublished in Courts
Rider not a consumer

The Supreme Court of Appeal has overturned a decision of the Gauteng High Court to award damages to a Johannesburg investment consultant, Derek Anthony Halstead-Cleak, who was injured by an overhanging cable while cycling.

Halstead-Cleak claimed damages from Eskom Holdings Limited as a result of being severely burnt following his electrocution which resulted in burns across his face, neck, arms and chest. The incident happened in 2013 when he was riding with friends. In May last year the Gauteng High Court found Eskom was liable for Halstead-Cleak’s injuries in terms of the Consumer Protection Act.

Delivering judgement, Acting Judge of Appeal Mr Justice J Schoeman upheld the appeal brought by Eskom against the Gauteng High Court judgment, saying that Eskom was not liable to Halstead-Cleak in terms of the provisions of s 61 of the Consumer Protection Act 68 of 2008 and dismissed his claim based on these provisions.

The matter was remitted to the trial court for the determination of the remaining issues in the action. The matter under appeal was to determine delictual liability. The quantum of damages was separated during the High Court trial.

The provisions of the CPA provides that a producer or importer, distributor or retailer of any goods is liable for any harm caused wholly or partly as a consequence of the following: supplying any unsafe goods; a product failure, defect or hazard in any goods; or inadequate instructions or warnings provided to a consumer pertaining to any hazard arising from or associated with the use of any goods - irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributer or retailer.

Eskom argued that the Act was about the protection of consumers and, if Halstead-Cleak was injured at home while utilising his electricity, then and in that event the Act would have been applicable.

In its judgment, the Appeal Court found Halstead-Cleak was not a consumer as he had not entered into any transaction with Eskom, and he was not using the electricity, nor was he a recipient or beneficiary thereof.

“As stated, it is clear in the context of the Act that it is restricted to a supplier and consumer relationship. In any event it cannot be found that the harm the respondent suffered was as a result of the electricity itself failing, or that the electricity had a defect,” Judge Schoeman found.

 

http://www.africadaily.co.za/index.php?option=com_k2&view=item&id=354%3Aeskom-not-liable-for-cyclist-s-injuries

 

[quintonb]

That sounds like BS.

Surely they have an obligation to keep their equipment safe for the general public, Ie: danger of injury or death caused by low hanging cables.

 

I'm no lawyer or insurance broker, but they must have public liability cover for this kind of thing.

[Captain Fastbastard Mayhem]

That sounds like BS.

Surely they have an obligation to keep their equipment safe for the general public, Ie: danger of injury or death caused by low hanging cables.

 

I'm no lawyer or insurance broker, but they must have public liability cover for this kind of thing.

Yeah, but it seems as if the original case was argued from the point of the CPA. Which isn't applicable in this case, as he was not a consumer at the time of riding below the line / coming into contact with it. 

 

Quite a small point, but very important. 

[Capricorn]

Yeah, but it seems as if the original case was argued from the point of the CPA. Which isn't applicable in this case, as he was not a consumer at the time of riding below the line / coming into contact with it. 

 

Quite a small point, but very important. 

 

Agreed. If he had argued, and proven that eskom was derelict in performing timeous repairs, assuming the hanging cable was indication of a defect, then i think he would have had a case.

Maybe he should sue his trainer instead, for failing to instill him with the means to avoid live, overhanging electrical cabling.

[Captain Fastbastard Mayhem]

Agreed. If he had argued, and proven that eskom was derelict in performing timeous repairs, assuming the hanging cable was indication of a defect, then i think he would have had a case.

Maybe he should sue his trainer instead, for failing to instill him with the means to avoid live, overhanging electrical cabling.

BAHAHAHAHAHA!!

 

That is a farce of note. 

 

But yeah, agreed. Under general negligent / gross negligence regarding maintenance and safety of installations & min cover heights and things like that, he'd probably have had a case. 

[Bloukrans]

Here we go...

 

 

sca2016-150.pdf

[Blackbeard]

"his electrocution"?

[Capricorn]

Here we go...

 

Thanks for that Bloukrans.

 

I find this bit quite interesting:

 

Furthermore, Eskom could not have been expected to discover the state of the power line.

 

hmmmmmmmmmmmmmmmmmmmmmmmm....

[Captain Fastbastard Mayhem]

Thanks for that Bloukrans.

 

I find this bit quite interesting:

 

hmmmmmmmmmmmmmmmmmmmmmmmm....

yeah, that is indeed a strange finding. 

[Khronis]

Agreed. If he had argued, and proven that eskom was derelict in performing timeous repairs, assuming the hanging cable was indication of a defect, then i think he would have had a case.

Maybe he should sue his trainer instead, for failing to instill him with the means to avoid live, overhanging electrical cabling.

 

Maybe his trainer was Sven Lauer 

[Capricorn]

yeah, that is indeed a strange finding. 

 

i wish we could see photos of this location where the incident occurred. While i would have lots of questions for eskom around maintenance and inspection practices, i would similarly have plenty of questions for the rider, starting with why him and not his other fellow riders? What reasonable measures did he take to avoid an overhanging cable. whether its live or not can be dangerous, as witnessed by those who are rigging dual walking/riding trails to deliberately endanger cyclists. etc etc.

[Headshot]

He still has a claim just not in terms of the CPA. Its a good thing the court made the finding it did. No fault liability is dangerous and much new legislation passed is badly drafted and promotes litigation rather than prevents it. look at the NCA for an example.

 

If the rider was negligent, it will be weighed against Eskom's negligence and the damages awarded accordingly. I can imagine a situation where you come round a corner fast and there is an overhead obstacle like a wire where you least expect it. 

[Plentipotential]

Paging Harry.

[Captain Fastbastard Mayhem]

He still has a claim just not in terms of the CPA. Its a good thing the court made the finding it did. No fault liability is dangerous and much new legislation passed is badly drafted and promotes litigation rather than prevents it. look at the NCA for an example.

 

If the rider was negligent, it will be weighed against Eskom's negligence and the damages awarded accordingly. I can imagine a situation where you come round a corner fast and there is an overhead obstacle like a wire where you least expect it. 

or a grassy knoll on a piece of trail

[quintonb]

i wish we could see photos of this location where the incident occurred. While i would have lots of questions for eskom around maintenance and inspection practices, i would similarly have plenty of questions for the rider, starting with why him and not his other fellow riders? What reasonable measures did he take to avoid an overhanging cable. whether its live or not can be dangerous, as witnessed by those who are rigging dual walking/riding trails to deliberately endanger cyclists. etc etc.

I partly agree with you here, but what if it was a child, could/would they be expected to take the same reasonable measure to avoid what happened to this guy?

Im just playing devils advocate here, and fully understand that this particular case has its own merit.

[Edge_Design]

"his electrocution"?

 

Electrocution is death caused by electric shock, electric current passing through the body. The word is derived from "electro" and "execution", but it is also used for accidental death. The word is also sometimes used to describe non-fatal injuries due to electricity.

 

It's a term that's misused so often there is actually a disclaimer in the Wikepedia definition!