ESKOM not liable for cyclist's injuries

[Capricorn]

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.

 

There's always the argument that children should be accompanied by an adult who is supposed to enforce the reasonable course of action. Remember, 5 adults (i presume), managed to avoid this obstacle, so what was particular about the injured rider's trajectory that made this hanging cable unavoidable? As a rider, you are supposed to remain vigilant at all times. Roadies deal with buses, taxis, mobile phone junkies, while MTBers have to deal with rocks, branches, kudus, giraffes and bears. Something in the air is definitely not part of the trail.

 

btw: not a lawyer. Just mulling this over, especially that claim by eskom about not being expected to discover the cable defect.

[Blackbeard]

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! 

Lowest common denominator resource.

[Skinnyone]

Having met Derek shortly (a few months) after the incident, he was seriously messed up...he had nerve damage in his face, legs etc, had to undergo surgery to remove dead or dying tissue in his legs where the current passed thru...man he was a mess...he told me he did actually die on scene and his mates resuscitated him...so yes electrocuted.

 

His bike had carbon rims - the carbon melted where the electricity passed thru...that is a LOT of current.

 

yes his mates avoided the "obstacle" but who of you have been riding at the back, seen your mates duck/swerve/react to an obstacle and not reacted yourself in the same manner/time and crashed...?

[Shebeen]

that's bollocks!

[Headshot]

Ya, precisely, Skinnyone, it could happen so easily.

 

The case will focus on this but more so on whether the fallen or dangling cable was present because of ESKOM's negligence. There is a concept called the "duty of care" which is known in our law, although its not a legal principle it has been used in cases involving municipalities. Such organizations and perhaps Eskom, have a duty of care to the public.

 

For instance, claims arise where a manhole cover is missing and someone falls in and breaks a leg for instance. The court would look at whether the missing cover had been reported and what the response time was among other things. Similarly a fallen cable that poses a serious risk to passersby was probably reported. Did Eskom act swiftly to prevent harm? Or was it shoddy maintenance? I suspect they will be found wanting.

[Capricorn]

yes his mates avoided the "obstacle" but who of you have been riding at the back, seen your mates duck/swerve/react to an obstacle and not reacted yourself in the same manner/time and crashed...?

 

a few times, but in all honesty, i was following too closely at the time.

[Captain Fastbastard Mayhem]

a few times, but in all honesty, i was following too closely at the time.

Most often a hearty thwack from a branch that the person in front also hit. 

[Capricorn]

Most often a hearty thwack from a branch that the person in front also hit. 

ya.. those are pretty sif. total bitchslappery..

[eddy]

I just scanned the judgement and have not looked at the original High Court judgement but this is what I gleaned.

 

The cable hung low because the conductors had been vandalised by the theft of the stay rods. Escom could not have been aware of it. 

 

I suspect he sued under the Consumer Protection act in the first instance as proving the elements of Delict would have been much more difficult,  and in any event, does not provide for strict liability. 

 

In brief, the court found that the CPA is there to protect vulnerable consumers from exploitation in their business dealings and as such there must be a transaction to which a consumer is party for the CPA act to apply.

 

Clearly there was no transaction between Eskom and the cyclist for the supply of electricity and therefore he cannot sue under the CPA.

 

The matter was referred back to the High Court for further hearing, probably on the basis of Delict.

[JXV]

Eskom's product is hazardous and they are responsible for keeping it contained while in transit...same as I am responsible if I transport a dangerous chemical I am selling to a customer.

 

Derek is the unwitting 3rd party victim.

 

Eskom should either patrol/inspect/monitor their distribution lines or design them to be less susceptible to vandalism.

 

The 3rd party in this case could do very little to avoid the hazard and it is not a hazard commonly encountered. His reaction time was reduced by riding behind others and his response perhaps also delayed by the novelty of the hazard. I can't see how any blame can attach to him at all.

 

Agree the CPA is perhaps not the appropriate legislation to use. Eskom has a duty to protect members of the public from exposure to its product. A low hanging live wire must contravene some or other regulation....even if it was caused by vandalism.

 

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[Jigghead]

Only read the initial post.

 

The CPA is between a provider and a consumer. So i can understand the ruling, as a matter of law. However, outside of the act, surely they should be held liable for their infrastructure and the failure thereof, it's presumably owned by the respondent, injuring an innocent party should surely elicit some form of liability.

[lechatnoir]

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. 

 

HAD a case? Damn straight!! Slam/dunk actually... Using CPA??? what was that offense thinking?

 

Using high tension electricity while cycling is obviously fraught with danger... esp on a carbon bike

[JXV]

Just read the initial post.

 

The CPA is between a provider and a consumer. So i can under stand the ruling, as a matter of law. However, outside of the act, surely they should be held liable for their infrastructure, presumable owned by the respondent, injuring an innocent party?

Agree and they almost certainly carry public liability insurance....

 

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