Eskom Holdings Ltd v Jacob Johannes Hendricks obo Jacques Justin Hendricks

On 4 August 1994, Jacques Hendricks, aged 11 years and 8 months, was seriously injured when he climbed an Eskom pylon and was shocked by a 66,000 volt power line. The pylon, a lattice-type structure approximately 21 metres high, was located 150 metres from the respondent's home and adjacent to Malibu High School, Blue Downs. Jacques climbed the pylon with his younger brother and friend, racing to see who could climb highest. He passed through an anti-climbing device (ACD) at the 3-metre level by pushing barbed wire out of grooves with his hands, which he described as 'fairly easy'. He climbed to approximately 14 metres, reached the first cross-arm, and while resting, became fascinated by greenish-coloured glass insulators. He traversed out along the cross-arm to touch an insulator to feel its texture. A 'flash-over' occurred when his head came within 66mm of the power line above, causing him to fall to the ground with his clothes on fire. A passer-by extinguished the flames. Jacques survived but sustained serious burns and injuries.

• Whether Eskom was negligent in failing to take reasonable steps to prevent harm to children climbing its pylons
• Whether the anti-climbing device (ACD) installed by Eskom was adequate protection as required by the Electrical Machinery Regulations and the NRS Code of Practice
• Whether Eskom failed to provide adequate warning signs
• Whether Jacques, aged 11 years and 8 months, had delictual capacity (was culpae capax) to incur liability for contributory negligence
• The proper test for determining whether a child has the capacity to be negligent in relation to specific conduct
• Apportionment of liability for contributory negligence

The appeal by Eskom was dismissed with costs, including costs of two counsel. The cross-appeal by the respondent was upheld with costs, including costs of two counsel. The order of the court a quo was altered to provide that: (a) Eskom is held liable for all damages that Jacques suffered in consequence of the electric shock sustained on 4 August 1994 (removing the finding of contributory negligence); (b) Eskom is ordered to pay the plaintiff's costs of suit occasioned by the hearing on merits, including qualifying fees of experts who testified for the plaintiff.

The binding legal principles established are: (1) An electricity undertaker who installs anti-climbing devices on pylons that are ineffective in practice (even if apparently formidable) fails to provide 'adequate protection' as required by the Electrical Machinery Regulations and breaches its duty of care to prevent harm to would-be climbers, particularly children. (2) Where a safety device can be easily circumvented without tools (such as by pushing barbed wire out of grooves), a reasonable person would take simple, low-cost measures to make the device more effective (such as affixing wires at grooves). (3) In determining whether a child aged between 7 and puberty has delictual capacity, the inquiry must focus specifically on whether the child had the emotional and intellectual maturity to appreciate the particular danger arising from the specific conduct complained of and to act accordingly - not capacity in general or in the abstract. (4) Impulsive conduct undertaken out of curiosity, unrelated to earlier rational decision-making (such as a climbing race), may itself be indicative of a child's lack of capacity to appreciate danger or act in accordance with such appreciation, even if the child had some general knowledge of risks. (5) Evidence of a child's general schooling and warnings received about danger in the abstract is insufficient to rebut the presumption of incapacity if the specific conduct demonstrates typical childish impulsive behavior.

Scott JA made several non-binding observations: (1) The gender-based distinction in determining puberty (12 for girls, 14 for boys) established in Weber may be unjustifiable, suggesting that 14 years for both sexes may be more appropriate, as appears to be the case in criminal law. (2) While the Electrical Machinery Regulations do not require warning signs on pylons, the reason may be that it is common knowledge that pylons carry electricity, and signs are only required where accidental contact might occur without expectation of bare conductors. However, the court did not need to decide whether failure to erect warning signs constituted negligence. (3) It is virtually impossible to erect a barrier that is completely impenetrable, but this does not excuse Eskom from making the barrier effective - the standard is not impermeability but adequate protection. (4) The court noted that it would be unlikely that Jacques consciously disregarded danger to his life, suggesting that the most probable explanation was that he lacked full appreciation of the danger and became so engrossed in his fascination that he forgot about risks. (5) The court suggested that had Jacques simply lost his footing and fallen (rather than engaging in impulsive conduct), Eskom would likely have succeeded in proving he had capacity, as fear of falling from heights develops early in childhood.

This case is significant in South African delictual law for several reasons: (1) It provides important guidance on the application of the Weber test for determining child delictual capacity, emphasizing that the inquiry must be fact-specific and related to the particular conduct complained of, not capacity in the abstract. (2) It reinforces the distinction between the subjective test for capacity and the objective test for fault once capacity is established. (3) It clarifies that evidence of a child's general intelligence and schooling is insufficient to rebut the presumption of incapacity if the specific conduct demonstrates impulsive, immature behavior characteristic of childhood. (4) It demonstrates the proper application of section 26 of the Electricity Act's presumption of negligence and places significant responsibility on electricity undertakers to provide effective safety measures. (5) It establishes that compliance with industry standards (such as installing an ACD) will not shield a defendant from liability if those measures are ineffective in practice, even if properly designed in theory. (6) The judgment is a good illustration of how children's natural curiosity and impulsive behavior must be considered when assessing both the duty of care owed to them and their own capacity for fault.