Hendrik Johannes Pitzer v Eskom

On 14 July 2006, the appellant, a qualified electrician employed by a private electrical contracting company, was electrocuted inside a live chamber of an electrical substation operated by Eskom in Vanderbijlpark. He was working in a control room outside the high voltage yard. The high voltage yard was under the control and supervision of Mr Fourie, an Eskom principal technical official. Mr Fourie left the premises at about 11h00 to go fishing, leaving the main gate to the high voltage yard open. The appellant noticed this and decided to close it after ensuring all painters (who were working in the yard) had left. Upon entering the yard, he found the door to the live chamber on the southern blockhouse open. He entered the chamber, believing it to be dead or decommissioned based on various factors including the open doors, dismantled equipment on the floor, and a burned-down room in the blockhouse. He sustained an electric shock when he came into close proximity to live equipment approximately three meters inside the chamber. The appellant sued Eskom for damages, alleging negligence. The trial court dismissed his claim, finding the injury was caused solely by his own negligence and that there had been voluntary assumption of risk.

• Whether Eskom was negligent in failing to secure the high voltage yard and live chamber
• Whether section 26 of the Electricity Act 41 of 1987 created a presumption of negligence in favour of the injured party
• Whether Eskom discharged the onus of proving absence of negligence or lack of causal link
• Whether it was reasonably foreseeable to Eskom that a qualified electrician might be harmed if entrances were left open
• Whether the trial court was correct in finding voluntary assumption of risk
• Whether the appellant was contributorily negligent
• Whether there was a causal link between Eskom's failure to secure the premises and the appellant's injury

The appeal succeeded with costs. The order of the High Court was set aside and substituted with: 'It is declared that the defendant is liable for fifty per cent of the plaintiff's proven or agreed damages.'

The binding legal principles established are: (1) Under section 26 of the Electricity Act 41 of 1987, when injury is caused by electricity transmitted by an undertaker's apparatus, there is a presumption of negligence that places the onus on the undertaker to prove on a balance of probabilities either that it was not negligent or that there was no causal link between its negligence and the injury. (2) It is reasonably foreseeable that even a qualified electrician may come to harm if high voltage premises are left unsecured, as qualification alone does not guarantee safety where the person lacks intimate knowledge of the specific apparatus, incomplete work, or layout. (3) An operator of a high voltage system has a legal duty to take reasonable measures to prevent injury to persons entering the high voltage yard. (4) For reasonable foreseeability in negligence, only the general manner of occurrence of harm need be foreseeable, not the precise or exact manner. (5) Causation is established if, but for the negligent act or omission, the harm would not have occurred. (6) Where both the plaintiff and defendant are equally at fault, damages may be apportioned accordingly under the principle of contributory negligence.

The court made several non-binding observations: (1) The court noted that there has been considerable debate over whether foreseeability of harm to 'someone' suffices for negligence or whether it requires foreseeability of harm to a person in the specific position of the plaintiff. The court assumed, without deciding definitively, that foreseeability of harm to a person in the appellant's position was required. (2) The court observed that the appellant's explanation for entering the live chamber was 'suspicious' but found that nothing material turned on this aspect given Eskom's clear duty to secure the premises. (3) The court noted that whether foreseeability is fact-bound means there is seldom assistance to be had from other cases that do not share all the same facts, particularly emphasizing that Kruger v Carlton Paper was materially distinguishable on its facts. (4) The court commented that the reason why the door to the live chamber was left open remained unexplained. (5) The court observed that objectively viewed, the appellant would have had no valid reason to assume it was safe to enter the live chamber and that the factors he relied upon were 'at best superficial.'

This case is significant in South African law for: (1) Clarifying the application of section 26 of the Electricity Act 41 of 1987, which creates a statutory presumption of negligence against electricity undertakers in favour of injured parties. (2) Affirming that the presumption places an evidential onus on the undertaker to prove either absence of negligence or lack of causation. (3) Establishing that reasonable foreseeability of harm extends to qualified and experienced persons (such as electricians), as their qualification does not guarantee they will not come to harm. (4) Demonstrating that in assessing foreseeability in negligence cases, what matters is whether harm was foreseeable in a general manner, not the precise or exact manner of its occurrence. (5) Confirming that operators of high voltage systems have a legal duty to take reasonable measures to prevent injury to persons entering high voltage yards, and failure to do so is actionable. (6) Providing guidance on the application of contributory negligence principles where both parties are at fault. The case is distinguished from Kruger v Carlton Paper of South Africa (Pty) Ltd on its facts.