Van den Heever v Bray and Another (867/2011) [2016] ZANCHC 82 (9 September 2016)

Van den Heever v Bray and Another (867/2011) [2016] ZANCHC 82 (9 September 2016)

The court found that the defendants failed to maintain a safe electrical installation, did not possess a valid certificate of compliance, and neglected to provide a health and safety plan or fall protection equipment as required by the Occupational Health and Safety Act and its regulations. The plaintiff's injuries were foreseeable and preventable had the defendants complied with their statutory and common law duties. The evidence of the defendants' expert was found to be unreliable and partisan, while the plaintiff's evidence was credible. The court rejected the argument that the plaintiff was legally obliged to issue a certificate of compliance and found that the only contributory...

Citation
[2016] ZANCHC 82
Parties
Plaintiff: Nicolaas Jacobus van den Heever; Defendant: John Marchant Bray; Defendant: Bray’s Foodmarket (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
9 September 2016
Case Number
867/2011
Procedural Posture
Delictual Action / Merits Only Liability Separated From Quantum
Outcome
Plaintiff succeeds on the merits; defendants held 90% liable for proven damages.
Judges
Mamosebo
Legal Topics
Occupational Health and Safety Act, Electrical Installation Regulations, Contributory Negligence, Fall Protection, Certificate of Compliance, Duty of Care
Delict Labour Law Occupational Health and Safety Act Electrical Installation Regulations Contributory Negligence Fall Protection Certificate of Compliance Duty of Care

Case Brief

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Parties

Nicolaas Jacobus van den Heever

Plaintiff

John Marchant Bray

Defendant

Bray’s Foodmarket (Pty) Ltd

Defendant

Procedural Posture

Delictual Action / Merits Only Liability Separated From Quantum

Legal Issues

  1. 1 Whether the defendants breached statutory and common law duties regarding the safety of electrical installations on their premises.
  2. 2 Whether the absence of a valid certificate of compliance and failure to provide a health and safety plan constituted negligence.
  3. 3 Whether the plaintiff was contributorily negligent for failing to wear fall arrest gear.

Ratio Decidendi

The court found that the defendants failed to maintain a safe electrical installation, did not possess a valid certificate of compliance, and neglected to provide a health and safety plan or fall protection equipment as required by the Occupational Health and Safety Act and its regulations. The plaintiff's injuries were foreseeable and preventable had the defendants complied with their statutory and common law duties. The evidence of the defendants' expert was found to be unreliable and partisan, while the plaintiff's evidence was credible. The court rejected the argument that the plaintiff was legally obliged to issue a certificate of compliance and found that the only contributory...

Court Disposition

Plaintiff succeeds on the merits; defendants held 90% liable for proven damages.

Orders

  • The defendants are liable jointly and severally to compensate the plaintiff in respect of 90% of his proven damages.
  • The defendants are to pay the costs of the action in respect of the merits, including the qualifying expenses of Mr Mark Palmer (including his travel and accommodation expenses).