Liability for breach of statutory obligations
The recent case of Joubert versus Buscor GLD 2016, December, is important because it touches on the question of civil liability where statutory obligations have not been met
Ilana Joubert, the plaintiff (in other words, the party suing) was the wife of the deceased. Her late husband was an electrical apprentice with Lira Electrical. Buscor was the principal that had contracted Lira to do its electrical work. Joubert’s husband was thus a contractor working on site. One of the contractor’s jobs involved working on a submersible pump at the bottom of a sump.
As the name implies, a sump is a confined space situated below ground level, which poses substantial risks. Invisible gasses that are heavier than air can displace the breathable air, and working below ground level can, therefore, prove fatal.
To make matters worse, the invisible gasses could be toxic. Joubert entered the sump to carry out the required task. He was overcome by toxic gasses and died as a consequence. The case involved a wife suing Buscor for loss of support for herself and her two minor children.
Readers can be excused for believing that the purpose of a court case such as this is to decide if one party is liable to the other. More often than not, the case revolves around secondary matters, not preliminary matters. This case involved a preliminary matter. The court, therefore, did not decide whether Buscor was liable to the wife and her two minor children – that was left for a later date.
When a plaintiff sues a defendant, the plaintiff sets out his or her case in what is known as the “particulars of claim”, which is attached to the summons. After the defendant has received the summons, he or she replies to the particulars of claim and the pleadings are closed.
The matter is then set down to be heard in court. It can be that the plaintiff, having considered the response of the defendant and having thought more deeply about the matter, decides that her particulars of claim should be changed. The defendant could be severely prejudiced by the change and thus the change to the claim may need the permission of the court.
In this case, Joubert decided to amend her particulars of claim and this was opposed by the defendant. The case thus involved the question of whether the court should allow the plaintiff, Joubert, to change her particulars of claim.
Strict liability for breach of statutory obligations
For our purposes, the change we wish to concentrate on relates to paragraph 26, which she wanted to change to: “The defendant is strictly liable for the plaintiff’s damages as a result of its breach of its statutory duties”.
What the plaintiff wanted to argue was that the mere failure to meet statutory obligations leads to civil liability. What does strict liability mean in practice?
Assume you are driving a car through town at night at 61 km/h and the speed limit is 60 km/h, and a hopelessly intoxicated man, dressed in black, suddenly runs across the street into the path of your car. There is absolutely nothing you can do to prevent the accident and he is killed.
Are you guilty of killing him? Should you go to jail for 15 years for culpable homicide, and are you personally liable to support his family − the wife for the rest of her life, and their children at least until they have graduated from university?
In terms of the common law, you are neither guilty of culpable homicide, nor liable to support the wife and children, simply because the accident occurred as a result of no fault on your part.
If, however, there is a doctrine of strict liability, then you become liable. The only question that becomes relevant in a world of strict liability is whether or not you broke the law. Well, travelling at 61 km/h means you were breaking the law.
Not surprisingly, strict liability for failure to comply with statutory requirements generally does not lead to civil liability. For example, in the 1986 Kinross mining disaster, welding was carried out, which caused the lining in a ventilation chamber to catch fire – leading to the death of 170 miners.
The mining regulations required that before welding could take place, a portable fire extinguisher had to be on hand. No such precaution was taken. The prosecution argued that the mere violation of the law meant Kinross would be liable − in terms of strict liability. The magistrate rejected that argument, since the evidence indicated that, even if the portable fire extinguisher had been on hand, it would have made no difference.
Statutory risk control
Most statutory requirements are, in any event, sensible in order to design a system of work that protects the health and safety of employees who do the work and, in some cases, that of third parties.
This is set out in the textbook by Vasamakis, Vivian and Du Toit: Fundamentals of Risk Management. Each regulation is converted into a checklist and entered into the planned maintenance system. Where applicable, each item is then inspected against the checklist and a record of the inspection is retained in the planned maintenance system.
This may sound simple, but in practice it is not. In a large industrial complex it could result in thousands of inspections. This could require the training of hundreds of people and keeping a record of this training. The system can become highly complex and requires some skill to manage.
There is, however, still no guarantee that success will be achieved. For example, after a particular motor-vehicle accident, it was decided to check the inspection records and interview the person who completed the daily inspection sheet.
It soon became apparent that the person who filled in the daily checklist had never inspected the vehicles. Every morning, he took out a list and ticked off the blocks. He was not being lazy; he thought that his job was to fill in the checklist, first thing every morning.
In another case, the inspection logs had been filled in, not just tick blocks filled in. However, in order to fill in the log, the employee had to use his access card to go from the control room to the machine room.
The computer log was correlated against the checklist and it became apparent the employee had never gone into the machine room. He had copied readings from previous checklists. He admitted that that was what he had done, as he had hurt his leg, and had difficulty in walking, so he stayed in the control room.
Other human failures creep in. Usually the regulations require the employer, or the user, to do something. By definition, the employer and user can be a company, which of course does not exist as a “person”, so cannot do anything. So, when the regulation requires an employer to do something, in fact it is an employee of the company who has to do something.
So, if the regulation requires that in a confined space the air must be tested, that means an employee must do the testing, since the employer (who does not exist as a person) cannot.
In one case, where work needed to be undertaken in a confined space, elaborate precautions were put in place. In the end, while in the confined space, which was oxygen tight, an employee decided to light a match and was burnt to death.
In this case, if strict liability applied, the employer would be liable because the safety regulation had been breached. The problem with this case, however, is that it was the safety officer who lit the match. It was his job to make sure matches (or lighters) were not taken into the confined space.
It should be clear that in most cases strict liability is unworkable. In the finance industry, regulators have produced more than 10 000 pages of regulations – which are impossible to read, let alone comply with. The United States Federal Register has now exceeded 85 000 pages.
In this modern age, strict liability for statutory instruments is an absurdity. In addition, Joubert was not an employee of Buscor, but a specialist contractor – which adds a host of additional problems.
As indicated, the Joubert case did not answer the question of liability − that was left for another day. Buscor argued against the amendment of the particulars of claim, which, inter alia, contained an argument based on strict liability. The court dismissed Buscor’s objection and allowed the amendments. The matter is now to be taken to the courts to be dealt with on its merits.
Legally Speaking is a regular column by Professor Robert W Vivian and Albert Mushai, both in the school of Economics and Business Sciences, University of the Witwatersrand. Robert W Vivian is a leading authority on insurance and risk management. He has written a number of books on South Africa’s business history. Albert Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining Wits University as a lecturer in insurance.