The matter of Halstead-Cleak v Eskom Holdings Limited and some observations for liability insurers.
Examines a recent court decision which dealt with strict liability under the Consumer Protection Act; Will be of interest to public liability insurers and brokers; and Will also be of interest to design professionals and consultants and to their professional indemnity insurers and brokers, particularly in the design-build/construct contractual arrangement, and in the context of the Occupational Health and Safety Act and the Construction Regulations. The Gauteng High Court, in the recent case of Halstead-Cleak v Eskom Holdings Limited  JOL 33332 (GP), held that Eskom was "100% liable" to the Plaintiff who had been riding a bicycle and who, inadvertently, came into contact with a low hanging live powerline spanning a footpath, sustaining serious burn injuries in the process.
Eskom was responsible for the power line in question which spanned two poles in the Nooitgedacht area of Gauteng, through which Eskom conducted electricity. The line was not used to conduct electricity to a user.
While Eskom might ordinarily have been liable in these circumstances under the common law (on the basis of negligence), what was exceptional in this instance was that the Court found that Eskom was strictly liable in terms of the Consumer Protection Act ("the CPA") (pursuant to the provisions of Section 61 of the CPA). This finding, based on the Court's interpretation of the CPA, has to some extent served to substitute strict liability for common law negligence beyond the intended scope of the CPA.
In terms of Section 61(1) of the CPA:
"...the producer or importer, distributor or retailer of any goods is liable for any harm, as described in subsection (5), caused wholly or partly as a consequence of
(a) supplying any unsafe goods; (b) a product failure, defect or hazard in any goods; or (c) inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be."
This Section accordingly imports strict liability for the producer, importer, distributor or retailer of goods (which are very widely defined).
Section 61(5) of the CPA defines "harm" as follows:
"Harm for which a person may be held liable in terms of this section...