THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 241/10

In the matter between:

RUBEN ANTHONY FRY
Appellant

and

HULETTS ALUMINIUM (PTY) LTD
Respondent

Neutral citation:
Ruben Fry v Huletts Aluminium (241/10) [2011] ZASCA  28
(18 March 2011)

Coram:
NAVSA, CLOETE, SNYDERS, BOSIELO AND MAJIEDT
JJA

Heard:
14 February 2011

Delivered:
18 March 2011

Summary:
Factual causation - probabilities

ORDER

On appeal from: KwaZulu-Natal High Court (Pietermaritzburg) (Tshabalala JP
sitting as court of first instance).
The appeal is upheld with costs, including the costs of two counsel.
The order of the court below is replaced with the following:
‘a
The defendant is liable for the damages suffered by the plaintiff
due to the injury sustained in the fire at the defendant’s mill on 13
February 2002.
b
The defendant is ordered to pay the plaintiff’s costs of suit
including the costs of two counsel.
c
The preparation fees of the expert witness Mr Carr shall be
allowed on taxation.’

JUDGMENT

SNYDERS JA (NAVSA, CLOETE, BOSIELO and MAJIEDT JJA concurring)

[1] The appellant instituted action against the respondent in the KwaZulu-
Natal High Court, Pietermaritzburg, (Tshabalala JP presiding) for damages
suffered as a result of personal injuries he sustained whilst performing work at
the respondent’s S6 aluminium rolling mill in Pietermaritzburg. The appellant,
at the relevant time, was in the employ of Rallin Engineering CC which was
contracted to perform work for the respondent. Pursuant to an agreement
between the parties and an order by the court below the determination of the

quantum of damages was separated from all other issues in terms of Uniform
rule 33(4) and postponed for later determination. The remaining issues
between the parties were decided against the appellant and his action was
dismissed with costs. The appellant appeals against that order with the leave
of the court below.

[2] The respondent contracted with Rallin Engineering CC to fit a draining
valve in two pipelines that carried oil to its S6 rolling mill. On the morning of 13
February 2002 the appellant and three colleagues were despatched to
perform the installation. The appellant, a welder by trade, was accompanied
by a pipe fitter, Mr Houston, and a semi-skilled boilermaker and a labourer.
Their work involved cutting a segment out of each of the two pipelines and
fitting a valve into the space left by each of the segments. This description of
the work does, however, not convey the danger involved in performing the
task. Whilst they were busy with the execution of the work an explosion
occurred which started a fire in which Houston lost his life and the appellant
was injured.

[3] The environment in which the work was executed, the substances involved
and the equipment used posed a high risk of injury or damage. The work was
carried out in a basement underneath the rolling mill. The rolling mill had been
shut down for maintenance work. Access to the basement is only allowed
when the rolling mill is not in operation. The basement is a large area of about
500 square meters that consists of various rooms and passages which
accommodate the support services of the rolling mill itself. This includes

hydraulics, a cooling system, electrical installation and a carbon dioxide
pumping system required to extinguish the fires that regularly occur in the
rolling process. Due to the risk of oxygen deficiency posed by a carbon
dioxide installation access to the basement is restricted and tightly controlled.
A ventilation system consisting of fans on the one end of the basement and
an extractor on the other ensure the flow of air through the basement. When
the mill was shut down for maintenance, the ventilation system was also shut
down.

[4] Large storage tanks for the rolling oil used as lubricant and coolant in the
process of rolling aluminium are kept in a so-called clean oil tank in the
basement and conveyed to the mill through a network of pipes that run along
the ceiling of the basement up to the mill where it is sprayed onto the rollers.
The same oil, after use in the mill, is caught in a large pan and conveyed
through a network of pipes down into the basement to another large oil tank,
the so-called dirty oil tank from where it proceeds through a filter back to the
clean oil tank that again feeds the rollers.

[5] The product that was used in the rolling process by the respondent at the
time is called Shellsol D100. The manufacturer’s safety data sheet for this
product describes it as a solvent that may form a ‘flammable/explosive
vapour-air mixture’ and warns users to avoid heat, flames and sparks, not to
breathe the vapours and advises use only in well-ventilated areas. The
manufacturer explicitly warns that ‘residues may cause an explosion if heated
above 100 °C’.

[6] The work that had to be performed required the appellant and his
colleagues to use an oxy-acetylene cutting torch and a welding machine. The
former consists of two cylinders, one of which contains oxygen and the other
acetylene. Both cylinders are connected to a torch by separate hoses. The
cylinders are fitted with valves, regulators and flame arrestors through which,
once opened, the gas passes along the flexible hoses to the torch. The torch
is fitted with a further valve that regulates the flow of gas. Acetylene is a highly
flammable gas. When the acetylene and the oxygen are released in a
controlled fashion and lit, it produces an oxy-acetylene flame that is used to
cut very hard substances. The oxy-acetylene flame burns at temperatures as
high as 3300 degrees Celsius.

[7] Due to the risks posed by performing welding and oxy-acetylene cutting in
the basement the respondent was statutorily obliged to and took precautions
for the performance of this work, which was referred to as hot work. The
precautions included that the welding machine and oxy-acetylene cutting
equipment were visually inspected by Van der Mescht, who was designated
on behalf of the respondent to supervise the work. The purpose of the
inspection was to ascertain whether the equipment was in good order, free
from apparent safety issues. The welding machine, oxygen and acetylene
cylinders were not taken down into the basement, but left at ground floor level,
whilst only the cables of the welding machine and hoses and torch of the oxy-
acetylene cutting equipment were passed through a grid in the floor from the
ground floor to the basement.

[8] As part of the statutory safety precautions a so-called Hazard Clearance
Permit was issued by Van der Mescht to the appellant in terms of the General
Safety Regulations.1 The permit records that the work that had to be
performed was ‘HEAT PRODUCING WORK’ and involved a ‘FLAMMABLE,
TOXIC OR CORROSIVE SUBSTANCE HAZARD’. The appellant signed the
permit and by doing so he acknowledged that all the safety procedures had
been explained and understood and he undertook to ensure that all work be
completed in a safe and satisfactory manner. The safety precautions taken by
the respondent included the shutting down and locking of the pumps that
pump the oil to and from the mill and the storage tanks, closing of all valves,
draining the pipes of oil and washing down the entire area where the work
was to be performed with water. When the oil residue could not be cleanly
washed off the grids on the floor it was covered with sheets of wet cardboard.
The permit records the safety precautions undertaken and only after it was
issued were the appellant and his colleagues allowed access to the basement
to perform the work.

[9] The permit was issued shortly after 9 o’clock on 13 February 2002 and the
work commenced in the basement soon after that. The two pipelines that had
to be cut ran along the ceiling of the basement, within a meter from each
other. Segments were safely cut out by Houston, using the oxy-acetylene
torch. The appellant’s entire team then went back to the ground level to

1 GN R1031, GG10252, 30 May 1986, as amended, particularly regulation 9 that deals with
welding, flame cutting, soldering and similar operations. These regulations were promulgated
in terms of the repealed Machinery and Occupational Safety Act 6 of 1983 and are deemed to
have been made under the Occupational Health and Safety Act 85 of 1993 in terms of s 43(5)
of the latter Act.

modify the valves that had to be fitted in the openings that were cut. The
modifications detained them until the afternoon when they went back into the
basement.

[10] Upon their return it was evident that there was oil leaking from one of the
pipelines which had been cut in the morning. The appellant put his hand into
the pipe and felt that the oil was warm. Van der Mescht opened a valve and
drained the oil from that pipe. The pipe was not washed out. Houston, to Van
der Mescht’s knowledge, had to further trim the pipes with the oxy-acetylene
torch before the valves could be welded into place. For this purpose he
positioned himself near the ceiling of the basement. The appellant felt that it
was unsafe to continue with the work because of the presence of the oil in the
pipe and expressed that view to Van der Mescht. The latter instructed them to
continue with their work on the adjacent pipe that was not leaking oil whilst he
went to check the status of the valves in the pipeline on a computerised
control system. The oxy-acetylene torch was passed down from the ground
floor and handed to Houston. Upon striking the flint an explosion occurred
near the ceiling of the basement that caused a rolling fire.

[11] During the trial the respondent disputed that it owed the appellant a legal
duty to act without negligence and the court below found for the respondent
on this issue. The respondent required employees of its contractor to enter its
premises to perform dangerous work in a dangerous environment under its
exclusive control. It could hardly be said, as was found, that because the
appellant was not in the employ of the respondent that the latter owed him no

duty to act without negligence. Reliance was placed by the respondent on the
obiter dictum in Du Pisanie v Rent-A-Sign (Pty) Ltd & another 2001 (2) SA
894 (SCA) para 15 for the submission that the appellant, as an employee of
an independent contractor, did not have the benefit of a duty of care arising
from the regulations. Insofar as that judgment is to be understood to be
authority for such a submission I, regrettably, do not agree. In this court the
respondent rightly conceded that it owed the appellant a common law duty not
to act negligently and there is therefore no need to dwell on that topic further.2
The General Safety Regulations create a situation specific statutory duty that
essentially mirrors the content of such a common law duty, hence my
constant references to the procedure adopted in terms of the said regulations.

[12] The only issue on appeal is the factual cause of the explosion and fire.3
Should that be answered in favour of the appellant, it is to be accepted that
the failure to have provided a safe working environment is sufficiently closely
linked to the appellant’s loss for legal liability to ensue. Two potential causes
for the explosion were postulated. First, a leak in the oxy-acetylene cutting
equipment and second, vapours from the Shellsol D100. The expert witness
Mr Carr, a natural scientist specialising in chemistry, who testified for the
appellant, excluded the oxy-acetylene leak as a possible cause of the
explosion. Mr Froneman, a doctor in chemistry, who testified for the
respondent, excluded the presence of sufficient Shellsol D100 vapours to
have caused the explosion. The trial court found that the two versions were ‘of

2 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Storage (Pty) Ltd 2000 (1) SA 827 (SCA)
para 19; Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA) para 5.
3 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700E-H; mCubed
International (Pty) Ltd v Singer & others NNO 2009 (4) SA 471 (SCA) paras 22 and 23.

equal probability’ and therefore that it was ‘unable to determine which version
is the most probable’.

[13] The common cause facts provide the key with which to unlock the
deadlock that the trial court found to have existed. Upon their arrival the
appellant’s welding machine and Houston’s oxy-acetylene cutting equipment
were visually inspected by Van der Mescht for the specific purpose of
establishing whether it was safe to be taken into the basement and to perform
the hot work that was required. He found that all the equipment was in order
and indicated this on the Hazard Clearance Permit that he issued. Van der
Mescht was not wrong, as Houston subsequently cut two pipelines and the
oxy-acetylene cutting equipment performed without failure.

[14] Although witnesses described the smell of acetylene differently, they
were agreed that it has a very distinctive, unpleasant smell. The appellant’s
evidence that there was no smell of acetylene in the afternoon when Houston
struck his flint to light the oxy-acetylene torch, was never challenged. Both
Houston and the appellant were qualified and very experienced artisans in
their respective fields. They both handled the oxy-acetylene torch in the
afternoon when it was lowered through the grid in the floor from the ground
floor. The appellant handed the torch to Houston. It is highly improbable, if
acetylene was leaking in the basement, that Houston and the appellant would
not have smelled it and even more improbable that Houston would have
struck the flint or that the appellant would have let him strike the flint if they
smelled it.

[15] The suggestion that the explosion was caused by leaking acetylene is
purely speculative. The only objective fact which supporters of that theory
relied on was that the explosion occurred near the ceiling of the basement
and caused a rolling fire. This fact, they said, supported the theory because
acetylene is lighter than air and if it escaped would have gathered against the
ceiling, whereas the vapours from the rolling oil are heavier than air and would
have drifted to the bottom of the basement. Therefore, the argument was, the
fact that the explosion occurred at ceiling height favours the theory that the
acetylene leaked, accumulated against the ceiling and exploded when the flint
was struck.

[16] The location of the explosion should not be viewed in isolation. The
inspection of the equipment earlier in the morning, the successful use of the
torch and the absence of any acetylene smell give rise to probabilities that
outweigh the one that may arise on the location of the explosion. Reliance on
the location of the explosion alone loses sight of the following logic. First, the
lighter acetylene, assuming it was leaking from the hoses or torch that were
lowered into the basement, would also have escaped upwards through the
grid in the floor to the ground floor and an explosion would have extended to
that floor and caused a fire there as well, which it did not. Second, vapours
heavier than air would have drifted down from a source at ceiling height and if
ignited on its way down to the floor area would have caused an explosion at a
level higher than floor level.

[17] Counsel for the respondent rightly argued that the leaking acetylene
theory does not have to be established as the respondent had no onus of
proof. He further argued that the appellant failed to acquit the onus on him
because it was a physical impossibility for a sufficient amount of the rolling oil
vapours that are heavier than air to have travelled upwards from its source,
the clean oil tank, through the network of pipes and escape through the pipes
that were cut in the morning to have caused an explosion in the afternoon.

[18] The fallacy of this argument is illustrated by the presence of drilling oil
that leaked out of the cut pipe in the afternoon. It could also not have travelled
upwards. That vapours were present was common cause. Vapours came not
only from the oil that was leaking but from whatever source it leaked from. To
say there could not have been a sufficient body of vapours to have caused the
explosion that occurred is therefore pure sophistry. The only change in the
conditions under which the appellant and his team worked safely during the
morning was the presence of leaking rolling oil on their return in the afternoon.
This happened despite the pumps that pumped oil from the clean oil tank to
the rollers through the line that was cut, having been shut off and despite the
valves in those lines having been closed off.

[19] Mr Lancaster, a mechanical engineer in the employ of the respondent
with much experience of the respondent’s rolling plant, saw the orange glow
of the flames from the fire that followed the explosion and to him it looked
similar to the many rolling oil vapour fires that he had previously seen in that
plant, albeit never in the basement.

[20] Carr’s evidence supports the probabilities on the abovementioned facts.
He stressed that Shellsol D100 is not an oil but a solvent and under the
conditions that the respondent was using it, it degenerated, heat was
transferred to it, it was exposed to air, it formed a flammable mixture with air,
its instability increased and its flashpoint decreased.

[21] All these facts give rise to probabilities that convincingly tip the scale in
favour of a finding that the explosion and fire were caused by vapours from
the respondent’s Shellsol D100 rolling oil that ignited when Houston struck the
flint to light the oxy-acetylene torch.

[22] When the appellant and his team, under the supervision of Van der
Mescht returned to the basement in the afternoon, the conditions had
changed. The Hazard Clearance Permit that was issued in the morning for
working with heat producing equipment in the vicinity of and on the pipelines
that convey the rolling oil no longer correctly or validly recorded the safety
conditions achieved in the morning. In at least two respects the safety
precautions taken in the morning and recorded on the permit no longer
obtained. All flammable, combustible, toxic or corrosive material had not been
removed, suitably protected, neutralized or purged and valves and pipelines
leading to the work area had not been closed and locked out.

[23] Once there was such a significant change in the working environment in
the afternoon, the respondent was obliged to re-employ safety precautions to

ensure that the environment was safe to work in, as was done in the morning.
That is what the statutory obligation involved and what a reasonable person
would have done in the circumstances. Lancaster acknowledged that would
have been the reasonable and necessary thing to do. Having failed to do so,
the respondent was, unarguably, negligent.

[24] There was a considerable amount of debate during the trial whether the
basement where the work was performed by the appellant and his team
constituted a confined space in terms of reg 5 of the General Safety
Regulations. The trial court found that it was not. The significance of the
debate is that in a confined space the respondent had a statutory obligation to
test the air and have it pronounced safe by a competent person prior to any
work taking place. This was not done. Such a failure would be an indication of
negligence. In view of the conclusion reached the issue is not material, but it
remains relevant to inform future precautions. A ‘confined space’ in the
General Safety Regulations are defined as:
‘an enclosed, restricted or limited space in which, because of its construction,
location or contents, or any work activity carried on therein, a hazardous substance
may accumulate or any oxygen-deficient atmosphere may occur, and includes any
chamber, tunnel, pipe, pit, sewer, container, valve, pump, sump or similar
construction, equipment, machinery or object in which a dangerous liquid or a
dangerous concentration of gas, vapour, dust or fumes may be present.’ (My
underlining.)

[25] The basement where the work was performed falls within the definition
because of the undisputed facts for a variety of reasons. It is an enclosed

space. It contained the storage tanks and network of pipes for the rolling oil.
The rolling oil, and the vapour that escapes from it, are present in the pipes
and are hazardous substances that may accumulate. The oxy-acetylene torch
functioned with a hazardous substance and if it leaked the acetylene may
have accumulated. It was common cause between the parties at the trial that
the explosion occurred due to an accumulation of gaseous matter.
Furthermore, the plant was fitted with a carbon-dioxide fire extinguishing
system that was housed in the basement. Activation or leakage of that system
could create an ‘oxygen-deficient atmosphere’. As the air was not tested
before the appellant and his team continued their work in the afternoon, a test
that in all probability would have prevented the explosion, the respondent was
negligent in this regard as well.

[27] In the notice of appeal the appellant seeks a curious costs order that
would expressly allow costs on the high court scale for reasonable
consultation, preparation, travelling, attending of an inspection and witness
fees. In the same vein costs are sought for the preparation, report, qualifying
fees and attendance of the expert witness, Carr. Such an order is a matter for
the taxing master and therefore not competent except insofar as the
preparation fees of the expert witness are concerned.4

[28] For these reasons the appellant should have succeeded in the court
below. Consequently I make the following order:
28.1 The appeal is upheld with costs, including the costs of two counsel.

4 Transnet Ltd v Witter 2008 (6) SA 549 (SCA);[2009] 1 All SA 164 (SCA); Legal Aid Board v
S [2011] 1 All SA 164 (SCA).

28.2 The order of the court below is replaced with the following:
‘a
The defendant is liable for the damages suffered by the plaintiff
due to the injury sustained in the fire at the defendant’s mill on 13
February 2002.
b
The defendant is ordered to pay the plaintiff’s costs of suit
including the costs of two counsel.
c
The preparation fees of the expert witness Mr Carr shall be
allowed on taxation.’

_________________
S SNYDERS
JUDGE OF APPEAL

APPEARANCES:

For appellant:
J A Booyens SC (with him J M Singh)

Instructed by Volsum, Chetty & Lax, Pietermaritzburg,

Symington & De Kok, Bloemfontein.

For respondent:
A J Troskie SC

Instructed by Cox Yeats, Durban,

McIntyre & Van Der Post, Bloemfontein.