We recently shared an article on our Facebook page, which was published in the Daily Dispatch regarding open electricity boxes.

To further clarify the liability of a municipality for damage to property (such as livestock) or harm to a person as a result of an electric shock, we thought we’d elaborate on this topic.

The Electricity Regulation Act states that in any civil proceedings against a licensee (a municipality) as a result of damage or injury caused by means of electricity generated, transmitted or distributed by the licensee, the damage or injury is deemed to have been caused by the negligence of the licensee, unless there is credible evidence to the contrary.  In this respect, BCMM is a licensee as described in this Act.

So from the outset, this implies that the Electricity Regulation Act makes the cause of action in each case, one of negligence. That means that in each case, a Plaintiff would sue the municipality under negligence for the loss or harm caused.

The Act also implies that the municipality is required to prove that it was not negligent. The difference in this respect is that a Plaintiff who sues is usually required to prove the negligence of the other party, but in this case (which is very rare), the roles are reversed.  The municipality will have to prove that it was not negligent and that it took proper precautions to ensure safety. 

Going further however, when one sues under negligence, the ‘test’ employed to determine if someone was in fact negligent is the “Reasonable Person Test”.  There are 3 parts:

1. In this case, whether a reasonable person in the position of the municipality (or Eskom as the case may be), would foresee that persons, especially children, might climb onto or ‘play with’ the electric boxes, especially ones that are broken and have exposed wires, and come close enough to put themselves in danger of receiving a shock.
2. Whether a reasonable person would have taken steps to guard against the danger and ensure that the boxes, which are placed in open and public places, and which are accessible to the public, are made of sufficiently strong materials to prevent tampering and being broken into; alternatively steps to ensure that electricity boxes are maintained on a consistent basis so as to ensure that if tampering had occurred, that the boxes were immediately repaired so as to prevent harm to the public.
3. And finally, whether the municipality took any such steps, and if so, whether the steps taken were sufficient and reasonable in the circumstances (that also includes warning signs).

At the same time, however, what the courts regard as ‘reasonable’ would depend upon the circumstances of each case, and would involve the degree of risk created by the injured party, the gravity of the consequences of the harm if it materialises, and the burden on the injured party of preventing the risk of harm. 

That means that there would be a degree of negligence attributed to the injured party if :

1. he/she created the risk (by purposefully tampering with the live wires to steal electricity),
2. knew of the consequences if he was injured, and
3. whether he did anything to prevent being harmed (not tampering or not going near the live wires).

Generally speaking, when electricity thieves get shocked and injured, they will have no claim as they are knowingly and unlawfully tampering with and stealing electricity, knowing the consequences of the harm if they are shocked (seeing the warning signs on the electricity boxes), and despite all this do it anyway.

However that is not the case where a child or person, by reason of an accident, gets hurt. 

Certain children (under 7 years), are deemed not to have capacity (the capacity to understand and comprehend as an adult could) and therefore no negligence can be attributed to them.  That is to say that they can’t be found partially negligent because they didn’t keep away from exposed wires despite the warning signs, as they are too young to understand the danger.

Children from 7 to  14 years are presumed not to have capacity, unless the contrary is proved, while children over 14 years do have capacity to understand, and therefore will be seen to have an adult’s capacity and thus negligence can be attributed to them.

This does not mean that children or adults over 14 years old will not have a claim if they are injured and didn’t heed the warning signs.  It simply means that the court may reduce the amount of their claim if it attributes negligence to such person or child.  For example, if there were warning signs, showing the dangers but the children played near or with the wires regardless.

There is accordingly no “clear” claim that anyone may have, as each matter is decided on a case by case basis.  A proper fact analysis by an attorney will be required to determine the validity and extent of a claim.