Staying out of harms way

My last OHS Chat & Skinner / Subscriber newsletter for the year. And I have decided to combine it with my special Subscriber Newsletter. Which is slightly sleazy but what can say. I need a holiday. In fact I close shop on Friday 10 December 2004 and reopen on 10 January 2005. Naturally I will take cellphone calls from Subscribers over this period, hopefully just to stall matters until I reopen!

Before I go further I would like to thank all those persons who attended my swansong OHS Roadshow in November. Despite (eventually) suffering from jetlag, I enjoyed all four shows particularly the interesting interaction. I also wish to thank ASPEN PHARMACARE in PE for coming aboard as a Subscriber. And then I need to apologise to all those who battled in ‘vein’ to reach me at the office from 22 to 24 November. As many of you read – and may have experienced – the Hursthill substation caught fire in Johannesburg turning outage to outrage! Fortunately I was on the road and missed all the drama. The cause is still under investigation although many views have been put forward. One common thread seems to be lack of maintenance. Come on Jo’burg City Power (Failure)!

As expected, things are slowing down and I will be updating my website less frequently. But since we are in an electrical ‘vein’ (I wish to thank the SA National Blood Services for the in-house OHS workshop in November – boy you guys really know how to court publicity!) and, with the media filled with reports of lightning fatalities, one real interesting court case has been posted on a legal website, namely that of the Stott civil suit. I am still, however, awaiting the full Law Report. You will recall that I did devote time to this case at the workshops and even in a previous newsletter. It pertains to indemnities as do so many civil suits these days. They remain controversial and frequently challenged in court and invariably have an OHS slant. For more on this case click on my homepage at www.klasslooch.com (scroll down to the lightning bolt) and the original press report can be accessed by clicking here.

Those of you cannot access the internet from work will recall the case of the widow who claimed compensation for loss of support after her husband was killed by lightning while playing golf in Johannesburg. She alleged that the club was negligent in failing to provide safe protection to members in the event of lightning strikes. Both she and her husband signed indemnities waving their right to sue the club for damages in the event of harm occurring to them. The court allowed the claim on the basis that she was suing for loss of support and not damages resulting from the harm that was caused to her husband. Very importantly the Supreme Court of Appeals (SCA) rejected the practice of excluding dependants from suing for compensation – so check the wording of your indemnities / disclaimers / ‘vrywarings’ again - but did reiterate the legality of one personally waiving one’s right to sue for damages by signing an indemnity document. Judge Harms (no pun or disrespect intended) also said that they had to consider "the radical nature" of a rule excluding liability for damages for the negligent causing of death at some time, but added that they did not need to decide now whether it could be done effectively. "It is arguable that to permit such exclusion would be against public policy because it runs counter to the high value that the common law and, now, the constitution place on the sanctity of life," Judge Harms said. You all recall that such an indemnity did succeed in the Durban’s Water Wonderland (SCA) case but that finding was restricted to the so-called ‘Ticket Purchasing’ cases. More information about this remark once I see the full Law Report. And this will be restricted to Subscribers only I’m afraid as the combining of this newsletter with their special Subscriber newsletter means I owe them big time! Naturally Subscribers will be able to access the full case when I get hold of it and post it on my website.

Next year should be real interesting from an OHS legislation perspective. The draft OHS (combined OHS & MHS Acts) Bill should be published for comment and we may see the birth of the new body that will police that Act. It means studying again and for me loads of new material for workshops and newsletters. Although as I’ve always said OHS law is OHS law is OHS law and we generally know what to expect.

I want to wish you all happy holidays and a prosperous, healthy and safe New Year. My thanks to all those who kept me occupied and out of mischief this year.

As always

Your Devil’s Advocate.

Click here for List of Subscribers.

All previous newsletters can be accessed from the homepage at www.klasslooch.com

Forgive me if you receive this newsletter twice. It will be a once off as some of you are on both my Distribution Lists.

PS. Can (sober i.e. with no alcohol in one’s bloodstream) swimming in False Bay be construed as ‘acting in willful disregard for one’s own safety’, a potential exclusion clause in life policies or, for that matter, volenti non fit iniuria, (voluntary acceptance of risk) a potential counter (defence) in a civil suit? If you are bored and want to air your views click here. But remember I’m on holiday………. soberly swimming….I mean dipping my toes into the icy Atlantic ocean in the Cape! That ocean will sober you up quickly anyway!

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