Dear Folks

Whenever you go to the theatre again be sure to watch your step! There is indeed a phantom in the opera. It reared its ugly had as far back as 1989 at the State Theatre when Gaynor Young, a young actress playing the role of Guinevere in a performance of Camelot, fell 18 metres down an unguarded shaft and became permanently physically disabled. Then it reappeared in 2004 at the very same theatre and caused injury to an elderly lady who fell down some stairs while attending a performance of Phantom of the Opera. She sued the theatre for damages and it ultimately ended up in the Transvaal Division of the High Court as Vermooten v South African State Theatre [2006] (T) And you may ask what this has to with OHS legislation? Well in the 1989 case there was a prosecution and conviction in terms of the Machinery & Occupational Safety (MOS) Act albeit a small Admission of Guilt (fine) for failing to the guard the shaft on the stage into which the actress fell. The employer (Performing Arts Council of the Transvaal or PACT) was never convicted of negligently causing her injury, an offence which is also found in section 38(2) of the current OHS Act. If my memory serves me right the presiding officer of the Department of Manpower (now DoL) screwed up the inquiry, depriving the prosecution of the ability to charge and convict PACT and certain individuals of negligently causing injury. I say charge and convict because I am convinced that, had there not been legal technical difficulties emanating from the formal inquiry, a conviction would have been secured. My conviction (you get it?) is reinforced by the subsequent findings of the Transvaal Division of the High Court which, in Young v Workmens Compensation Commissioner and another [1998] (T), found that PACT was negligent vis-a-vis her injury and allowed her to claim increased compensation from the Commissioner. I am not quite sure why she never instituted a civil claim for damages because the prohibition on civil suits by employees against their employers was only introduced in 1994 with the advent of the COID Act. (Section 35). Be that as it may, the Judge in the case made some interesting observations about employee behaviour and how the courts would assess such behaviour in determining negligence. It was argued by PACT that Gaynor was conversant with the dangers of a huge void opening up on stage as machinery moved various sets around and was also trained as to safe manner of exiting a stage during a blackout. This, it was argued, made her negligent. Her legal council argued that her employer was negligent in that they were aware that a dangerous situation for the actors would arise at the end of scene nine, act one, when an artificial void was opened on the stage during a blackout, and that they failed to take adequate precautionary measures to protect the players, in particular Ms Young, the appellant, against this danger. It was accepted that Gaynor did indeed make an error of judgment and that this error was a factor in her falling into the 18 metre void. ‘The majority of the Workmens Compensation Commissioner tribunal found that she was properly rehearsed for her role as Guinevere and that she had been warned of all the dangers that might occur at the end of scene nine. She had made a mistake and did not stick to the choreography which had been planned for her and as she was instructed by the director. Therefore her action in turning left instead of right caused her eventual fall into the abyss and can only be attributed to her own negligence in losing concentration at that stage. The majority of the tribunal attributed to her a feeling that the role was almost over and that she relaxed her concentration as a result of which she made the aforesaid mistake. It is difficult to understand how they could have done so without having the benefit of her own evidence. It seems that the tribunal relied on the evidence of Joan Brickhill that actresses in her position often lose concentration when they think they have already successfully performed most of the play.

There is this different scenario which disturbs this reasoning and which renders the inference of negligence impermissible, namely, of an emergency which had arisen in her own mind akin almost to a feeling of panic, when she missed the OP truck and she knew that she had to get off the stage quickly in order to change for the next scene. She then took the wrong option and walked too far upstage and fell into the void. The sensible option would have been to stand still once she had missed the truck and wait to be fetched, but the need to hurry in order to change for the next scene, the fact that she was not apparently aware how close the void was to the OP truck which had then been removed, the fact that she had no practice with the moving truck during a blackout, in my view created an emergency in her own mind during which she took the wrong option. It seems that she followed the truck as she was instructed because she could see the top of the staircase in the reflected lights of the orchestra pit. The emergency which was thus created in her own mind was no less real than a physical emergency which occurs when a motor vehicle bears down on an approaching one on the wrong side of the road. In a number of decided cases it has been held that the person finding himself in an emergency created by someone else is not negligent if he makes an error of judgment and takes the wrong option under stress, provided the option which he takes is not an unreasonable one under the circumstances’. As early as 1941 the Appellate Division held that:

"Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had had both time and opportunity to weigh the pros and cons. Allowance must be made for the circumstances of their position."

In the end the court found that PACT was negligent and her application for increased compensation was successful. Section 56 of the COID Act also provides for increased compensation where an employer is found to have been negligent.

In the Vermooten case the court held that a reasonable person in the position of the State Theatre would have foreseen that the possibility exists that during the show a person who ventures into a dark passage might not see the stairs and as a result might fall and injure himself or her. Several factors contributed to making the stairs in question unsafe, e.g. soft and smooth carpeting on floors especially on the steps, poor illumination levels at the passages, lack of non-slip rubber or similar strips on the edges of steps, etc. Measures to address the above concerns, would have contributed towards making the stairs safer to traverse and would not necessitate great expenditure when one takes into account the possible injuries to patrons as it happened in this case. Mention was made of the fact that the State Theatre had contravened the OHS Act by failing to report the incident to DoL in terms of section 24 and to conduct an internal investigation in terms of General Administrative Regulation 9. I am somewhat puzzled by an allegation that the Theatre had failed to compile a Health & Safety Plan. As you know this is only a (contractor) requirement in terms of Construction Regulations 5. I assume that it was confused with a Risk Assessment which is generally not required to be documented or in writing save if employers work with certain hazardous substances, biological agents etc. Although the court was asked to pronounce on these contraventions, it felt was superfluous as it was a civil case and negligence had already been established thus paving the way for a damages award.

Lions are again in the news. Initially they were used as instruments to commit murder and now it seems as if they may be instrumental in a contravention of section 8 of the OHS Act or even to commit culpable homicide! News24 reports that 'The employers of two security guards who were killed by lions at Hennenman at the weekend should face criminal charges, the Labour Department said on Wednesday. "Following the completion of its investigations into the tragedy, the department has decided to refer its findings - as well as recommendations for prosecution against the victims' employers - to the Public Prosecutor," said department spokesperson Mokgadi Pela. Jacob Phoo, 36, and Ben Motlalentoa Tat, 54, were killed by a lion and two lionesses which had escaped from their enclosure at the Farm Game Lodge on August 9. Pela said one of the guards was employed by the owner of the Farm Game Lodge and the other by a security company. "Investigations by the department's inspectors in terms of the Occupational Heath and Safety Act revealed that both employers contravened the law by not ensuring that the working environment was healthy and safe for the workers." On Wednesday, Captain Rosa Benade of the northern Free State police, said an inquest into the deaths was still under way. "The matter is currently at the court. We are awaiting the court recommendation and then it will be forwarded to the DPP (Director of Public Prosecutions)," said Benade. She said the owner of the game farm had been summonsed to appear before the inquest'. So remember to keep your pet lions on a leash, particularly when taking them for walkies!

And speaking of inquests. If you wish to access my latest OHS Practitioner newsletter click here.

I’m still agonising as to whether I am going to do another OHS Legislation Roadshow in November but will keep you informed. I have a lot of competition these days and need at least 10 delegates per venue to make it viable. I remember the days when I was king of the (OHS) road (show). I cancelled Cape Town leg in June and still have egg on my face as one individual failed to get my cancellation notification and drove 8 hours to and fro to hear me preach. Are you guys in Cape Town gatvol of OHS legislation, me or both?

Subscribers may access the full Law Report of the Young case by clicking here and the Vermooten case by clicking here.

Regards

The Devil’s Advocate.