It is a month since the devastating explosion in Boksburg on Christmas Eve, when a tanker transporting liquefied petroleum gas exploded after it became wedged beneath a bridge about 100m from the Tambo Memorial Hospital. 

Initially, 10 people were reported to have died in the blast, with 26 others seriously injured. The death toll has since risen to 41. The figure was confirmed by Gauteng premier Panyaza Lesufi last week. 

“This number is inclusive of 12 health workers. Five are still in various hospitals.”

He added that 23 people who had sustained various injuries had been discharged and that numbers “may change as we get more confirmations from the facilities”.

Meanwhile, the driver of the truck – employed by Infinite Fleet Transport through the agency Innovative Staffing Solutions – was initially taken into police custody but then released. Police said there was no case against him.

The driver and his employer were cleared of wrongdoing by an independent road transport safety system auditor, Transheq, as reported by TimesLIVE.

In response to the losses incurred and trauma endured by victims and families of victims, Johannesburg’s RH Lawyers intends to file a class action.

According to the firm’s Zain Lundell, the lawsuit will be filed against Innovative Staffing Solutions, Infinite Fleet Transport, the Passenger Rail Agency of South Africa, various stakeholders of the Ekurhuleni Metropolitan Municipality – including the police and firefighting department – and anyone else who may be liable for civil damages arising from the explosion.

Lundell said RH Lawyers currently represents 25 people, including those who were injured, those who have had a loved one die and those who suffered damage to property. 

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Richard Spoor, an attorney specialising in class actions, told Daily Maverick the case is perfectly suited for this type of legal action.

“There is a single event causing injury to a large number of persons, many of them poor and working class people, and it makes a lot of sense to litigate the matter as a class action as it is time- and cost-efficient, and the courts will have to consider the issues only once. 

“The claim will almost certainly be against the employer and be based on the employer’s vicarious liability for the delicts of their employee. I note that the driver was employed through a labour broking firm, but I do not think that will assist the employer, as the driver was working under their control and direction.”

Spoor added: “The claimants in the class action may join the Ekurhuleni metropolitan council as a defendant, because it does seem quite likely the employer will argue that the emergency services were negligent in their failure to evacuate the area after the tanker caught fire. 

“Conceptually, this could be a complete defence if a court found that the failure of the emergency services was the real cause of the victims’ deaths, although that is very unlikely … more likely the employer will argue that Ekurhuleni contributed to the harm and should therefore be liable for a portion of the damages,” said Spoor.

“It is worth noting that the employer of the tanker driver will need to prove that the failure of the Ekurhuleni emergency services to evacuate the area was the actual cause of the injuries and damage, or that that failure contributed to the extent of the damages.”

Spoor notes two possible problems with a class action:

• If the harm is found to have arisen “from the driving of a motor vehicle, then the claims will have to be made against the Road Accident Fund (RAF) and the victims will have no right to claim compensation from the company. Their damages claims will also be capped – in the case of loss of support claims, at R336,000 per annum. Loss of income claims are limited to the same amount.
• Class action proceedings are likely not appropriate against the RAF.

“There will have to be an inquiry into the accident, in terms of the Occupational Health and Safety Act, and this may be combined with an inquest. That will determine the criminal liability of the employer and the driver and make recommendations as to the measures that should be taken to prevent a recurrence.

“I would not place any reliance on the report commissioned by the company,” said Spoor. 

“The driver’s deviation from the route that should have been assessed as safe before the trip is in itself negligent, as is his decision to drive the vehicle under the low bridge in circumstances where he was unsure that there was sufficient clearance. 

“It is clear to me that there are problems with how safe clearance heights are determined in South Africa. A perusal of international standards shows that this is poorly regulated.” DM