SCA dismisses review application of company fingered in death of Linkin Park concertgoer

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  • Florentina Popa died when a scaffolding tower fell on her before a Linkin Park concert in Cape Town nine years ago.
  • The court found that Vertex Scaffolding CC, Bothma Signs and Hirt & Carter (Pty) Ltd had been negligent, and could be "causally linked" to her death.
  • The Supreme Court has upheld a ruling by the Western Cape High Court, dismissing the review application of the inquest finding.

Nine years after the death of 32-year-old Florentina Popa, who died when a scaffolding tower fell on her before the start of a Linkin Park concert in Cape Town, the Supreme Court of Appeal (SCA) has upheld a ruling by the Western Cape High Court, dismissing the review application of a media and advertising company fingered in an inquest finding.

Popa died when scaffolding structures, to which advertising material was attached, collapsed and caused open blunt force trauma injuries to her head at the Cape Town Stadium on 7 November 2012.

Several other concertgoers were injured.

An inquest by the magistrate, Ingrid Arntsen, ruled that the three companies, who played a role in putting up the scaffolding tower, were guilty of an offence.

Arntsen found the companies, who constructed and set it up, should have foreseen that even moderate winds could have blown it down.

READ | One dead, 19 injured after scaffolding collapses at Linkin Park concert

Arntsen found that Vertex Scaffolding CC, Bothma Signs and Hirt & Carter (Pty) Ltd had been negligent, and could be "causally linked" to her death, News24 reported.

Hirt & Carter took the finding on review in the Western Cape High Court, which was dismissed.

It then approached the Supreme Court to review the inquest finding.

According to court papers, the company – which specialises in designing media and advertising campaigns - was approached by Glaxosmithkline to assist with a campaign to advertise Lucozade at the concert.

Hirt & Carter had proposed that two towers be constructed, with the Lucozade branding wrapped around it.

Hirt & Carter then approached Bothma Signs, which it knew was "not a scaffolding expert", and this company then, in turn, approached Vertex, a "supplier of bespoke scaffolding solutions".

They were to erect the two towers and Bothma Signs would attach the wrapping, printed by Hirt & Carter, with a "banner hung akin to a washing line between the two scaffolding structures".

The court papers read:

On the day of the concert, the notorious Cape winds began to blow and, by 19:00, its strength increased to such an extent that it blew over the scaffolding structures to which the Lucozade banner was attached.

According to Arntsen's findings, it was "common cause that there had been no structural engineer sign-off and that the towers had not been properly secured, causing them to dislodge and fall on concertgoers".

Arntsen found that Vertex had been clearly negligent and had shown "disregard for essential measures, such as securing the towers to a concrete platform and not employing, as an alternative, the use of weights and steel wires to keep them secure and stable because those items were not in stock".

Bothma Signs, she concluded, were "well aware" of the threat Cape Town's wind posed and that a safety file was required with a sign-off by a competent person.

The SCA said the magistrate "held it against Bothma Signs that they did not even check the security file to confirm that fact".

"The sign-off was by workmen from Vertex, who did not hold a professional qualification. They had only received training by the owner of Vertex. They were the persons who constructed the towers without safety features."

Arntsen found that Hirt & Carter was not entitled to rely on assurances from sub-contractor Bothma Signs to "supply the correct documentation and expertise".

READ | eNCA suspends Lance Witten over ‘dying to see Linkin Park’ tweet

Hirt & Carter had contended the magistrate had erred when she found that it had omitted to supervise and manage the erection of the towers, "in particular the safety aspect, which was the sub-contractor's responsibility and which essentially was performed by independent contractors".

"The full court held it against Hirt & Carter that it did not even consider whether the proper certification was in place and did not insist on being given a physical inspection of the structure. [It] found that Hirt & Carter, having accepted liability for a safety compliance certificate 'was duty bound to ensure that the certificate in fact complied in form and substance with the requisite safety standards'."

According to the full court, Hirt & Carter's "reliance on the sub-contractors was misplaced, in that one was not dealing with contractual liability".

It dismissed the application for the review and setting aside of the magistrate's findings against Hirt & Carter, resulting in the company approaching the SCA for a review.

The appellant argued the magistrate had erred in her finding that Hirt & Carter had an obligation to supervise the erection of the scaffolding and manage the safety aspect of the project, criticising her for "making a determinative finding in relation to culpability and not adhering to the less stringent prima facie test".

According to the company's submission, to hold Hirt & Carter liable in these circumstances "would impact negatively on the commercial world, especially in relation to sub-contracting".   

Supreme Court acting Judge Sulet Potterill, with four judges concurring, found that the magistrate was careful to consider in detail a Hirt & Carter employee's involvement in dealing with safety issues and what factors he and Hirt & Carter were aware of.

Potterill said in her judgment on Friday:

The magistrate had regard to email correspondence in which the importance of the structural engineer's sign-off was emphasised. The magistrate took into account against Hirt & Carter that [the employee] did not, against all that was within his knowledge, take the time to look at the safety file.

"He failed to do so, despite having assured others that the safety requirements had been met and despite accepting that Hirt & Carter had undertaken to GSK that it would see to the safety aspects. It did not require any special expertise to look for a sign-off by an engineer. Confirmation of its absence might very well have averted the disaster that ensued.

"The magistrate was correctly unpersuaded that the sub-contracting of Bothma Signs and Vertex, against the facts of the case, could be relied on to exonerate Hirt & Carter."

According to Potterill, the magistrate "cannot be faulted for concluding that the death of the deceased was brought about by an act or omission that prima facie amounts to or involves an offence on the part of Hirt & Carter".

"It was premised on a finding of negligence on the part of Hirt & Carter. There is, in my view, no discernible material error of law by the magistrate of the kind on which a review might be founded. Indeed, I can find no error at all."

The flood of potential claims against commercial entities contended for, on behalf of Hirt & Carter, is illusory, Potterill said.

"Each case is decided on its own facts and we are here not dealing with civil liability. The magistrate and the full court were correct, against the background set out above, not to have its focus deflected by Hirt & Carter's reliance on the sub-contractors."

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