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[2010] ZAGPPHC 234
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SPX Technologies (Pty) Ltd v Betterect (Pty) Ltd (35421/07) [2010] ZAGPPHC 234 (15 December 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO: 35421/07
DATE:
15/12/2010
IN THE MATTER BETWEEN:
SPX TECHNOLOGIES (PTY)
LTD
.........................................................
PLAINTIFF
AND
BETTERECT (PTY)
LTD
......................................................................
DEFENDANT
JUDGMENT
OMAR, AJ
This
is an action in which the plaintiff claims an amount of R1,8 million
(reduced to R1 794 953,40 during the trial) from the defendant
on the
basis that the defendant failed to fulfil its contractual obligations
to the plaintiff in the carrying out of the work commissioned
by the
plaintiff during September 2005.
Counsel for the
plaintiff, in his opening address submitted that the plaintiff’s
claim is based on four (4) interrelated
contractual grounds, namely:
a) A warranty contained
in the standard terms of contract;
b) That defendant
contracted to produce the shafts in a proper and workmanlike manner;
c) That
defendant would supply equipment capable of performing the purpose
for which it was
purchased and failed to do
so;
d) That defendant
undertook to produce welds which were continuous and free of
imperfections.
The
case is about, what the plaintiff says is poor welding and what the
defendant says is poor design. What the defendant says
is that none
of those causes of action covers a situation where the failure of the
shafts was due to a design fault, and the defendant
denies that it
was caused by poor workmanship. The plaintiff quite
readily
concede
that, if it is established that
it was because of the design that these welds of the flanges onto the
shafts failed, then the plaintiff
does not have a case. The
plaintiff says that because of bad welding and the cost of replacing
the shafts, the plaintiff should
be put in a position that it would
have been in if the contract had been performed. Although the
quantum is not admitted, the
plaintiff will lead evidence on what it
spent.
According to counsel for
the plaintiff, the question to be resolved is thus whether the
plaintiff has established either a breach
of the guarantee, a failure
to effect the work required in a proper and workmanlike manner or
that the welding performed by the
defendant was neither continuous
nor free of imperfections. If so, the plaintiff would further need
to establish, that such shortcoming
lead to the failure of the
shafts.
Counsel for the defendant
submitted that the concession made by counsel for the plaintiff, in
his opening address, was quite rightly
made as, in order for the
plaintiff to be successful in its claim, it must prove that the
alleged defective workmanship (which
is denied) was the cause of the
failure of the shafts and, therefore, the cause of the plaintiff’s
damages.
It is common cause that:
a) The agreement between
the parties was concluded during or about September 2005 and that
both parties were duly represented.
b) The plaintiff placed
two written orders with the defendant annexed to the particulars of
claim as annexure “A”.
c) Annexure “A”
incorporates the contents of annexure “B” to the
particulars of claim and the guarantee.
d) The guarantee relates
only to defective workmanship.
e) The defendant was to
conduct its work in accordance with the drawing annexed to the
plaintiff’s particulars of claim marked
annexure “C”.
f) The drawing specified
a weld which was not a full penetration weld, a landing of 10 mm and
a weld preparation angle of 30°.
g) The defendant in
concluding the agreement did not profess to be knowledgeable in the
process of biox slurry.
h) There was a lack of
fusion and penetration between the welds.
The
plaintiff called four witnesses to testify on its behalf, namely
Mr JA Derham, Mnr MC Van Wyk, Mr G Kotze and Mr AA Cordozo.
The defendant called five
witnesses to testify on its behalf, namely Mr Wehmayer, Mr DP
Bosman, Mr C Felipe, Mr LG Kometas
and Mr RD Klima.
Mr. Derham and Mr Van
Wyk testified as expert witnesses on behalf of the plaintiff and Mr
Kometas and Mr Klima testified as expert
witnesses on behalf of the
defendant.
The evidence of Mr
Derham, briefly, was that he has a B. Tech degree in mechanical
engineering and a PHD in computational fluid
dynamics. He began his
professional career in 1972. He is currently a business unit manager
for Mixers in EM & A and had
exposure to welding technology. He
was aware of the contract which forms the basis of this matter in
that the defendant was contracted
to fabricate certain shafts for the
Bogoso mine in Ghana. He first became aware of the problem during
January 2007 when he was
informed that one of the shafts had failed.
Because the relationship between the UK and South Africa was very
supportive to South
Africa for technology, he was made aware of the
failure. Mr Van Wyk of BIE was then sent to Ghana to make an
investigation. During
April, May or June 2007 more shafts had failed
and probably one of the conclusions of the BIE report was that there
was a potential
for other shafts to fail. A decision was taken to
manufacture then (10) replacement shafts on an immediate short-term
basis and
to send those to Ghana and have the original shafts changed
out. He was part of the decision and because there is a lot of
competition
coming into the biox field for the supply of equipment,
these contracts are worth several million dollars to the company who
wanted
to maintain its dominant position. Had the company decided to
leave the shafts and wait until a shaft failed before replacing it,
relationships would have soured with Goldfields and the mine in Ghana
because they would not have been producing gold. During
September
or October 2007, he visited the site to review general conditions at
the job site, to look at the success of the replacement
programme
that would have been put in place for the shafts and to talk about
problems that existed at the job site. He was taken
to a compound
store where there were a total of five (5) shafts located which he
visually examined and took photographs off which
is marked as exhibit
“B” in the papers.
From his observations and
what is contained in these photographs, he drew the conclusion that
the welding of that joint was of poor
quality. He could see from the
photographs and could also refer back to the BIE report that there is
clear evidence of lack of
fusion between the flange and the bar which
constitutes the shafts: the weld material had not adhered to both
the flange and the
bar in many areas. He drew the conclusion that
there was no adequate fusion between the flange and the shaft or the
bar and the
shaft and it indicated poor workmanship and lack of
fusion. The photographs correlate with what he had observed. The
fact that
he could see that there were machine marks indicates that a
total lack of fusion occurred in that area. It was common cause that
the weld between the flange and the bar was not a full penetration
weld because there was a 10 mm landing. The flange coupling
was not
prepared correctly. Because he wanted to satisfy himself completely
and absolutely, that access of a welding rod into
the area, the root
of the bar to the flange, was made accessible, a full scale test
model was made and access was perfectly accessible.
During June 2007
his company was busy supplying a similar product to another mine
somewhere in Uzbekistan and have not suffered
any failures. He
disagreed with Dr. Clemen’s report stating that failure due to
weld defects, wrong welding perimeters or
bad workmanship appeared to
be highly unlikely as no such evidence could be found.
Under cross-examination
by counsel for the defendant he stated that he is no longer involved
on the technical side and after the
last four to five years he has
been involved on the business side and is therefore no longer exposed
to the technical side of welding
of this nature. The relationship
between the plaintiff and his company is close and supportive and
share in each other’s
income. By the time he attended the site
in order to conduct his inspection he had already seen Mr Van Wyk’s
report and
had heard the complaints of the plaintiff in regard to the
alleged defective workmanship. He requested the shafts to be changed
out before a proper inspection had been undertaken by him. His
inspection was merely a visual inspection and that no scientific
or
metallurgical testing had been done in order to determine the cause
of the defects. No cutting or any micro-sections or macro-sections
had been done. He had only inspected the shafts during October 2007,
some ten months after the failure of the first shaft in January
2007
during which time the failed shafts had been lying in a compound.
During the time the shafts were lying in the compound,
they were not
in an elevated position but were lying on the ground and were exposed
to the elements which caused rust and no steps
were taken to minimise
their exposure to the elements. He had seen the shafts before they
had been installed but raised no concerns
regarding any of the
workmanship which would have been apparent from a visual inspection
thereof. The plaintiff did not provide
the QCP to Mr Van Wyk for the
purpose of conducting his investigation. In his view the QCP was not
signed off by the plaintiff
and he was surprised that it was signed
off by Mr Bosman purporting to act on behalf of the plaintiff. He
confirmed that the QCP
was in the plaintiff’s possession and
was therefore aware of the fact that Mr. Bosman was purporting to act
on behalf of
the plaintiff and did not raise any concerns. In
purporting to sign the QCP on behalf of the plaintiff, he verified
that the equipment
had been manufactured in accordance with the
standards required by a final inspection and release and verified
that the work conducted
by the defendant had been carried out in
accordance with the drawings. He was not a qualified metallurgist
and was therefore not
in a position to dispute the findings made by
Mr Kometas, the defendant’s expert. He did not agree with the
recommendations
of Mr Van Wyk, the plaintiff’s other expert,
that the weld preparation be changed from an angle of 30° to a
minimum of
45° – 60°, that the weld preparation be
changed to full penetration weld and that the drawings be changed.
He also
stated that the sample utilised by Mr Kometas and Mr Klima is
too small and is not reflective of the equipment.
The evidence of Mr Van
Wyk, briefly was that he is currently a Technical Manager for a
company called British Inspection Engineers
which is involved in
quality assurance and quality control expediting of projects. During
February 2006, he was instructed by
the plaintiff to investigate the
cause of a failure on a shaft to flange configuration at a plant in
Ghana. He was not supplied
with any documents at all, although he
requested it. He had a look at the flange and took some photographs
which are part of the
court documents. He brushed it clean because
it was full of dirt and mud. He was assisted by Mr Gouws who is the
Ultrasonic testing
representative from Gamex. He is not a designer
and he was just there to make observations and to make a
recommendation. He reached
certain conclusions which are stated in
his summary and which forms part of the court documents. Two other
shafts were inspected
at the site where they took the gearboxes off
and he was witness to the specific inspections but the report was
done by Mr. Gouws.
Ultrasonic testing was done to determine any
defects. He could not say what the defects were because the probe
shows that there
is no continuity of weld material. He does not
agree with the defendant’s contention that because of the angle
that was
too small and because of the fact that it was not a full
penetration weld that this led to its failure. He stated that you
can
still get a good weld without the full penetration weld. He
agreed with the reports of Mr Klima and Mr Kometas because they
looked
at a very small portion of the weld. He did not dispute that
there were sections where the weld was good. He stated that if you
look at the rest of the weld there are imperfections.
On a query by the court
he stated that with a k-prep design you will not get a full
penetration weld because of the 10 mm landing.
He stated further
that it was lack of fusion which led to the failures which is
indicated in the machining marks in the parent
material.
Under cross-examination
by counsel for the defendant he stated that he was not qualified to
express an opinion on aspects relating
to design and gave his opinion
and recommendations based on his experience. He recommended a full
penetration weld as an x-ray
could be performed of the weld to
determine the extent of any imperfections. In the absence of a full
penetration weld, the extent
of the imperfections cannot be
conclusively determined. He stated that an ultrasonic examination
cannot determine the cause of
defects and that a full penetration
weld was less likely to fail then the weld in question. For a full
penetration weld, a 10
mm landing is not appropriate and he
recommended that the angle be changed to an angle of 45° as a
reasonable welder would
find it difficult to manipulate the welding
rod at an angle of 30°. There is no such thing as an absolutely
perfect weld or
a weld which is absolutely free of imperfections.
Where the drawing refers to all welds to be continuous and free of
imperfections
with regard to the reasonable welder this can only mean
as is allowed by industry standards and as is possible in complying
with
the contents of the drawing. He confirmed that the QCP is used
throughout the course of the defendant manufacturing the equipment
and it is customary for the QCP to be signed off by both the
plaintiff and the defendant as this ensures that it is a binding
document. If any milestone in the QCP is signed off on behalf of the
plaintiff, the defendant is entitled to accept that the plaintiff
is
satisfied with the work conducted in accordance with that milestone.
He knows Mr Bosman personally and if Mr Bosman’s
signature is
present in signing off a particular milestone in the QCP, he is
satisfied that that milestone has been coupled with.
The milestones
in the QCP are decided when the QCP is drawn up and are signed off
once that milestone has been coupled with.
He confirmed that the
presence of Mr Bosman’s signature on the QCP at line 3.6
indicated that the plaintiff accepted that
the work conducted by the
defendant was as per the drawing. He stated that the purpose of an
ultrasonic examination is to verify
that there are defects and not to
determine the cause of such defects and the purpose of a
metallurgical examination is to determine
the cause of the defects.
He is not qualified to state that the findings of Mr Kometas are
incorrect and does not dispute the
findings by Mr Klima and Mr
Kometas. Further he cannot disagree with the conclusions made by Mr
Kometas and Mr Klima but states
that, that applies only in respect of
the sample which they inspected. He agrees that in the absence of a
metallurgical inspection
on the balance of the equipment, the
plaintiff cannot prove in respect of the balance of the equipment,
the failure in the shafts
was not caused by the design. If it is
established that the lack of fusion and penetration was as a result
of the design, the
plaintiff does not have a case.
The evidence of Mr Kotze,
briefly, was that in September 2005 he was employed by the plaintiff
as a Projects Co-ordinator and was
tasked with executing all the
orders for the equipment that had to be built. He was not involved
in the execution or negotiation
of the contract between the parties
but in January 2007, got involved with the replacement of the
equipment in Ghana. He was involved
in sending Mr Van Wyk to Ghana
to investigate what the problem was with the failure of the shafts.
After he received the report
from Mr Van Wyk he obtained the PQR from
the defendant. The plaintiff had come to the conclusion that the
equipment was not manufactured
to standard and opted to place an
order with a different supplier to get the replacement equipment. He
stated that a summary of
all the costs incurred by the plaintiff for
the replacement equipment is reflected on annexure “X” to
the minutes of
the pre-trial conference and verified the items
thereon and the amounts.
Under cross-examination
by counsel for the defendant he stated that he was not the author of
annexure “X” which was
compiled using the data procured
by another individual who was not called as a witness. He conceded
that he was unable to verify
that those costs reflected in annexure
“X” did not correspond to any supporting documentation in
the bundle. He also
conceded that the items contained in annexure
“X” which make up the plaintiff’s claim was not all
related to
the reasonable cost of the replacement of the shafts. He
stated that the only item which relates in his view to the actual
cost
of replacement of the shafts was item 7 in a total amount of
R962 089,00 (excluding VAT) and the other items expressed in
annexure “X” constitute consequential losses. He further
conceded that it was impossible to tell whether the shafts
which were
originally contended by the plaintiff to constitute the replacement
shafts were, in fact, the replacement shafts as
he was not sure which
of the shafts came from DB Thermal and which of them came from
Eastern Engineering. He further conceded
that what Eastern
Engineering effectively then charged for the reasonable cost of
replacing ten (10) shafts was an amount of R314
440,00.
The evidence of Mr AT
Cordozo was to the effect that he was the Construction Manager at
that point in time responsible for the construction
and commissioning
of the plant. He requested the plaintiff to speed up the process of
providing replacement shafts for the shafts
that have failed during
the commissioning stage of the project. He expressed an opinion that
poor fabrication techniques had been
used to weld and manufacture the
shafts that have failed and which opinion was objected to by counsel
for the defendant as he has
not qualified as an expert in this
matter. He stated that a number of shafts were repaired by his
company and re-instated back
into operation. He stated that he knew
that shafts which had not failed were going to fail because he had
seen the crack propagation.
Under cross-examination
by counsel for the defendant, he stated that he became aware of the
drawings after the damages had taken
place. He confirmed that, in
his attempt to repair the shafts he used a 60° angle to grind out
the weld deposit and at least
ten (10) of the shafts were
operational. He did not inform the defendant that in the event of
the shafts failing, new shafts would
have to be put in on an
expedited basis as a matter of urgency.
That was the case for
the plaintiff.
Mr A Wehmayer was the
first witness to testify on behalf of the defendant. His evidence,
briefly, was that he is employed by Eastern
Engineering as an
engineer and has been there for 28 years. This company was
approached by the plaintiff to provide 17 replacement
shafts, some of
which were to be used at the Bogoso mine in Ghana. He was told that
the shafts which he was to manufacture were
to be used as replacement
shafts in respect of ten (10) shafts that had been previously
manufactured by the defendant and which
had failed. His company was
given specific instructions regarding the work to be carried out and
was given a drawing which contained
the design in accordance with
which the work was to be conducted. The drawing forms part of the
court bundle and provides for
a full penetration weld, a 3 mm landing
and an angle of 45°. When he did ultrasonic testing he found
that there were shortcomings
in the weld in some of the shafts. He
stated that when a welder is tasked to manufacture shafts like this,
he is not knowledgeable
in the processes and procedures involved in
the agitation of biox slurry. He stated that what the words
“continuous and
free of imperfections” means for his
drawing is different to what it means for the defendants drawing as
the defendant’s
drawing dictates a 10 mm landing and not a full
penetration weld. He sated that it was impossible for the defendant
to remove
any hairline cracks, slag inclusions or other imperfections
whereas in the drawings that was given to him there was a full
penetration
weld so he could remove those imperfections.
Under cross-examination
from counsel for the plaintiff, he stated that there are other
advantages of a full penetration weld and
not only that it is easier
to test the quality of the welding because you can use x-rays as
opposed to ultrasonic testing. He
stated they were not told that
those manufacture of the shafts was for the biox filters but they
knew that it was for agitators.
Further he stated that a welder is
not knowledgeable in the process of agitating biox slurry.
The second witness to
testify on behalf of the defendant was Mr DP Bosman. His
evidence briefly was that he is presently
a Quality Assurance Manager
employed by the defendant. During September 2005 he was contracted
to both the plaintiff and the defendant.
He is aware of the project
which forms the subject matter of this litigation. He was contracted
to perform quality control work
for both parties. The quality
control plan (“QCP”) is a document where steps are laid
out for fabrication of various
parts. The QCP is referred to as a
“living document” which means that the document is
utilised throughout the performance
of the work and sets out
particular milestones within the work and ensures in certain
instances that the next milestone is not
proceeded with until the
previous milestone has been signed off and approved by him as
representative of the plaintiff. He was
an independent quality
manager to ensure that the defendant was doing its work. After the
welding has been done, the machining
of the shaft will take place as
per the drawing. The end product will be the machining of the
complete shaft with a flange welded
to it. After everything has been
completed on the shaft, the welding and the machining, a final
inspection is done and the shaft
is released as fabricated. The
plaintiff was aware of the state of affairs and never raised any
complaints regarding the quality
of the work or the fabrication
process.
Under cross-examination
by counsel for the plaintiff, he stated that he received a combined
salary of R28 000-00 per month from
both parties, the plaintiff
paying approximately two-thirds of that amount. His tasks on behalf
of the plaintiff were to ensure
that the defendant complied with
quality control procedures. He did not agree with the proposition
that, when he acted for the
plaintiff, they would prefer him to be
stricter and whereas the defendant would prefer him to be lenient.
He stated that at the
end of the day, he would be responsible for the
quality of the product. He did not do an ultrasonic testing, as he
did not deem
it necessary because of the lack of fusion in the weld
and that repeated reflections will be coming from that interface,
although
the QCP specified an ultrasonic test to be done. He stated
that the drawings show lack of fusion and prescribes a 10 mm landing,
so there is not going to be a full penetration weld. He did not
agree with the proposition that he deliberately allowed the defendant
to compromise the quality of its workmanship so as to be able to save
costs.
The third witness to
testify on behalf of the defendant was Mr C Felipe. He
testified that he is presently employed by
the defendant as an
Engineering Co-ordinator. During September 2005 he was employed by
the plaintiff as an Engineering Manager.
He was involved in the
project when he got all the drawings from overseas. He confirmed
that the reference in paragraph 3 of
the particulars of claim to the
plaintiff’s representative in concluding the contract is a
reference to him. When the job
went out to tender, they used the
drawing which had a forging instead of a welded flange. With regard
to the comment by Mr Derham
that this particular design was utilized
by the plaintiff in various parts of the world and has not led to a
failure, he disagreed
with the comment and stated that this has never
worked on that particular drive that they were doing. Although the
plaintiff does
use this particular design in other places around the
world, it does not use it on shafts of this nature where there is a
gearbox.
This design was never utilised before this instance for
shafts of this size where a gearbox was present. The internationally
used design for the manufacture of shafts which is supplied by the
plaintiff to fabricators stipulates a forging and there are no
welds.
Under cross-examination
by counsel for the plaintiff he stated that this was the first
project of this size that he was involved
in. He further stated that
the defendant was awarded the tender because they previously did work
for the plaintiff and they were
good at what they were doing. The
defendants quote was not the lowest quote.
On re-examination he
stated that it is basically the defendant and Mr Danie Bosman on
behalf of the plaintiff who was involved
in having consideration of
the QCP.
The fourth witness to
testify on behalf of the defendant was Mr LG Kometas. He
was an expert witness and testified briefly
that he is a qualified
metallurgist and runs his own company and consults in the field of
metallurgy on a broad spectrum also specialising
in welding and the
metallurgy of welding. He has worked in this industry for
approximately 29 years. From 2002 he established
his existing
company Metfocus Metallurgical Services which is an independent
organisation. He had done work for both the plaintiff
and the
defendant previously. In September 2007 he was requested by Mr R
Klima to conduct a metallurgical investigation into the
likely cause
of failure of a welded flange or shaft assembly from a site in Ghana.
He received a sample of the failed flange or
shaft and proceeded to
conduct his metallurgical investigations for which he produced a
metallurgical report. There were in fact
two reports, a preliminary
report and a final report. The only difference between the two
reports is that there was some outstanding
information and some
chemical analysis results outstanding and basically the conclusions
and recommendations are the same. The
reports form part of the court
documentation. Mr Kometas provided the court with a brief synopsis
of what the metallurgical reports
entail and also explained the steps
taken by him in conducting his investigation. The conclusions of the
investigations conducted
by Mr Kometas were that the welding work
conducted by the defendant did not contain any defective workmanship.
The failure in
the weld was caused by the design which was given by
the plaintiff to the defendant. The welding work performed by the
defendant
was within acceptable standards. Where you have a landing
area of 10 mm and a welding angle of 30°, a full penetration weld
is impossible. If that is considered together with the statement
that the weld must be continuous and free from imperfections,
this
can only mean that the weld must be continuous and free of
imperfections to such an extent as is possible given that the landing
is 10 mm and the angle is 30°. There is no such thing as a weld
which is absolutely free of imperfections or free from defects.
That
is why industry norms and procedures allow for defects or
imperfections to a certain extent. Based on his assessment of
the
welding work carried out, all work done by the defendant was within
these acceptable standards. He would suggest that the
landing be
changed to a maximum of 3 mm and that the angle is changed to a
minimum of 45°. Based on his knowledge and experience,
he
confirmed that the presence of any of the plaintiff’s
complaints was not as a result of the workmanship of the defendant,
but rather as a result of the design. This was corroborated by the
fact that neither Mr Derham or Mr Van Wyk conducted any metallurgical
examination on the failed shafts, but rather conducted merely a
visual inspection and as such they are unable to verify the point
at
which any cracks initiated and would therefore be unaware that the
cracks propagated from the centre of the shafts outwards.
Without
conducting a metallurgical inspection one is unable to tell that the
cracks initiated from the landing and propagated
outwards. Only
through a metallurgical inspection can you acquire a meaningful
understanding of the cause of the failure. The
fact that the crack
initiated at the landing and propagated outwards indicates that the
landing was the “crack initiator”
which means that the
landing was the cause of the crack. The defects were therefore
caused by the design and not by the workmanship
of the defendant and
it would not have been possible for the defendant, given the problems
with the design, to provide a weld which
was continuous and free of
imperfections. Further, he stated that in the sample he examined he
did not find any porosity or slag.
He stated further that Mr Derham
could not from his visual inspection, determine the cause of the
failure of the shafts and does not agree
with Mr Derham’s
statement that poor welding resulted in a complete lack of fusion.
Under cross-examination
by counsel for the plaintiff he stated that he includes, as a general
condition in his reports, that he
will not be responsible for any
consequential loss or damage or injury suffered by any person from
any cause whatsoever and whether
occasioned by his neglect or
otherwise. He received the sample from Mr McMillan and he does not
know who selected the sample.
He was satisfied with the drawings and
he was satisfied with the QCP. He examined a section that had four
(4) holes in it and
constituted approximately 17 per cent of the
flange. The rest of the flange would have shown the same
shortcomings as the one
that he examined. He had gone beyond a
visual examination. The other advantages of having a full
penetration weld is that you
have a monolithic weld and you do not
have a built-in defect. If there was not a 10 mm landing there would
be no failure and there
would not be bad welding. A full penetration
weld prevents problems at the root. A 10 mm landing is a landing
which is a potential
crack that will grow.
If you have a full
fusion you will not have a potential crack. He further stated that
he did tell his advocate that the machining
marks referred to by Mr
Van Wyk were not machining marks but could be beach marks. He did
not think that an ultrasonic testing
would produce a meaningful
result if there was a defect.
On re-examination he
stated that the purpose of a metallurgical inspection is to determine
the root cause of the failure and he
found that the landing area,
where the cracks initiated from and propagated was the cause of the
failure.
The fifth witness to
testify on behalf of the defendant was Mr RD Klima. He
testified briefly, that he is the owner of
a mechanical engineering
company, namely Formstar Consulting and has been involved in the
industry for approximately 41 years.
He was instructed by the
defendant to look at the drawing from a design point of view and as a
welding engineer. He suggested
to the defendant that a metallurgist
should be involved to really establish the cause of the defect or
failure of the shaft’s
and recommended Mr LG Kometas as he held
a very high opinion of him. A sizable sample was obtained from
Ghana, which weighed approximately
60 kg, and was handed to Mr
Kometas by Mr McMillan, his colleague. He is fully aware of the
report of Mr Kometas which he
regards as absolute state of the art
and he fully agrees therewith. He stated that the report establishes
failure, fatigue fracture
with a 10 mm landing of the partial
penetration weld as a crack initiator. Micro photographs and
hardness tests show normal and
perfectly acceptable metallurgical
structures of the weld metal depth. This conclusion of the
investigations conducted by him
was that it was highly unlikely that
the welding work conducted by the defendant was defective. The
failures in the welds were
caused by the design which was given by
the plaintiff to the defendant and the welding work conducted by the
defendant was within
acceptable standards. A full penetration weld
is not possible where there is a landing area of 10 mm and a welding
angle of 30°.
With regard to the evidence of Mr Wehmayer, he
commended the change in the design to a full penetration weld and an
angle change
from 30° to 45°. He stated that it is normal
practise to conduct a visual examination but to determine the cause
of a
failure you would have to look in depth into the failure. He
agreed with Mr Van Wyk’s statement that the weld preparation
from the flange onto the shaft is too small for sufficient
penetration but disagrees with his view as to the cause of the lack
of fusion and penetration. He disagrees with the conclusions of Mr
Derham and Mr Van Wyk that there was defective workmanship
on behalf
of the defendant. He stated that with complete lack of fusion and
penetration you would not have been able to turn the
assembly around
once because it would just rotate empty. With regard to the
statements by Mr Derham and Mr Van Wyk that
there was
defective workmanship in that there was excessive porosity and slag,
he stated that there is no such thing as a weld
which is absolutely
free of imperfections or free from defects and that excessive
porosity and slag was not the cause of the failure
of the shafts.
Under cross-examination
by counsel for the defendant, he stated that the sample used is
representative of the cracked weld because
if you have a mode of
failure in a constructed and a manufactured part, then it is
absolutely unlikely that, that mode of failure
does not take place in
any other part. He further stated that the machining marks referred
to by Mr Van Wyk could be fatigue
marks and then it is a fatigue
crack and not a lack of fusion. Further the three holes indicated on
the photographs are not indicative
of bad workmanship. Further an
ultrasonic test on a non-failed item is not a way for determining the
possible cause of failure
but it can determine the presence of
defects. In his view, the welding procedure was done in terms of the
welding procedure governing
the work. That was the case for the
defendant.
It is clear from the
evidence that the court is confronted with two irreconcilable
versions. In a nutshell, the plaintiff’s
version is that the
defendant failed to effect the work required in a proper and
workmanlike manner which caused the shafts to
fail. The defendant’s
version is that the failure was caused by a design fault and denies
that it failed to effect the work
required in a proper and
un-workmanlike manner. The court must assess the various witnesses’
evidence relating to their
credibility, reliability and the
probabilities and make findings to determine whether the plaintiff
has discharged the onus of
proof.
With regard to the
defective welding, the plaintiff presented the evidence of Mr Derham
and Mr Van Wyk, both of whom averred that
it was poor welding with
lack of fusion that lead to the failure of the shafts. Mr Van Wyk
alluded to photographs, including one
which he stated, displayed
machining marks which indicated the lack of fusion. Counsel for the
plaintiff argued that it was not
put to him that the marks were not
machining marks but cracks which propagated from the root of the weld
which was the effect of
the evidence of Mr Klima. It was further
argued by counsel for the plaintiff that Van Wyk’s evidence
that the ultrasonic
testing done in his presence by Gouws on two of
the other shafts also showed defects and was not challenged, and
further that Derham’s
evidence was that the welding shown on
exhibit “B” at the end of the shafts showed the same
characteristics deposed
to by Van Wyk. Counsel for the plaintiff
submitted that this evidence, seen as a whole, establishes that there
was defective welding.
The defendant’s
case on this aspect rests on the evidence of its two expert
witnesses, Mr Kometas and Mr Klima. Their opinions
and conclusions
were that the welding work conducted by the defendant did not contain
any defective workmanship and the failures
in the welds were caused
by the design which was given by the plaintiff to the defendant and
that the welding work performed by
the defendant was within
acceptable standards.
It is clear from the
evidence that Mr Kometas conducted a metallurgical investigation into
the likely cause of the failure of the
shafts and was provided with a
sample. Issues have been raised in argument by counsel for the
plaintiff with regard to the obtaining
of the sample and the size of
the sample, which I will deal with later in my judgment. It is
common cause that it is only through
a metallurgical inspection that
one can acquire a meaningful understanding of the cause of the
defects. Without conducting a metallurgical
inspection one is unable
to say that the cracks initiated from the landing and propagated
onwards. The evidence of Mr Kometas
was that the crack initiated at
the landing and propagated outwards indicating that the landing was
the crack initiator which means
that the landing was the cause of the
crack and the defects were caused by the design and not by the
workmanship of the defendant.
This was corroborated by the fact that
neither Mr Derham nor Mr Van Wyk conducted any metallurgical
examination on the failed
shafts but merely conducted a visual
inspection and as such they are unable to verify the point at which
any cracks initiated and
would therefore be unaware that the cracks
initiated from the centre of the shafts outwards. The plaintiff had
ample opportunity
to obtain the services of an expert to conduct a
metallurgical examination but failed to do so at its peril.
It is common cause that
there was a lack of fusion and penetration between the welds due to
the landing. The issue is whether that
lack of fusion and
penetration was caused by the design inherent in the drawings
provided by the plaintiff to the defendant or
whether it occurred as
a result of defective workmanship. The allegation by Mr Derham that
there was defective workmanship because
of a complete lack of fusion
and penetration by a mere visual inspection given the dirt and damage
to the shafts during that time,
did not contribute meaningfully as to
the cause of the failure of the shafts. Mr Derham has accepted that
a visual inspection
merely verifies the presence of defects but does
not determine the cause of such defects.
Mr Van Wyk conceded that
the purpose of an ultrasonic examination is to determine defects and
not to determine the cause of such
defects and further that the
purpose of a metallurgical examination is to determine the cause of
the defects. He also stated that
he is not qualified to express an
opinion on aspects relating to design. As such Mr Van Wyk is unable
or not qualified to state
that the findings by Mr Kometas are
incorrect.
Mr Van Wyk conceded that
a full penetration weld was less likely to fail than the weld in
question. He stated that for a full penetration
weld a 10 mm
landing is not appropriate and he recommended that the angle be
changed to an angle of 45° as a reasonable
welder would find it
difficult to manipulate the welding rod at an angle of 30°. He
stated that there is no such thing as
an absolutely perfect weld or a
weld which is absolutely free of imperfections and conceded further
that industry norms and procedures
allow for defects or imperfections
to a certain extent. This evidence of Mr Van Wyk is
reconcilable with the evidence
of Mr Kometas and Mr Klima who
suggested that the landing be changed to a minimum of 3 mm and that
the angle be changed to a minimum
of 45°.
It is also clear from the
evidence of Mr Van Wyk that the plaintiff did approve the workmanship
of the defendant by signing off
the QCP through Mr Bosman who was a
reputable and independent quality manager. The contention by counsel
for the plaintiff that
Mr Bosman was in a compromised situation when
he supervised the QCP for the shafts is in my view untenable as not
one of the plaintiff’s
witnesses at any stage suggested that he
acted in a manner that favoured the defendant to the detriment of the
plaintiff or acted
improperly in any way. Mr Bosman was a good
witness and did not strike the court as a person who would compromise
his position
and still remain in his field for such a long period.
As indicated earlier,
counsel for plaintiff in argument raised an issue that Zechner
substituted another piece of flange which he
brought from Ghana and
as such it is questionable whether the results of Mr Kometa’s
examination would have any probative
value whatsoever in the absence
of direct evidence as to the origin of the sample he examined. This
argument is indeed fanciful
in the extreme as in my view it is highly
improbable that Zechner would go all the way to Ghana to substitute
another piece of
flange. Further, this issue was not raised anywhere
on the papers or by any of the plaintiff’s witnesses. The
further issue
raised by counsel for the plaintiff was that the sample
examined was too small and is not reflective of the equipment. The
plaintiff’s
witness Mr Derham provided no scientific basis for
suggesting that such observations are not present on the balance of
the equipment.
Mr Kometas and Mr Klima confirmed that the sample was
sufficiently reflective of the equipment as a whole. Mr Van Wyk
conceded
that in the absence of a metallurgical inspection or
examination on the balance of the equipment, the plaintiff cannot
prove the
failure of the shafts was not caused by the design. Mr
Derham’s contention that the same design was used elsewhere
without
failure is countered by the evidence of Mr Felipe who
stated that this design was never used before this instance for
shafts
of this size where a gearbox was present. Mr Derham was not
a good witness. He did not strike the court as being an expert
witness
who is sufficiently objective. He refused to accept that the
only way to determine the cause of the failure in the welds was
through
a metallurgical inspection even though the plaintiff’s
other witness Mr Van Wyk quite readily conceded that the only way to
determine the true cause of the failure of the shafts was through a
metallurgical examination. He further was not prepared to
concede
that the design was changed to a full penetration weld when the
replacement shafts were ordered despite the clear evidence
on the
papers and the evidence of Mr Wehmeyer. The probability that Mr
Derham was able to contribute to any meaningful opinion
as to the
cause of the failure of the shafts is in my view minimal. Further
with regard to the reliability of Mr Derham as a witness
it is clear
from the evidence that on two separate occasions of having inspected
the shafts, in the first instance, he was not
able to detect any
defective workmanship whilst on the second occasion, through all the
dirt and grime, was able to concluded that
there was defective
workmanship. In view thereof, the conclusions of Mr Derham cannot be
accepted.
Mr Kometas and Mr Klima
were good witnesses. Their evidence was not discredited in any way
and on the probabilities their evidence
must be accepted. Mr Klima
contended that the failure of all ten (10) shafts due to poor
workmanship is improbable and that a
poor design (the 10 mm landing
and the 30° angle) is more probably the cause of the failure of
the shafts. I fully agree with
the contentions of Mr Klima as I am
of the view that a welder may have a bad day when welding a shaft,
but it is highly improbable
that he will have a bad day everyday when
he welds the shafts.
Although it was Mr
Cordozo’s evidence that he grinded out the weld deposit and
successfully re-welded three (3) shafts at
the 30° angle with the
landing in tact, he was unable to state how long the welds endured.
This however does not prove that
the design was not faulty.
I am satisfied that the
defendant has established that the cause of the failure of the shafts
was the design and not the defective
workmanship of the defendant and
as such it would not have been possible for the defendant, given the
problems with the design,
to provide a weld which was continuous and
free of imperfections.
In
view of the concession made by counsel for the plaintiff at the
commencement of this trial that if it is established that it
was
because of the design that these welds of the flanges on to the
shafts failed, then the plaintiff does not have a case, I
do not
deem it necessary to deal extensively with the aspect of the
plaintiff’s claim for damages, suffice to state that
it is
clear, on the pleadings that there is no allegation by the plaintiff
that the defendant was knowledgeable in the process
of agitating biox
slurry and there was no evidence which was led by the plaintiff to
suggest that the defendant was knowledgeable
in the process of
agitating biox slurry and that the contract between the parties was
concluded on the basis of special facts
and circumstances which would
give rise to a claim for special damages in the form of consequential
losses. Without such allegations
or evidence the plaintiff’s
claim for consequential damages cannot succeed.
See:
Lavery & Co Ltd v Jungheinrich
1931 AD p172.
The
plaintiff has failed to discharge its onus that the defendant's
defective workmanship was the cause of the failure of the shafts
and
therefore the plaintiff s damages.
In
the result, I make the following order:
The
plaintiffs claim against the defendant is dismissed with costs.
SS
OMAR
ACTING
JUDGE OF THE HIGH COURT, PRETORIA
FOR
THE PLAINTIFF: ADV. BEATON
INSTRUCTED
BY:
FOR
THE DEFENDANT: ADV. MAHONE
INSTRUCTED
BY: