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[2021] ZAECPEHC 38
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Nordicbau Master Builder Renovator CC v Stapelberg Vervoer t/a Milltrans (601/2017) [2021] ZAECPEHC 38 (13 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION - PORT ELIZABETH
Case
No.: 601/2017
In
the matter between:
NORDICBAU
MASTER BUILDER & RENOVATOR CC
Plaintiff
and
STAPELBERG
VERVOER
t/a
MILLTRANS
Defendant
JUDGMENT
REVELAS
J:
1.
This matter concerns the question
whether the plaintiff is entitled to claim contractual damages for
its loss of earnings suffered
as a
result
of damage to its two maniscooic machines ('tele-handlers') sustained
in transit when transported by the
defendant,
a carrier for reward.
2.
The plaintiff, who conducts business,
inter alia,
in
the rental of support equipment to the film industry, instituted an
action for consequential damages against the defendant, a
transport
contractor, who was to transport the plaintiff's two tele-handlers
from Port Elizabeth to Cape Town on 15 November 2015.
During their
transportation both tele-handlers were damaged. The total amount of
damages claimed is R 2 120 426.00.
3.
At the behest of the defendant the
issues relating to quantum and liability were separated and the trial
proceeded on the question
of liability only. The plaintiff called one
witness, Mr Louis Le Roux, its financial manager and the
defendant,
who placed several issues in dispute,
called no witnesses.
4.
The plaintiff pleaded that it was the
owner of two Manitou MRT2150 tele-handlers with serial 175 821 820978
and 750984 respectively,
purchased from Moyersoen NV/SA and Johann
Bruggs who were based in Belgium. The telehandles were shipped from
the harbour of Zeebrugge
in Belgium to Port Elizabeth by
World
Freight aboard the vessel Tiger. The defendant undertook to transport
the tele-handlers from Port Elizabeth harbour to Cape
Town.
5.
The plaintiff pleaded further that it
was a term of their agreement that the defendant would carry out the
transporting of the tele
handlers in such a way as to prevent
them from being damaged and to deliver them to the plaintiff in Cape
Town in the same good
and/or undamaged condition as it was when the
defendant took delivery thereof.
6.
According to the plaintiff's particulars
of claim the tele-handlers arrived in Port Elizabeth in good and
operationally fit condition,
so that they were capable of being
utilised in the plaintiff's business earning R15 720.00 per day in
rental fees.
7.
Unfortunately, the two tele-handlers
were damaged, allegedly as a result of the defendant or its employees
while acting in
the scope and course of their agreement. The one
tele-handler ('the first
tele-handler')
fell from the ramp by which it was moved
onto the load bed of the defendant's vehicle while being loaded. The
other ('the second
tele-handler') was damaged when the defendant's
vehicle, on which it was being transported left the road, due to
the
alleged negligent driving of the driver of the vehicle and the
tele-handler fell from the vehicle.
8.
The plaintiff pleaded that the agreement
was concluded upon the parties' mutual understanding that the
plaintiff intends to use
the two tele-handlers for purposes of
generating an income and should the tele-handlers be damaged in the
execution of the transport
agreement or if delivery be delayed due to
a breach of that agreement, the plaintiff would suffer damages due to
a loss of income.
The defendant failed to respond to this assertion
by the plaintiff and it stand uncontested on the pleadings.
9.
The plaintiff further pleaded that the
reasonable period for the repairs to the first tele-handler was 144
days and for the second
one 137 days that the first tele-handler was
damaged beyond repair. The amount of the damages claimed by the
plaintiff consisted
of two claims. In respect of the first
tele-handler the plaintiff pleaded that it usually rented a
tele-handler for 15 days per
month (half of the 144 days, i.e. 72
days) at R15 720.00 per day, amounting to R1 131 840.00. From that
the cost of an operator
paid R680.00 per day had to be deducted. Thus
R45 216.00 over 72 days was subtracted from the aforesaid total sum,
amounting to
R1 086 624.00.
10.
The second claim was for the damages
suffered in respect of the second tele-handler and was for the amount
of R1 033 802.00, calculated
by using the same formula used in the
first claim but based on half of the period for repairs which
plaintiff alleged was 137 days.
11.
It
was common cause that when the transport agreement was concluded on
23 October 2015, the defendant was represented by one Otto
Krause and
the plaintiff by an agent, Corinna Wild of Wild C's, a transport
consultant. The written agreement (one page long in
the form of an
acceptance of a quote for transportation) reflected that the two
tele-handlers, described as Maniscopic MRT2150
Machines, (weight
16,180 kilograms) would be transported by the defendant
with two vehicles at the cost of R15
200.00 each. The place of
departure (Port Elizabeth Harbour) and destination (Liftup Teleporter
and Crane Hire
-
Culemborg
Container Depot, Christiaan Barnard Road, Cape Town) were also
reflected. Since the document contained all the aforesaid
information, it met the requirements of a proper contract for
carriage by land for reward.
[1]
The contact person for the plaintiff
was
given as Ulrich Plotz. He is the main member of the plaintiff. The
carriage contract also contained a term that the"
[q]uotation
includes R1,0 million 'goods in transit insurance' of full capacity
of the vehicle"
The
copy of the aforesaid contract was attached to the defendant's plea.
12.
The defendant pleaded that Corinna Wild
of Wild C, as agent
"purporting
to act on the behalf of her principal to wit Liftup Teleport
and Crane Hire, alternatively Ulrich Plotz,
and so authorized,
alternatively ostensibly authorised, accepted a quotation
provided by the Defendant to transport goods
for the amount of R15
200 per vehicle"
and for a
maximum insurance cover of Rl 000 000.00 per vehicle, for goods in
transit, and that the balance of the risk would be
borne by Wild C's
principal or client.
13.
According to Mr Le Roux the client was
at all times the plaintiff. It is clear from the contract itself that
Liftup transport
was merely the receiver at the destination
given in the carriage contract.
14.
The defendant further pleaded its
persistence that the tele handlers were not the plaintiff's
property and that it was not
a party to the agreement. However, it
also pleaded that
"(t)he
Defendant was provided with claims documentations and reported the
insurable risk event to its insurers who then transferred
the
proceeds of the claim into the Defendant's bank account for forward
payment into attorney Welgemoed's account."
15.
Welgemoed attorneys have at all relevant
time been the attorneys of record of the plaintiff.
16.
It is common cause that the defendant
paid the plaintiff the amounts of R970 000.00 and R744 692.67
respectively on 15 February
2016 and during April 2016. The defendant
was the insured or beneficiary in terms of an insurance policy
concluded with Santam
Insurance for a maximum amount of R1 000 000,00
per tele-handler and it was in terms of this goods in transit ('GIT")
policy
that the defendant was paid out the aforementioned amounts
arising from the damage to the tele-handlers. The aforesaid Santam
GIT
policy specifically excludes cover for consequential damages.
Under the heading "EXCEPTIONS TO SUBSECTION A" it provides:
"The
company shall not be liable to
pay for:
(a)
consequential financial loss as a
result of any cause whatsoever "
17.
The defendant pleaded that the plaintiff
was not entitled to claim beyond the aforesaid maximum amount. In
this regard the
defendant relied on a letter from Mr Plotz to
Ms Wild prior to the
conclusion of the
carriage contract wherein he asked her to arrange cover
for the
tele-handlers
up to a maximum R1 000 000.00 and
added that he would cover
any loss beyond that himself.
18.
The defendant pleaded further that
no claim was made for additional damages (i.e. for loss of income)
and that the aforesaid payments
referred to above were paid to the
plaintiff in full and final settlement of all claims
"and
accordingly neither the plaintiff or any other party purporting to
bear the risk will be prevented from claiming such
damages as a
result of the ne bis in idem rule".
However,
it is clear from the correspondence between the parties on 4 December
2015 that there was no such agreement. Before the
payments were made
the following year, the plaintiff indicated in clear terms to the
defendant that it would not accept the payment
in full and final
settlement of all its claims and in particular its claim for loss of
income. This was conveyed to the defendant's
attorneys in an e-mail
dated 4 December 2015. On the same day the defendant responded
through its attorneys that the plaintiff
is not entitled to claim for
loss of income and raised the defence of
"force
major''
and referred to the fact
that the plaintiff did not
"ask
for R2 million insurance"
per
tele-handler On 14 December 2015 the plaintiff through
its attorney warned the
defendant
that
"the longer it takes to
resolve the matter, the larger our client's claim will be for
loss of income."
19.
In paragraph 7 of the pre-trial minute
signed by the respective attorneys of the parties, the following
issues were listed as issues
to be decided by the court:
"a.
That the Plaintiff has the necessary locus standi to issue
summons and what the plaintiff's status is. The defendant
has denied
the name and the status of the plaintiff being a close corporation;
b.
that the plaintiff trades in the
rental of support equipment to the film industry, such equipment to
include telehandler machines;
c.
that the plaintiff was the owner of
two Manitou MRT2150 telehandlers with serial numbers 175821820978 and
750984;
d.
that the plaintiff bore the risk
in respect of the said telehandlers;
e.
the allegations in respect of the
agreement between the plaintiff and the defendant as set out in
paragraph
9,
9.1
-
9.8
of the plaintiff's particulars of claim;
f.
that the telehandlers were in a
good and operational condition;
g.
that the telehandlers could be
utilized by the plaintiff in his business by renting same out
at a rental of R13,445.
00 per day and that the telehandlers
were delivered to the defendant to be transported from Port Elizabeth
to Cape Town;
h.
that the defendant paid out costs
to repair the telehandler which was damaged on the 7
th
of April 2016;
i.
that the plaintiff has suffered
damages and what the amount of damages were in respect of the
telehandlers which were respectively
repaired and or replaced and
which could not be utilized during certain periods;
j.
that the one telehandler was
transported and damaged when it fell off the defendant's vehicle
during transportation thereof and
the other telehandler was damaged
during the process of loading same onto the defendant's vehicle and
that these incidents were
caused by the negligence of the defendant
and or his employees;
k.
that the aforesaid telehandlers
could not be used and that the plaintiff was deprived of the use
thereof for certain periods before
a replacement telehandler could be
delivered the plaintiff and that the plaintiff suffered loss of
income for that period and what
the extent of the damages so suffered
were;
I.
that the damages suffered by the
plaintiff were in accordance with the expert's report as set out in
the Notice in terms
of Rule 36(9)(b);
m.
whether the plaintiff is
prevented for claiming damages as a result of the ne bis idem rule;
n.
whether
the insurance cover of R1,000,000 per vehicle/telehandlers for goods
in transit excludes
the plaintiff from issuing claims in respect of
loss of income."
20.
Despite the aforesaid list, many of
which items pertain to the quantum of damages, the main issue left
for determination in this
trial is whether the plaintiff is entitled
to additional damages, i.e. consequential damages over and above
those of the replacement
costs and repairs to the two tele-handlers
and beyond the amount of R1 000 000.00, which the defendant set as
the maximum amount
that could be claimed by the plaintiff.
21.
Mr Pieter Le Roux, the plaintiff's
financial manager explained, with reference to several documents,
such as the purchase contracts,
applications for foreign currency
and tax clearance were contained in the plaintiff's trial
bundle, that the plaintiff
had indeed purchased the two
tele-handlers from the entities or persons referred to in the
particulars of claim and established
that it was the owner. Mr Plotz,
the main member of the plaintiff, a close corporation, had negotiated
the terms of the agreement
with Corinna Wild. Mr Le Roux also
explained that it was cheaper to buy the tele-handlers on auction
overseas rather than purchase
them locally.
22.
The defendant disputed that the
plaintiff was the owner of the tele-handlers and thus had no
locus
standi
to bring the present
action.
As stated, Mr Le Roux provided all the necessary documentation to
prove the ownership. Mr Plotz of the plaintiff negotiated
the terms
of the contract with Ms Wild who was the plaintiff's agent. Mr Le
Roux had ample knowledge of the financial affairs of
the plaintiff,
sufficient to give evidence in this regard and his testimony was
supported by the evidence such as correspondence
between Mr Plotz and
Ms Wild pertaining to the agreement with the defendant. According to
Mr Le Roux he processed all documents
including the terms and
conditions of the contract. The plaintiff accordingly had the
necessary
locus standi
to
institute the present proceedings.
Legal
Principles
23.
If
the owner of the goods can prove that the carrier
was negligent in exposing the goods to risk,
the carrier
will not escape liability. The standard of care demanded from
a carrier depends on whether
the carriage was
gratuitous of for read. In the latter case the carrier is
liable for ordinary negligence.
The onus is on the
carrier to prove the absence of fault .
[2]
24.
The
Court held as follows
in
Hall-Thermotank
Africa Ltd v Prinsloo
[3]
:
"Once
the carriage is for reward, there is an absolute liability on the
part of the carrier to ensure that the
goods which
he receives are delivered undamaged. If they
are delivered in a damaged condition,
he must compensate
therefor, as an absolute liability, unless he can show (and the
onus in this regard is on him) that
the damage occurred through
damnum fatale or vis major, in other words, that there was a
superior force over which
he had no control, which cause
the loss, or the loss inevitable and unavoidable from the point
of view
of a reasonable man.
25.
A
defaulting party's liability is limited to
(a)
those
damages that flow naturally and generally from the kind of breach of
contract in question and which the law presumes the parties
contemplated as a probable result of the breach, and (b) those
damages that, although caused by the breach of contract are
ordinarily
in
law
regarded as too remote to be recoverable unless in the special
circumstances attending the conclusion of the contract, the parties
actually or presumptively contemplated that they would probably
result from the breach.
[4]
26.
In the present matter the defendant is
not in a position to dispute that it was a carrier for goods for
reward by land and that
through its negligence or the negligence of
its employees the two tele handlers were substantially damaged.
The fact that
both tele handlers were damaged when carried by
different vehicles and both fell
off
the load beds onto which they were
loaded, strongly suggests that neither were properly affixed to the
vehicles that had to transport
them to their destination. Clearly the
defendant had breached the carriage contract. As a result of the
aforesaid breach of contract
the tele-handlers could not be used for
the purpose for which they were purchased and it follows logically,
that the plaintiff
was deprived of income during the time they were
either repaired or replaced, whichever the case may be. Mr Le Roux
confirmed that
at the time the tele-handlers were in demand in the
film industry and rented out by the plaintiff to earn income. This
type of
loss must have been contemplated and reasonably foreseen when
the carriage contract was concluded by the parties.
27.
In
Shatz,
the respondent successfully
sued the appellant for loss of profit (or income)
and goodwill raising
from the appellant's breach of
a lease agreement. The respondent conducted a bakery business on
premises leased from
the appellant who undertook in the lease
agreement between the parties, not to lease premises
in
the same building to any other purveyor of food stuffs. In
breach of the lease, the appellant concluded a lease agreement
with
another tenant who indeed sold food stuffs. The Court found that the
respondent had suffered a loss of profits and goodwill
as a result of
the appellant's breach of the lease and that loss was not too remote
to have been contemplated by the parties when
the lease agreement was
concluded between them. In my view, if similar reasoning is applied
to the present case, it cannot be said
that the plaintiff's loss of
income was too remote to have been contemplated by the parties when
they concluded the agreement.
The defendant did not plead remoteness
in any event. It also did not present evidence to the effect that
there was no causal connection
between the defendant's negligence and
the plaintiff's loss of income or revenue, whereas the plaintiff did.
28.
The fact that the defendant was only
insured for damages arising from damage to the tele-handlers to a
maximum of R1 million and
that it was noted in the agreement, does
not preclude the plaintiff from claiming for a loss of income arising
from the defendant's
breach of the carriage contract. The insurance
contract was between the defendant and Santam and does not affect the
plaintiff's
claim against the defendant, irrespective of what Mr
Plotz had instructed Ms Wild regarding cover. It is also significant
that
there is a substantial difference of almost R250 000,00 between
a R million and the actual amount paid to the plaintiff in respect
of
one of the telehandlers. The defendant and /or its insurer intended
only to compensate for repairs and replacement costs and
no other
damages. If there was such a limitation to the defendant's liability,
there ought to have been a clause in the agreement
that effect. The
carriage contract does not contain any such an exclusion or
limitation clause.
29.
According to Mr Le Roux, the first
tele-handler that had to be replaced was purchased for Eurol0S 000,00
(before shipping, clearance
and transport costs), which is in excess
of R1 million, which excess was absorbed by the plaintiff in
accordance with
the GIT policy. This policy, according to
Mr Le Roux, only provides cover in respect of actual damage to
the
goods transported, and not consequential
damages. This evidence was not controverted by any
evidence
from the defendant and as referred to above, the policy
specifically excluded such damages. It follows that the defendant is
precluded
from relying on its agreement with its own insurer to
escape liability from damages caused by it
to
the plaintiff where such damages are not covered by the
insurance policy in question.
30.
In the circumstances and for the reasons
set out above, it is concluded that the plaintiff has succeeded in
proving that the defendant
is liable for the plaintiff's
consequential damages, in the form of a loss of income, sustained as
a result of the defendant's
breach of the carriage contract concluded
between the parties.
31.
In the circumstances the following
order issue:
1.
It is declared that the defendant is
liable to the plaintiff for consequential losses suffered by it
arising from the two machines
on 15 November 2015, when the
plaintiff's tele handlers were damaged, whilst being
transported from Port Elizabeth to
Cape Town.
2.
The quantification of the Plaintiff's
damages stand over.
3.
The defendant is to pay the Plaintiff's
cost of suit.
E
REVELAS
Judge
of the High Court
Appearances:
For
the Plaintiff: Adv A De Villiers instructed by Welgemoed
Attorneys c/o Lawrence Masiza Vorster Inc., 214 Cape
Road, Mill Park,
Port Elizabeth
For
the Defendant: Adv P Jooste instructed by Greyvensteins,
St George's House, 104 Park Drive, Port Elizabeth
Date
heard:
29 and 30 October
2020
Date
delivered:
13 July 2021
[1]
Wille,
Principles
of South African Law,
Ninth
Editio n at 971
[2]
Wille
at
974-5 and the cases cite d by the authors
[3]
1979 940 SA 9
I (T) at 93 H
[4]
Shatz
Investments (Pty) Ltd v Kalovyrnas
1976
(2) SA 545
(AD) at 550 followed in
Holmedene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670
(A)