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[2011] ZASCA 63
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Dormac Marine and Engineering (Pty) Ltd v C A Henneberry (305/10) [2011] ZASCA 63 (1 April 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 305/10
In the matter between:
DORMAC MARINE AND
ENGINEERING (PTY)
LIMITED
................................................................................................................
Appellant
and
CALMIN ANDREW
HENNEBERRY
.................................................................
Respondent
Neutral citation
:
Dormac Marine and Engineering (Pty) Ltd v C A Henneberry
(305/10)
[2011] ZASCA 63
(01 April 2011)
Coram:
MPATI P,
MAYA, CACHALIA, SHONGWE and SERITI JJA
Heard
10 March
2011
Delivered:
01
April 2011
Summary:
Damages –
claim based on negligent omission – claimant alleging defendant
failed to provide proper and safe equipment
– chain block
breaking on job resulting in injury – defendant contracting
with independent contractor to inspect and
test equipment –
negligence not proved.
______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
KwaZulu-Natal High Court
(Durban) (Msimang J, sitting as court of first instance):
1. The appeal is upheld
with costs, such costs to exclude the costs of
preparing volume 2 of the
record.
2. The order of the court
below is set aside and the following is substituted:
‘
Absolution
from the instance is granted, with costs.’
_______________________________________________________________________
JUDGMENT
______________________________________________________________________
MPATI P (MAYA, CACHALIA,
SHONGWE and SERITI JJA ..........):
[1]
The respondent (as
plaintiff) sued the appellant (as defendant) in the Durban High Court
for damages for bodily injuries he sustained
while working on a
shipping vessel at the Durban dry dock. The appellant denied
liability. At the commencement of the trial an
order was made, by
agreement between the parties, that the issues of the liability and
quantum be separated in terms of rule 33(4)
of the Uniform Rules. The
trial thus proceeded on the issue of liability only, the issue of
quantum standing over for later determination.
[2] At
the end of the trial the court (Msimang J) was faced with two
mutually destructive versions on how the respondent came to
be
injured. After analyzing the evidence he concluded that the
respondent’s version was preferable and held the appellant
liable for the respondent’s damages. The learned judge
subsequently refused the appellant’s application for leave to
appeal. This appeal is with leave of this court. For convenience I
shall refer to the appellant as ‘Dormac’.
[3]
Dormac is an incorporated company that operates a ship repair
business
based
in Durban. The
actual ship repairs are, however, carried out by Dormac’s
sub-contractors, one of whom is Camrod Engineering
CC (Camrod). At
the time relevant to this matter the respondent was employed by
Camrod as a boilermaker. His work entailed fitting
steel plates onto
the hulls of ships damaged out at sea. A ship that requires such
repairs is steered into position above certain
blocks after the dry
dock has been filled with water. The water is then pumped out,
allowing the ship to rest on the blocks
approximately
1
.5 meters above the
surface of the dry dock.
[4] On 3 July 2002 the
respondent reported for duty at 18h00. He was on night shift, which
was to end at 07h00 on 4 July 2002. He
testified that upon reporting
for duty he was instructed by a Mr George Joubert (Joubert), who was
employed by Camrod as a foreman,
‘to fit a length of [steel]
plate to the bottom of the ship’ known as Maud, which was
already in position in the dry
dock. The damaged part of the ship had
been removed during the day and a sheet of metal from which the
replacement steel plate
was to be cut was on the ground below the
ship. The respondent marked out the size of the plate he required
from the metal sheet.
One of his team members, Mr Wayne Johnson
(Johnson), a burner, cut out the required piece, using an
oxyacetylene gas cutting torch.
The steel plate was 7.8 meters long.
On one end it was 1.2 meters wide while the width on the opposite
side was 980 millimeters.
The wider side of the steel plate, was thus
heavier than the other.
[5]
After Johnson had cut out the steel plate the respondent welded three
lugs
1
onto it, one
towards each end of the length of the steel plate and one in the
middle
.
He
then proceeded to the mobile store where he requisitioned three chain
blocks which he required to lift the steel plate. The respondent
testified that he asked for three 2-ton chain blocks but the storeman
gave him two 2-ton and one 3-ton chain blocks, which he carried
separately
back
to the
ship.
2
It appears that the
steel plate weighed 1080 kilograms (approximately 1ton). Back at the
ship he hooked the chain blocks
onto
f
rames
on the ship and to the steel plate.
3
The two 2-ton chain
blocks were hooked onto the lugs on the opposite sides of the steel
plate and the 3-ton chain block onto the
centre lug. However, the
respondent said that Joubert instructed an assistant to remove the
3-ton chain block from the centre lug
and from the ship because, in
his view, the two on the sides of the steel plate were sufficient.
This angered the respondent. He
reacted by telling Joubert to lift
the plate himself. Joubert then instructed Johnson and the assistant
to lift the plate into
position
,
using
the two 2-ton chain blocks. According to the respondent the centre
chain block was meant to ensure that the plate, when pulled
up into
position, would remain straight and not curve out in the middle.
[6]
The respondent testified further that once the plate was in position
Joubert instructed him to continue with his work. His duty
was to
secure the plate in its position after which a welder would weld it
into place right around. To secure the plate into position
the
respondent had to use pieces of metal referred to as ‘dogs’,
which had to be welded onto the body of the ship close
to the plate
so that part of the pieces (dogs) protruded beyond the edge against
which the new plate is fitted. In this way the
‘dogs’
help to keep the plate in position. But before the respondent could
commence with the operation and because
the use of only two chain
blocks resulted in the plate curving out in the centre area causing
the plate not to fit flush at the
seam, he took a hydraulic jack
which was at the scene, placed it on a piece of wood directly below
the centre of the plate. His
intention was to lift the curved centre
of the plate by means of the jack, but he discovered that the jack
was faulty. When he
could not find another one he proceeded to attach
‘dogs’ as indicated above. He started from the broader or
wider side
of the plate and worked backwards towards the narrow side.
He was thus facing the back of the ship with his back towards the
front.
[7] It is not clear from
the respondent’s evidence how far apart the ‘dogs’
were welded
onto
the ship, but he testified that after he had secured three of them
and, as he lifted his left hand ‘to fit [a] wedge’
4
into a ‘dog’
the chain block on his side of the plate snapped,
causing the
steel plate ‘to whip out’ onto his left hand, crushing it
and his left wrist. It then whipped back up before
crashing down,
bumping Joubert on his head. When the plate on the side where the
respondent had been working
hit the
ground its impact caused the lug on the narrower side to ‘sheer
off’’ causing the whole plate to fall
to the ground. The
respondent realized that the lug had sheered off because it was still
attached to the hook of the chain block,
while the hook of the other
chain block on the wider side of the plate was still hooked onto the
lug, which remained welded onto
the plate. A link in the chain had
broken off above the hook. The respondent realized the extent of his
injuries only when he removed
the
glove he had
been wearing over his left hand. He was taken to Entabeni Hospital by
his supervisor, Mr Faeez Sookool, and his brother,
Mr Kerwin
Henneberry, who had also been working on the
ship.
His
hand,
regrettably, could not be saved and was
amputated.
[8]
Johnson supported the respondent’s version in all material
respects. He testified that he had to assist the respondent
to remove
the centre chain block, which was a 3-ton chain block, from the steel
plate. The respondent told him that the nightshift
foreman, Joubert,
had instructed him to do so. He also assisted in pulling up the steel
plate into position and, while inside the
ship, trimmed the plate so
that it fitted properly into the space where the damaged piece had
been cut out. When he finished trimming
the plate he came out of the
ship through a hole left open in its hull by boilermakers for that
purpose. He then sat on a paint
drum directly below the steel plate
but close to the narrow end. He said that the respondent had his back
to him as he was welding
‘dogs’ onto the ship. He was
busy cleaning some ‘dogs’ which the respondent had thrown
to him when, suddenly,
the side of the plate on which the respondent
was working ‘whipped out’ and hit the latter’s
hand. He saw the
plate ‘whip up’ and at that moment he
moved away. The side that had whipped up came down again and when it
hit the
ground the other side (narrow side) also fell out and the
whole plate landed on the ground. Johnson then ‘walked the
length
of the plate’ and saw that ‘the hook of the chain
block was still in the lug on the aft side with a couple of (chain)
links still on the hook.’
5
He said that the
lug on the narrow side of the plate was hanging ‘in mid-air’,
but was still attached to the hook of
the other chain block. When the
respondent was taken to hospital he (Johnson) sat down until, after
about an hour, he was instructed
by Joubert to fit the plate, which
he did.
[9] When the incident
happened the respondent’s brother, Kerwin, was
working
approximately
four meters away from the respondent
towards the front of the ship. He testified that his attention
was drawn by a loud banging noise. When he looked up in the
respondent’s
direction towards the rear of the ship he saw the
steel plate the respondent was fitting onto the ship ‘break
free from the
ship’ on one side.
The whole plate then dropped to the floor.
He saw the respondent holding his left arm and rushed to help
him.
Like Johnson, he
observed that the lug on the forward (narrow) side of the plate had
come off and was hanging on the chain block
above the plate, while
the one on the rear side was still on the plate with a few chain
links hooked onto it.
[10] It is common cause
that the chain blocks (and certain other equipment or tools) used by
the artisans employed by Camrod when
repairing ships were owned by
Dormac. The equipment or tools
used
by artisans were requisitioned from Dormac’s stores at their
premises or from a mobile store in which tools were brought
to the
quayside. But Camrod also had a container, also referred to as a
mobile store, where their tools and other equipment which
has already
been requisitioned from Dormac and taken out of the Dormac’s
stores were kept. Like the Dormac mobile store,
Camrod’s was
also manned by a storeman. On the respondent’s version the
chain blocks that he used on the evening in
question were obtained
from Camrod’s mobile store.
[11] In his amended
particulars of claim the respondent alleged that the incident (which
resulted in the injuries to his left hand
and wrist) was caused
solely by the negligence of Dormac. The alleged grounds of negligence
were listed in paragraph 6 as follows:
‘
(a)
The Defendant failed to provide proper and safe equipment for use on
site. On the day of the incident the hydraulic jack normally
used was
damaged which was why the chain blocks were used. The chain block and
all equipment used on the project were provided
by the Defendant.
Three chain blocks being used were old, unsafe and defective however
no safety precautions were implemented which
ultimately led to the
chain block snapping and injuring Plaintiff.
The
Defendant failed to provide safety personnel to inspect equipment
utilized. There were three different contracting crews on
the
project on that specific date and only one safety officer available.
There were no qualified safety officers available to
inspect safety
conditions or check equipment. The Defendant failed to provide
quality supervisors.
The
Defendant failed to avoid the incident when, by the exercise of
reasonable care, the defendant could and should have done
so.
6
[bis]
(a)
There was an obligation upon the defendant and who owed the plaintiff
a duty of care to provide proper and safe equipment for
use on site,
to provide safety personnel to inspect the equipment which were being
utilized at the time of the incident and to
provide qualified
supervisors;
(b)
The Defendant failed to carry out its said obligation and breached
such duty of care in omitting to provide proper and safe
equipment
for use on the site, omitting to provide safety personnel to inspect
the equipment which were utilized at the time of
the incident and
omitted to provide qualified supervisors;
(c)
. . . .’
[12] Dormac admitted in
its plea that only one safety officer was available on the night in
question and that it had an obligation
to provide proper and safe
equipment for use on site, but pleaded that it is not the obligation
of its safety officer to check
equipment; that the responsibility to
check the equipment while it was being used rested on Camrod; that
the equipment supplied
was in good condition and had been checked and
certified as such; that the reason a link in the chain block failed,
causing injury
to the respondent, was the failure of the lug which
had been welded by the respondent and that in turn led to unexpected
excessive
force on the chain block; and that chain blocks were the
usual equipment used for the work that was being carried out and
therefore
appropriate.
[13] Three witnesses
testified on behalf of Dormac, namely Joubert, Mr Gerald Wayne
Blenner-Hasset, who had been attached to a company
that manufactured
chain blocks and later to companies that repaired and tested chain
blocks, and Mr Clinton Elton Cochoran, a safety
officer employed by
Dormac. A summary of Joubert’s evidence follows. The sole
member of Camrod is his brother, Mr Jerome
Joubert. He (Joubert) was
on duty on the night of the incident. As foreman he would compile a
list of the equipment that would
be required for work to be done. The
list would then be handed to the storeman on duty at Dormac’s
stores who would make
an
entry in their requisition records. The storeman would thereafter
draw
the equipment and place
it at the front of the store where he (Joubert) would
personally check it. The equipment would then be loaded on a Dormac
truck
and taken to the dry dock.
[14]
On the evening in question he showed the respondent the plate that
had to be fitted onto the ship and gave him a one 2-ton
and two 1-ton
chain blocks. He also made available to the respondent one burner and
a welder. However, the respondent told him
that he (respondent) did
not require a welder as he did not trust anyone but himself. The
respondent then welded two lifting lugs
onto the plate, one on the
‘forward’ side, ie the side that was closest to the front
of the ship, and the other on
the ‘aft’ side. The
respondent also welded lifting lugs inside the ship, ‘on the
tank top’, according to
Joubert. The respondent then hooked a
2-ton chain block onto the lug on the narrow side of the plate and a
1-ton chain block onto
the lug on the wider side. Joubert said that
he advised the respondent to weld another lug onto the centre of the
plate, otherwise
the plate would not ‘lift up square’.
The respondent obliged and after he had welded another lug to the
centre of the
plate he hooked the third chain block (1-ton) onto that
lug. When all three chain blocks had also been hooked inside the ship
the
plate was pulled up into position by the two assistants. Once the
plate was properly aligned to the hole in the ship he (Joubert)
instructed the respondent to start ‘dogging the plate in and
tacking it up’
6
from the side
closest to the rear of the ship.
[15]
Joubert further testified that when the respondent had welded on
strong backs
7
he continued
‘dogging and wedging’ the plate, moving backwards towards
the narrow end of the plate. When he reached
the centre of the plate
the narrow end suddenly fell down to the ground brushing the witness
on his shoulder as it went down. The
respondent then ‘came out
from underneath the ship holding his hand’, so Joubert
continued. The side of the plate to
rear of the ship was still up
against the ship, he said. When the respondent removed his glove they
noticed a lot of blood on his
hand although they could not see ‘what
was the damage to [the] hand
’
.
He thereafter
instructed Sookool to take the respondent to hospital. The latter was
accompanied to hospital by his brother.
[16] Joubert’s
testimony continues that he then inspected the plate and noticed that
the lug on the front side ‘had
torn off the plate’. It
was dangling in the air on the hook of the chain block. He noticed
that the centre chain block had
snapped and its hook was still
attached to the centre lug. He then inspected the wider side of the
plate and saw that the chain
block was still hooked onto the lug.
Contrary to the testimony of the respondent and Johnson, Joubert said
that only the front
side of the plate fell to the ground, with the
side to the rear still held up by a chain block. A burner, a Mr
Labuschagne, who
had been inside the ship, trimming the plate, then
slid out of the ship. Joubert said that at the time that part of the
plate fell
Johnson was cutting strong backs from a metal sheet which
he had rested on a paint tin ‘underneath the plate’.
However,
he came out from underneath the plate seconds before it
fell.
[17] After he had done
his inspection Joubert called another welder, Mr Eric van Wyk, who
welded the lug that had ‘torn off’
back onto the narrow
side of the plate. The centre chain block, which had snapped, was
replaced with another 1-ton chain block
and the plate was pulled up
into position again. He called Johnson back and instructed him to
continue with what the respondent
had been doing, i.e. fitting the
plate.
[18] From what he saw as
the incident occurred and upon inspecting the scene Joubert concluded
that the cause of the narrow side
of the plate falling was the lug
that tore off, causing a ‘whiplash effect snapping the centre
chain block’. He testified
that it was not his duty to check or
to ensure that boilermakers can adequately weld lugs onto a metal
sheet, but that it was his
duty to ‘give them a welder’.
In this case the respondent specifically said he would do the welding
of the lugs himself.
[19] Clinton Cochoran
testified that on 4 July 2002 he saw a 1-ton chain block marked
number ‘6’ in a cardboard box
on the floor of Dormac’s
stores. It was dirty and ‘one of the chains was broken’.
It was together with other
equipment that was to be sent to Nu Quip
CC, a close corporation that supplied and tested lifting equipment.
He said that upon
being returned to Dormac, rigging and lifting
equipment, such as chain blocks, is placed or kept in a separate area
for collection
by someone from Nu Quip for testing and service, after
which a certificate would be issued by Nu Quip in respect of each
piece
of equipment, certifying that it may be ‘put back into
service’. A document to which Cochoran was referred, headed
‘CONSUMABLE/EQUIPMENT STORES REQUISITION’, indicates that
among the equipment issued by Dormac on 28 June 2002 were
five 1-ton
chain blocks, two of which were recorded as numbers ‘5’
and ‘6’. Those numbers are encircled,
which meant they
had been returned to Dormac’s stores. (According to Cochoran,
Dormac’s chain blocks and other equipment
have tags attached to
them and a number appears on each tag for Dormac’s own internal
identification.) The ‘returned
by’ column on the document
reflects that chain block number 6 was returned to Dormac on 4 July
2002. Only one 2-ton chain
block is recorded on the document as
having been issued together with the five 1-ton chain blocks and
other equipment on 28 June
2002.
[20] Cochoran’s
further testimony was that the document was given to him during the
morning of 4 July 2002 by the stores supervisor,
a Mr McDonald, who
instructed him to draw the certificates for chain blocks numbers ‘5’
and ‘6’. This was
after they had received information
about
the accident at the
dry dock. He was also instructed to highlight, on the document,
equipment that had been returned, for the attention
of the safety
officer, a Mr Beyleveld, who was commonly known as ‘Rocky’.
He accordingly wrote the following on the
document:
‘
1
x 1T chain block – H5
1
x 1T chain block – H6
1
x 1.5T Come-A-Long – H1
Broke
on job. Dry Dock
1
x I.O.D.’
According to Cochoran the
‘1x I.O.D’ is an abbreviation for ‘one injured on
duty’.
[21] Mr Blenner-Hasset’s
evidence may be summarized thus. His experience in dealing with
lifting equipment, particularly chain
blocks, stretches from 1967. In
that period he had been involved in the manufacturing, repairs and
testing of chain blocks. He
has personally done repairs and testing.
At the time of the trial he was attached to Nu Quip where he held a
member’s interest.
On Friday, 5 July 2002, Dormac’s
safety officer, Rocky (Beyleveld), delivered a 1-ton chain block with
serial number 82529
and bearing the number ‘6’ at Nu
Quip’s offices. Beyleveld alleged, he said, that the chain
block ‘had
failed and snapped under a load’. Beyleveld
asked him to inspect the chain block in his presence. A length of
chain was cut
above the break and tested by pulling it ‘to
destruction’ by means of a hydraulically operated machine. (The
chain
block broke at a recorded break load of 4.9 tons.) He compiled
a report in the form of a letter dated 8 July 2002 addressed to
Dormac, for attention ‘Rocky – Safety Officer’.
Inspection of the chain block, according to the report, which
Blenner-Hasset confirmed in his evidence, revealed that ‘it had
in fact elongated’ immediately before and after the
failed
link. This was a ‘clear indication of an overload or shock
load’.
[22] There are three
material differences in the versions of the respondent on the one
hand and Joubert on the other. They relate
to these issues: (1)
whether only two chain blocks were used in pulling up the metal
plate, i.e. whether or not a chain block was
hooked onto the centre
lug, after which Joubert instructed that it be removed; (2) whether
only one side of the length of the plate
fell to the ground or
whether the whole plate did; and (3) the lifting capacity of the
chain blocks that were used on the job during
the evening of the
incident.
[23]
After analyzing the evidence and having referred to what was said by
Coetzee J in
African
Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 234
(W) the learned judge a quo held that ‘the facts of
this case admit to no probabilities one way or the other’ and
that,
therefore, if he were to find in favour of one party he ‘must
be satisfied that the evidence advanced on behalf of that party
is
true and that [that] tendered on behalf of the other is false’.
The learned judge continued:
‘
Having
considered and evaluated the evidence which was presented by the
parties against the factors set out by Nienaber JA in
SFW
Group Ltd & Another v Martell et cie & others
[2003
(1) SA 11
(SCA) 14 para 5], I have been driven to the conclusion that
the plaintiff’s version of the events that unfolded during the
relevant incident is a preferable one.’
8
[24] With regard to the
chain block that was tested by Blenner-Hasset on 5 July 2002 the
court below reasoned thus:
‘
The
first shortfall in the chain is lack of the particulars of the
identity of the person who had removed the relevant chain block
from
the scene and gave it to Beyleveld. Also, the court is kept in the
dark as to when and by whom was the said chain block placed
on the
floor at the stores. Finally, the person who had allegedly retrieved
the chain block from the scene and who had allegedly
delivered it at
the offices of Nu Quip on 7 July 2002 was not called to testify. This
Court is accordingly not satisfied from this
chain of evidence that
the 1-ton broken chain hoist, which was delivered for inspection at
Nu Quip and on the basis of which that
firm had compiled a report, is
the same chain block that had snapped during the occurrence of the
incident in question.’
9
[25]
In my view, this reasoning is erroneous. It is true that during his
testimony Joubert asserted that he would have requisitioned
the chain
blocks that were used during the evening in question, while the
documentary evidence clearly indicates that chain block
number ‘6’
was requisitioned on 28 June 2002. It seems to me that Joubert may
very well be mistaken in this regard,
or even
untruthful.
(It will be recalled that the respondent testified that he went to
fetch the three chain blocks from Camrod‘s
mobile store at the
bottom of the dry dock.) On the other hand, the probabilities point
to the respondent and Johnson also being
mistaken, if not untruthful,
when they said that the two chain blocks the respondent used to lift
the plate were 2-ton chain blocks.
The probabilities appear to me to
favour Dormac’s version that 1-ton chain blocks were used,
leaving aside the question whether
or not a third chain block was
used on the centre lug of the plate. Joubert testified that when ‘the
day shift came on shift
in the morning the damaged chain block was
handed to the dayshift safety officer’, Mr Beyleveld. Even
though Cochoran’s
testimony was that he saw a dirty, broken
chain block in a box on the floor of Dormac stores, which he
identified and noted down
as chain block number ‘6’, that
very same chain block was delivered personally to Nu Quip by
Beyleveld. Cochoran identified
it as a 1-ton chain block and
Blenner-Hasset, who inspected and tested it, also identified it as
such. There was no evidence whatsoever
to suggest that a second chain
block had broken during that same evening (of the accident) or the
previous day. And some elaborate
scheme would have had to have been
hatched, involving more than one person, to hide the chain block that
broke while being used
by the respondent and to replace it with
another broken chain block. No reason was suggested as to why Dormac,
or anyone else,
would have found it necessary to hatch such a scheme.
After all, the evidence was that two 1-ton chain blocks would have
been sufficient
to lift the metal plate.
[26] In my view, the
probabilities point to the 1-ton chain block that was tested by
Blenner-Hasset being the same one that broke
or snapped. It does not
follow, however, that the version of the respondent on how the
accident occurred must be rejected. But
the finding that I have just
made, albeit not necessarily affecting the decision of the court
below to accept the respondent’s
version of events (except for
the ‘size’ of the chain block), does affect its further
reasoning relating to its finding
on liability.
[27] The result of the
court a quo’s finding that the chain block that was tested by
Blenner-Hasset was not the same chain
block ‘that had snapped
during the occurrence of the incident in question’ was a
further finding that the link (of
the 2-ton chain block according to
its finding) that snapped would not have broken ‘in the
ordinary course of things without
negligence on the part of somebody
other than the [respondent]’. The court accordingly held that
‘the surrounding circumstances
. . . point to the probability
that the chain block was defective at the time when it was supplied
to the [respondent]’.
The finding of negligence was thus based
on the principle
res ipsa loquitur
, the court inferring
negligence on the part of Dormac from the failure of a chain block
that should not have failed had it been
in proper working condition.
[28] Counsel for Dormac
submitted that the court a quo erred in rejecting Joubert’s
evidence which, according to counsel,
was corroborated to some extent
by the evidence of Blenner-Hasset that the chain block that he had
tested was a 1-ton chain block.
Joubert’s version, counsel
contended, was accordingly not improbable. There are certain other
aspects of the judgment of
the court a quo that counsel for Dormac
criticized, one being the learned judge’s approach to the
evidence and his alleged
interference during the trial, which, so it
was submitted, affected the court’s assessment of the evidence
and its credibility
findings.
[29] In the view I take
of the matter, it is not necessary for me to embark upon an
assessment of all the evidence so as to arrive
at a finding as to
which version is true and which is false. I shall assume, for
purposes of this judgment, that the respondent’s
version is
true, subject to my earlier finding that the chain block that broke
while being used by the respondent was the same
one that was tested
by Blenner-Hasset. I shall, later in the judgment, if necessary, deal
briefly with counsel’s submission
on the alleged interference
by the trial judge during the trial.
[30] The question whether
the appellant was or was not the wrong defendant in the respondent’s
claim is not in issue here.
Nor do questions of vicarious liability
come into the picture. The essence of the respondent’s case is
that Dormac owed him
a duty of care to provide proper and safe
equipment (in this case chain blocks) for use on site and that it
breached such duty
of care by failing or omitting to provide proper
and safe equipment. It was also alleged that Dormac omitted to
provide safety
personnel and qualified supervisors to inspect the
equipment which was utilized at the time of the incident. The court a
quo did
not deal with this issue and before us counsel did not
advance any argument on it. Nothing more need be said on this issue.
[31]
In view of the finding that I have made that the chain block that was
inspected and tested by Blenner-Hasset was the same chain
block that
broke while being used by the respondent, it becomes necessary to
consider whether the respondent succeeded in establishing
negligence
on the part of Dormac on the grounds alleged in the particulars of
claim. In
McIntosh
v Premier, KwaZulu-Natal & another
2008
(6) SA 1
(SCA). Scott JA said the following:
‘
As
is apparent from the much quoted dictum of Holmes JA in
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430 E-F, the issue of negligence itself involves a
twofold enquiry. The first is: was the harm reasonably foreseeable?
The
second is: would the
diligens
paterfamilias
take
reasonable steps to guard against such occurrence and did the
defendant fail to take those steps? The answer to the second
inquiry
is frequently expressed in terms of a duty. The foreseeability
requirement is more often than not assumed and the inquiry
is said to
be simply whether the defendant had a duty to take one or other step,
such as drive in a particular way or perform some
or other positive
act, and, if so, whether the failure on the part of the defendant to
do so amounted to a breach of that duty.’
10
The
learned judge was at pains to warn that the word ‘duty’
should not be confused with the concept of ‘legal
duty’
in the context of wrongfulness which, he said, is distinct from the
issue of negligence.
11
[32]
As I have mentioned above, Dormac admitted in its plea that it had an
obligation to provide proper and safe equipment for use
on the site
to Camrod, but denied that the chain blocks used were old, or unsafe,
or defective. It pleaded further that the equipment
supplied to
Camrod ‘was in good condition and had been checked and
certified as such’. From this it seems not to have
been in
issue that a
diligens
paterfamilias
in
the position of Dormac would have foreseen the possibility of old,
unsafe or defective chain blocks causing harm to artisans
who might
use them to lift heavy objects in the performance of their duties at
the dry dock. Dormac’s allegation in its plea
that the
equipment it supplied was in good condition and had been checked and
certified as being in good condition presupposes,
in my view, an
acceptance of the existence of a duty on its part to take reasonable
steps to guard against such harm. Indeed, there
was no evidence, nor
argument advanced before us, to suggest that no such duty existed.
The next question, then, is whether Dormac
did take precautions to
guard against harm and, if so, whether those precautions can be
regarded as reasonable.
[33] The respondent’s
father, Mr Gerald Ferdinand Henneberry, an engineer and boilermaker
with forty years’ experience,
testified as an expert witness on
behalf of the respondent. His evidence was based on the respondent’s
version that two 2-ton
chain blocks were used to lift the metal
plate. He never inspected or tested the broken chain block, but gave
an opinion on the
reason why it would have snapped. He said the plate
would have been under stress and there would have been ‘something
defective
with the chain block that snapped’; there would
possibly have been a weak link which could have had a hairline crack
‘that’s
not visible with the naked eye’. I do not
think much store can be placed on this piece of evidence, especially
when compared
with the evidence of Blenner-Hasset, who was clear in
his testimony that the elongation of links immediately before and
after the
broken one and the fact that the break in what he called
the ‘shoulder’ of the link indicate that the chain block
had
been overloaded and stretched ‘beyond its point of
elasticity’. He also expressed the opinion that gouges which he
had discovered on some of the links of the chain block were evidence
of abuse.
[34] Cochoran’s
uncontradicted evidence was that when chain blocks are returned to
Dormac’s stores after they had been
used, they are ‘signed
off the requisition’ (as having been returned) and then sent to
Nu Quip for inspection. The
equipment is not placed back on the shelf
as it has to have ‘a register and a certificate’ issued
by Nu Quip ‘before
it can be put back into service’. It
is not issued out to another job before it is tested by Nu Quip. If a
piece of rigging
equipment is not used it still has to be tested by
Nu Quip once a year. Cochoran confirmed that a certificate issued and
signed
on behalf of Nu Quip in respect of a chain block described as
a ‘1 TON YALE CHAIN HOIST REPAIRED AND TESTED’, with the
reference ‘BLOCK 6’ and distinguishing mark 82529 (serial
number), relates to the broken chain block. The certificate
indicates
that the chain block was repaired and tested approximately on the
date appearing on the certificate, viz 7 December 2001.
He agreed
with the proposition, in cross-examination, that if the chain block
was used in July 2002 when the accident occurred,
this means that it
was never used after it had been tested until July 2002. It should be
remembered, to avoid confusion, that the
respondent obtained the
chain block (with two others) from Camrod’s mobile store during
the early hours of 4 July 2002. The
chain block had been booked out
to Camrod on 28 June 2002, approximately six days before it was used
by the respondent. The possibility
that it had been used elsewhere,
or by someone else, before it was used by the respondent cannot be
excluded, especially if regard
is had to Blenner-Hasset’s
observation that certain links in the chain block had gouges.
[35]
Cochoran is supported by Blenner-Hasset, who testified that in terms
of the Occupational Health and Safety Act
12
chain hoists have
to be tested at least once a year and that the certificate issued on
7 December 2001 was in compliance with that
legislative requirement.
He also said that Dormac’s chain blocks generally appeared to
go to Nu Quip on a regular basis where
‘each batch of hoists
that came in get inspected on arrival and they get stripped down so
that they get re-greased and any
working parts within the block that
might be damaged can be checked’. After a chain block has been
assembled again it is
tested and another certificate is issued which
he referred to as a proof load certificate ‘to say that it has
been proof
loaded again’.
[36] I mention, as a
matter of interest, that Cochoran and Blenner-Hasset were indirectly
supported by Henneberry senior. He said
that in a company for whom he
worked (at the time of the trial) a register was kept ‘of all
our lifting equipment and they
get tested annually or even six
months’. When they had a slack period the equipment was tested
‘six months at a time’.
[37] In
Cape
Metropolitan Council v Graham
2001(1) SA 1197 (SCA) Scott JA
said:
‘
[I]t
is now well established that whether in any particular case the
precautions taken to guard against foreseeable harm can be
regarded
as reasonable or not depends on a consideration of all other relevant
circumstances and involves a value judgment which
is to be made by
balancing various competing considerations. These would ordinarily
be:
“
(a)
the
degree or extent of the risk created by the actor’s conduct;
(b)
the
gravity of the possible consequences if the risk of harm
materialises;
(c)
the
utility of the actor’s conduct; and
(d)
the
burden of eliminating the risk of harm”.
(See
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 776H-J, where J C van der Walt in Joubert (ed)
The
Law
of
South Africa
vol
8 para 43 is quoted with approval;
Pretoria
City Council v De Jager
1997
(2) SA 46
(A) at 55H-56C.) If a reasonable person in the position of
the defendant would have done no more than was actually done there
is,
of course, no negligence.’
13
And in
Pretoria City
Council v De Jager
1997 (2) SA 46
(A) at 55I the same judge
observed that ‘merely because the harm which was foreseeable
did eventuate does not even mean that
the steps taken were
necessarily unreasonable’.
[38] In
Chartaprops 16
(Pty) Ltd and another v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA) the
respondent, while visiting a shopping mall in Johannesburg, slipped
on a slippery substance in one of the passageways
of the mall and was
injured. She subsequently sued Chartaprops, the owner of the mall,
and another entity, Advanced Cleaning, which
had been contracted by
Chartaprops to keep the floors of the shopping mall clean, for
damages. The basis of the claim against the
appellants was that they,
or those for whose conduct they were legally responsible, had created
the hazard in that they or
their employees
negligently omitted to detect and remove the hazard. It was not in
dispute that Chartaprops itself kept a regular
check on advanced
cleaning’s performance, its centre manager consulting each
morning with the cleaning supervisor and personally
inspecting the
floors of the shopping mall daily to ensure that they had been
properly cleaned. He would arrange for the immediate
removal of
litter or spillage that he encountered. The trial court found for the
respondent, holding that Chartaprops’ liability
arose
vicariously for what was said to be negligence on the part of
Advanced Cleaning.
[39] In allowing the
appeal Ponnan JA, writing for the majority, and after alluding to the
general rule that a principal is not
liable for the wrongs committed
by an independent contractor or its employees, said the following:
‘
Chartaprops
did not merely content itself with contracting Advanced Cleaning to
perform the cleaning services in the shopping mall.
It did more. Its
centre manager consulted with the cleaning supervisor each morning
and personally inspected the floors of the
shopping mall on a regular
basis to ensure that they had been properly cleaned. If any spillage
or litter was observed, he ensured
its immediate removal. That being
so it seems to me that Chartaprops did all that a reasonable person
could do towards seeing that
the floors of the shopping mall were
safe. Where, as here, the duty is to take care that the premises are
safe I cannot see how
it can be discharged better than by the
employment of a competent contractor. That was done by Chartaprops in
this case, who had
no means of knowing that the work of Advanced
Cleaning was defective. Chartaprops, as a matter of fact, had taken
the care which
was incumbent on it to make the premises reasonably
safe.’
14
The
learned judge reasoned further that Chartaprops ‘was obliged to
take no more than reasonable steps to guard against foreseeable
harm
to the public’.
15
[40]
Assuming, for present purposes, that in this case the chain block
that broke was not rendered defective while it was in Camrod’s
custody after it had been booked out on 28 June 2002, I am of the
view that the steps taken by Dormac to guard against foreseeable
harm
by sending all rigging equipment returned to it after use by Camrod
and other contractors to Nu Quip, an independent contractor,
for
inspection and testing before being put to use again, were
reasonable. The specific chain block had not been used after it
was
repaired and tested on or about 7 December 2001 until it was booked
out to Camrod on 28 June
2002. It
would therefore not have been sent back to Nu Quip for another test
without having been put to use before 28 June 2002.
It has not been
suggested that Dormac, upon receipt of the chain block following
repair and testing, should itself have checked
or tested it for
defects. Nor was it suggested that Dormac had any personnel
qualified, or the machinery, to test chain blocks
as a safety
precaution after they had been tested by Nu Quip. But, in any event,
it was not suggested that Dormac could and should
have taken any
other steps or action to guard against foreseeable harm. It follows
that the respondent failed to discharge the
onus resting upon it of
proving negligence on the part of Dormac. It follows further that the
court a quo erred in saddling Dormac
with liability on the basis of
the principle
res
ipsa loquitur
.
The appeal must therefore succeed.
[41] I return to the
contention by counsel for Dormac that the trial judge ‘constantly
interrupted the flow of evidence by
seeking clarification, passing
comments, making jokes and, not infrequently, rebuking the witness or
counsel’. A perusal
of the record reveals that counsel’s
submission is not unfounded. But in view of the conclusion I have
reached it is not
necessary to deal with the contention that the
learned judge’s credibility findings were influenced by his
alleged interference
and questioning of the appellant’s
witnesses.
[42] There remains the
question of costs. Volume 2 of the record, which consists of 90
pages, contains a few documents which were
of relevance in the
appeal. Some of them were duplications as they were also contained in
other volumes. In my view, the rest (two
or three) of those relevant
documents could have been included in other volumes, thereby
rendering volume 2 totally unnecessary.
Counsel for the appellant
(Dormac) conceded that costs pertaining to the preparation of it are
not justifiable.
[43] In the result:
1. The appeal is upheld
with costs, such costs to exclude the costs of
preparing volume 2 of the
record.
2. The order of the court
below is set aside and the following is substituted:
‘
Absolution
from the instance is granted, with costs.’
____________________
L Mpati
President
APPEARANCES
APPELLANTS: M Pillemer SC
Instructed by Berkowitz
Cohen Wartski, Durban;
Rosendorff Reitz Barry.,
Bloemfontein
RESPONDENT: R B G
Choudree SC
Instructed by Aradhana
Dharamdaw & Associates, Isipingo;
Hill McHardy &
Herbst, Bloemfontein
1
Lugs
are metal rings by which the steel plate was to be lifted into place
by means of chain blocks or lifting equipment.
2
The
reference to ‘tonnage’ relates to the weight the chain
blocks are meant to lift although they are able to lift
heavier
items. The breaking strength of a 1-ton chain block is said to be
4.9 tons.
3
A
chain block has two hooks. One is hooked onto a stable structure so
as to support the weight of the object to be lifted and
one onto the
object itself.
4
A
wedge is apparently also used in the process of keeping the plate
flush in position.
5
The
term ‘aft’ refers to the rear of the ship.
6
‘
Tacking’
is to keep the plate into position by means of small welds in the
seam that hold it firmly together with the hull.
7
Apparently
strong backs are welded onto both the new plate and the body or hull
of the ship so as to keep the new plate and hull
in line. When
strong backs have been welded on the dogs and wedges can be removed.
8
Para
103 of the judgment.
9
Para
92 of the judgment.
10
Para
12.
11
Ibid.
12
85
of 1993.
13
Para
7.
14
Para
46.
15
Para
48.