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[2018] ZAKZDHC 30
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Eazi Access Rental (Pty) Limited v WBHO (Pty) Limited and Another (3661/2013) [2018] ZAKZDHC 30 (12 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 3661/2013
In
the matter between:
Eazi
Access Rental (Pty)
Limited Plaintiff
and
WBHO
(Pty)
Limited First
Defendant
Rickerd
Trading 17CC t/a Titan
Projects Second
Defendant
Judgment
Lopes,
J:
[1]
The plaintiff in this matter, Eazi Access Rental (Pty) Limited (‘Eazi
Access’) instituted action against WBHO (Pty)
Limited (‘WBHO’)
and Rickerd Trading 17CC, a close corporation which trades as Titan
Projects (‘Titan’).
Eazi Access’s cause of action
against WBHO was based on a contract concluded between Eazi Access
and WBHO in March 2010.
Eazi Access leased to WBHO a diesel
scissors lift (‘the platform hoist’) for use on the
construction site at the New
Cargo Trade House, King Shaka Airport,
KwaZulu-Natal (‘the warehouse’). Eazi Access
alleges that the platform
hoist was delivered in good order and
condition, and when returned, it was damaged beyond economic repair,
having caught fire and
been burnt out. That contractual claim
has been settled as between Eazi Access and WBHO.
[2]
Eazi Access’s action against Titan is based solely in delict.
Titan’s plea is a bare denial. At the outset of the
trial the
parties agreed that the issues of liability and quantum be separated,
and I made an order accordingly in terms of rule
33 (4) of the
Uniform Rules of this court.
[3]
The first witness for Eazi Access was Leslee Elijah Pillay, who
testified that he had been a logistics manager at Eazi Access
for
approximately eight years. In March of 2010 he had also been a
logistics manager and training officer at Eazi Access.
His
responsibilities included the entire fleet of machines and vehicles
which were hired out by Eazi Access. He ensured that machines
were
made ready for rental, were delivered, and then were recovered after
the rental period. He was able to confirm that
the platform
hoist which forms the subject matter of this case, was purchased by,
and owned by, Eazi Access. He confirmed
that a problem arose
with the platform hoist, and it could no longer be used. A
replacement machine was then hired out and
delivered to the site
(‘the replacement-lift’). Normally a broken-down
machine is removed from the site, but
this was not done in this case.
Mr Pillay testified that the platform hoist was slightly
different from the replacement-lift,
in that the platform hoist
worked vertically only, whilst the replacement-lift was able to raise
a platform vertically and then
move it horizontally, whilst elevated.
[4]
The second witness was Gloria Lynette Richardson, who was employed
during 2010 as the safety officer for Group Five at the King
Shaka
International Airport site. She had been a safety officer for
approximately 19 years. She was aware of the incident
when the
platform hoist was burnt out. It had occurred on a Saturday
morning, and she had been called and told that there
was a fire in
the warehouse. Officers from the fire station, which was nearby, got
involved and they quickly put the fire out.
[5]
Ms Richardson confirmed that the ‘hotworks operator’
working in the warehouse had been Titan. She said that
Titan
had been moving around the warehouse doing ‘hotwork’ –
ie cutting, grinding and welding metal (‘anything
to do with
sparks’). Ms Richardson confirmed that Riccardo Tripepi and one
Llewellyn Thompson (‘Junior’) had
constituted the
supervising team working for Titan. In addition one Keith
Mathys was also present.
[6]
Ms Richardson said that she could not recall anything about a
previous incident on Thursday the 15
th
April 2010 when the platform hoist was damaged. She recalled
that when she had responded to the fire alarm she had seen flames
against the wall next to where the platform hoist was standing.
The platform hoist itself was cordoned-off with snow netting.
It later became clear that this snow netting was put into place after
the incident on Thursday the 15
th
April 2010. Ms Richardson confirmed that at the time of the
fire on the 17
th
April 2010, employees of Titan were using the replacement-lift.
[7]
Ms Richardson confirmed the procedure followed on the site. As
the safety officer, she was required to attend to all the
documentation and ensure that every person on the site was registered
to be there. In this regard, each company working on
the site
would provide her with a safety file containing all the necessary
details of the people working there. The safety
file was kept
by her and returned to the main contractor at the end of the project
when the file was archived. Every company
working on the site
who had given her information, however, should have kept a copy of
the safety information which they gave to
her. That information
included a record that each employee working on the site had been
properly inducted – ie trained
in the safety aspects when
starting on the job, and their individual qualifications to be on the
site and perform the functions
for which they were trained, would be
recorded as well.
[8]
Ms Richardson was unable to recall many of the matters put to her in
examination-in-chief and cross-examination. She could
not
remember, for example, that Nurshin Naidoo was employed by Extreme
Safety as a safety officer on the site. She also could
not
recall that Titan had used a company named Extreme Safety as their
designated safety officer for the project. Ms Richardson
was of the
view that if a full time safety officer on site had been employed,
she would have recalled it.
[9]
It was put to Ms Richardson in cross
-
examination
that at the time of the fire on Saturday the 17
th
April 2010, the Titan employees had been working on steel beams which
extended from the top of a wall in the warehouse to its roof.
They had used the platform hoist initially, and subsequently, the
replacement-lift in order to do that work.
[10]
Ms Richardson was also unable to recall, but accepted, that after the
incident on Thursday the 15
th
April 2010, she had declared the area in the warehouse around the
platform hoist to be unsafe. She conceded that she would
have
insisted that Titan make the area safe before proceeding with any
further works. Ms Richardson was also unable to recall
that she
had advised Titan on the Friday that they could continue with the
hotworks.
[11]
It was put to Ms Richardson that one Keith Mathys performed work on
behalf of Titan, but was not employed by them. She
said that
she had accepted that all the people working with Titan at that stage
were their employees. She did not recall
a subcontractor having
been hired by Titan to do the hotworks, and said that if that had
been the case their details would be in
the safety file. She
emphasised that there would have had to have been an agreement for
any subcontractor to be on site,
and there would have been a sub-file
in respect of that subcontractor contained in the safety file.
Ms Richardson maintained
that, had she seen the Titan workers
conducting hotworks above the platform hoist, she would have stopped
them from doing so immediately.
[12]
The next witness for Eazi Access was Tobias Johannes Janse van
Rensburg, a professional senior architectural technologist.
His
employers were the architects on site, and he was responsible for
liaising between the site works and his offices with regard
to the
design, drawings and other architectural works on site. Each
day, he went through the warehouse in order to familiarise
himself
with the progress so far, and to decide what needed to be done or
built on that day. He dealt with requests and queries,
etc.
In the course of doing so, he liaised with Riccardo Tripepi, Keith
Mathys and Junior Thompson. They would discuss specifics
of the steel
details and the hotworks to be performed.
[13]
Mr Janse van Rensburg had taken the photographs which formed exhibit
“B” at the trial, and which depicted the platform
hoist
in the fore-ground surrounded by the snow netting, with the
replacement-lift in the background. These photographs were
taken on the Saturday, after the fire, and the damage done to the
warehouse wall by the fire may clearly be seen by the black section
in the photographs directly adjacent to where the platform hoist is
standing.
[14]
Mr Janse van Rensburg’s knowledge of the platform hoist was
that he had been told on Thursday the 15
th
April 2010 by one of the staff of Ilembe Joint Venture, the principal
contractor who was responsible for the entire project, that
the
platform hoist had broken down and they were waiting to be able to
remove it from the building. They said the machine
had been
made safe, and would stay there until removed. It was unable to
be removed because there was no access to the inside
of the
warehouse, and it was necessary for a ramp to be constructed in order
to remove the platform hoist. The ramp had been
constructed
when the platform hoist was brought into the warehouse, but had been
removed.
[15]
Mr Janse van Rensburg was asked whether a Drizit spill-kit was used
in relation to the platform hoist. (Drizit is a company
which
specialises in cleaning up industrial spillage and environmental
damage. A diesel spill had occurred on Thursday the 15
th
April 2010 below the platform hoist). He maintained that on the
Thursday he had seen a drip tray below the platform hoist.
The
only person he had seen working on the beams above the machinery
depicted in exhibit “B” were the employees of
Titan.
He maintained that if he had seen them working in the area above the
platform hoist, he would immediately have stopped
them.
[16]
Mr Janse van Rensburg had no specific knowledge of the employment
relationship between the persons doing the hotworks and Titan.
He assumed that they were all employees of Titan. He was unable
to recall whether any hotworks had been done on the Friday.
Mr
Janse van Rensburg estimated that the distance between the two
machines depicted in exhibit “B” – ie the platform
hoist and the replacement-lift – was no more than four metres.
He testified that no other contractors were performing
hotworks on
the Saturday. He would have known had there been any. After the
Thursday incident, hotworks had only been stopped in
the immediate
area around the platform hoist.
[17]
The next witness was Daniel Andrew Joubert, a forensic fire
investigator and fire engineer. His qualifications and
experience
as a fire expert were not disputed. He had been asked to
provide an expert assessment of the fire which took place on the 17
th
April 2010. His investigation was based upon information
provided and photographs, as well as the previous expert opinion
of
one doctor Froneman, who is now deceased. Mr Joubert had never
visited the site but relied upon the photographs in exhibit
“B”.
[18]
Based upon the information given to him, he concluded that a
hydro-carbon fire existed between the platform hoist and the wall,
originating at the floor or a very low level. The fire was of
reasonably large intensity at the ground level, which was evidenced
by the oxidation of the metal plates exposed to the heat. Based
on the information he was given, the fire had started because
welding
was taking place above the platform hoist. A spark from
welding, or, more likely, a globule of molten metal had caused
the
fire. Mr Joubert was told that there had been a diesel spillage
below the vehicle which had occurred on the 15
th
April 2010, and which had been cleaned up with an absorbent material.
[19]
Mr Joubert stated that the absorbent material generally used by
Drizit was peat-moss and its function is to absorb spilt liquid
and
prevent the liquid spreading. Once the peat-moss has absorbed the
fluid, it is then taken to a disposal site. He testified
that diesel
has an ignition temperature of approximately 55ºC, and that it
would be difficult to ignite a bowl of diesel in
the courtroom with a
lighter, because the temperature of the diesel would be less than the
flash point. If the diesel was
heated to above 55ºC, a
sustained flame would occur. However, where the liquid is
absorbed into a material, the vaporisation
of the liquid occurs over
a 360º arc, like a wick in a candle. Here temperature does
not play the same role, because
the liquid is contained in an
absorbent material.
[20]
The temperature of sparks which are emitted during welding range
between 1200ºC and 1800ºC. Angle grinding
or cutting
sparks are relatively short-lived for approximately six to seven
metres, but globules of molten metal would retain the
temperature for
far longer. Such globules will almost certainly cause a fire if
they come into contact with diesel soaked
material, because they are
so hot. That welding creates such globules is a well recorded
hazard of welding, and the training
of welders covers the risks of
hotworks.
[21]
With regard to a safe working distance from where hotworks are being
carried out, Mr Joubert stated that it is generally expected
by
Occupational Health and Safety that welding can cause metal globules
to be thrown approximately 10 metres (33 feet), and the
higher the
area where works are being carried out, the further the trajectory
will be. The self-ignition temperature of diesel
is 250ºC,
and if it is heated to anything close to that temperature it will
spontaneously combust. Any temperature over
that is certain to
cause a fire. A globule would have to drop in temperature from
approximately 1500ºC to below the
ambient temperature for there
to be no fire. Mr Joubert opined that the ventilation provided
by a doorway adjacent to the
platform hoist would have resulted in a
more intense fire beneath the vertical black marks seen on the wall
next to the platform
hoist. The smoke deposition was all of the
same type and indicated the same material was burning across the
length of the
area between the machine and the wall. The burn
pattern on the wall was consistent with a diesel / peat-moss mixture.
[22]
Mr Joubert said that he had not made contact with anyone from Drizit
in order to establish what material had been used to clean
up the
diesel spill which had occurred on the 15
th
April 2010. He stated that whatever absorption material had
been used, whether it was cloth, towelling, sand or peat-moss,
the
result would have been the same.
[23]
When asked in cross-examination whether it was safe to leave the
broken- down machine in a place where hotworks were being
carried
out, Mr Joubert said that it was dangerous to weld above any static
equipment. He was then asked whether any measures
could have
been taken if the machine could not be moved, for example by the use
of fire blankets, etc. Mr Joubert opined that any
welder worth his
salt would have used fire protection methods – ie fire blankets
for capturing the spatter, or a fire watch
with a fire extinguisher.
[24]
Mr Joubert described the peat-moss, which was used as a standard
product for the absorption of hydro-carbons, as a benign,
biodegradable material. He said that the diesel-soaked
peat-moss should had been removed immediately, and then on an ongoing
basis. He said that it was common where leaks occurred, to put
down another layer of peat-moss after the first layer had
been
removed. He was emphatic that it was not safe to allow the
hotworks to continue if the peat-moss was there. Mr
Joubert
thought that a drip tray would have been helpful if the leak was
continual. He was of the view that if one did hotworks
within
the 10 metre radius of the peat-moss / diesel mixture, there would
almost certainly be a fire. Anyone who was involved
in safety
or hotworks would know this. In response to a question whether
a hotworks worker should have seen or known of the
danger, Mr Joubert
stated that the worker was obliged to have inspected the surrounding
area, and known the risks that his works
would have entailed.
[25]
That was the case for Eazi Access. Titan then called Riccardo
Tripepi, a member of Titan who recorded that Titan was
an engineering
projects management company. It managed projects on a
sub-contract basis and work was always done by using
subcontractors.
Titan had tendered for the hotworks and had been awarded the contract
to provide 150, 100mm x 100mm columns
to be erected above the walls
in the warehouse. The tubing that was put in place was
manufactured in a workshop through another
subcontractor and
delivered to site to be erected. Mr Tripepi said that Group
Five, (one of the main contractors), made the
platform hoist
available to Titan to enable it to carry the hotworks, and Junior
Thompson was on site at all times as one of Titan’s
general
supervisors. Titan had done this type work before. The
training for operating the platform hoist was given
on site.
[26]
Mr Tripepi confirmed the necessity for each employee to go through an
induction process and for all the information of Titan
to be recorded
in the safety file. This process included an explanation of the
dangers on site, how to prepare for the works,
the protective
clothing to be worn, etc. Once the contract had been approved,
Titan contracted Extreme Safety to undertake
the safety on the site.
There were more than 20 people on the site which required a full time
safety officer. Members
of Extreme Safety would attend a site
meeting once a week, and once a day in the mornings they would be
available for what is described
as a ‘toolbox-talk’ which
took approximately 15 minutes, explaining the nature of the work that
was to be done that
day. Extreme Safety was responsible for all
safety on the site with regard to Titan, and was required to ensure
that all
equipment and documentation was in order, and to report to
the safety officer of the project. The Extreme Safety officer
who attended on the site was Nurshin Naidoo. Mr Tripepi liaised
extensively with him, and also with Grant Leibrandt, the managing
director of Extreme Safety. The safety file had been compiled
by the combined efforts of Mr Tripepi, Extreme Safety, and
the
subcontractor hired by Titan which was Abraham Steel & Piping
Fabricators CC. (‘Abraham Steel’).
Abraham
Steel fabricated, installed and erected general steel works.
They were obliged to go through precisely the same procedures
as any
other subcontractor and have the details of its staff contained in
the Titan safety file. In addition, their employees
had to know
how to use the platform hoist. Had Titan and its employees and
subcontractor not complied with all their obligations
on site, they
would have been asked to leave. Junior Thompson was Titan’s
site supervisor controlling the site, and
was present on site from
7:00am until the close of business every day.
[27]
Mr Tripepi was aware of the incident which occurred on the 15
th
April 2010 having been called in by Junior Thompson, who explained to
him what had happened. He went to the platform hoist
and saw
that the electric starter-motor had caught alight and ruptured the
diesel line causing a diesel spill. At that time
the platform
hoist was exactly where it is depicted in the photographs in exhibit
“B”. His view was that the
starter-motor fire had
been caused by an electrical or mechanical fault. Mr Tripepi
then went to see William Labuschagne
the contracts manager for the
principal contractor at the time and Tony, the foreman of the
principal contractor on site.
He reported the incident, and
part of the warehouse was shut down by way of a joint decision.
Mr Tripepi was aware that Ms
Richardson had been told of the fire.
Junior Thompson had been on the site and attended to the putting out
of the fire.
All hotworks had stopped at that point, because
Titan was unable to continue with the hotworks without the platform
hoist.
William Labuschagne then instructed an environmental
company, Drizit, to contain the diesel spill. Mr Tripepi was
not involved
with that process and worked elsewhere that day.
The next day the site was cordoned-off and the all-clear was given to
carry
on with the hotworks. The principal contractor then
provided the replacement-hoist.
[28]
Mr Tripepi recorded that when he arrived there the next day the snow
netting was in place as it is depicted in exhibit “B”.
He testified that he had been told that the platform hoist could not
be moved, and that that was why the snow netting was put into
place.
He maintained that Ms Richardson had said it was safe for Titan to
carry on working. He also recorded that Titan
was under extreme
pressure to complete the columns. That is why Titan had agreed
to work on Saturday the 17
th
April 2010. From an
inspection which he conducted on the Friday, he noticed that there
was still material underneath the
platform hoist, but it looked as if
the diesel spill was contained and they were given the go-ahead to
work on the Saturday.
[29]
The Titan team worked on the Friday and nothing untoward happened.
They had worked on the steel tubes visible above the
wall in the
photographs in exhibit “B”. After the fire on the
Saturday, Mr Tripepi had shut down the site and
pulled his workers
off the site. Work was only resumed on the Monday. They
were given authority to continue with the
works on Monday by Ms
Richardson and Tony the foreman. Mr Tripepi did not know what
material had been put down by Drizit,
and he had suggested that both
drip trays and fire blankets be used in the future. The hotworks were
completed on the Monday.
The safety file belonging to Titan was
handed over to the principal contractor, and Titan did not keep a
copy. He had made
enquiries regarding the whereabouts of the
safety file but was told that it has been archived and burnt in a
fire.
[30]
In cross-examination Mr Tripepi stated that he did not know exactly
how the fire had started. He said that Titan employees
were
working at an elevation of approximately six metres and the fire
could have been started by molten steel. No one had
seen it
start and they had just put it out. In contradiction to what
was suggested by Mr Janse van Rensburg, Mr Tripepi testified
that
there were no drip trays in place on either the Thursday or the
Friday. Mr Tripepi also admitted in cross-examination
that
Titan, via Junior Thompson, had the control of the hotworks.
Although he had not seen the hotworks being carried out
above the
platform hoist, he knew that they were working above it. His
view was that the diesel spill had been contained
and that his
subcontractor could carry on working above the platform hoist.
[31]
In re-examination Mr Tripepi suggested that if he had known that the
product which had been spilled was diesel he would not
have worked
there. In reply to a question by Mr
Ungerer
who
appeared for Eazi Access, Mr Tripepi stated that he did not know what
the absorbent material used by Drizit was, but he knew
that diesel
had been spilled.
[32]
The next witness was Grant Rob Leibrandt who worked for Extreme
Safety, which develops health and safety files and assist clients
in
complying with the occupational health and safety specifications for
construction. He is the owner of Extreme Safety and employed
four
people at that time, one of whom was Nurshin Naidoo. He was
paid by Titan to deliver a safety file and to look after
the safety
file and the employees. He also represented four principal
contractors and 13 subcontractors on the site.
His function was
to ensure that clients were compliant with safety regulations.
The safety files were made up and maintained
in accordance with the
requirements of the principal contractor. His staff also did
toolbox-talks, compiled registers, etc.
He was responsible for
certifying the background of the subcontractors and a monthly ongoing
audit was conducted by the principal
contractor. Without the
relevant documentation having been provided, no employees of
contractors would have been allowed
onto site, nor would they have
gone through the induction process. Mr Leibrandt did not do the
documentation in this case,
which was done by Nurshin Naidoo, because
he was on site. Any safety issues which arose would have been
taken up by Nurshin
Nadioo with Ms Richardson.
[33]
Thavalingan Naidoo (‘Daya’) then testified that he was
the safety manager for the project. His duty was to
ensure that
everything was safe at the airport construction site. He
remembered Ms Richardson who was employed as the safety
officer for
Group Five. Once a month a safety meeting was held and the
safety managers for all parties had to be at the meeting.
Daya’s main priority was to ensure that each contractor had
complied with his obligations to compile the safety file.
It
was his function to go through the file with contractors to ensure
that everything was in order. All employees had to
pass a
medical before going through the induction process. A card was
then made for each employee with their photograph on
it. Daya knew
that Extreme Safety was employed on the site and was responsible for
the safety requirements of a number of the contractors.
Daya
had been phoned and told about the fire, and he had given the person
he spoke to the ambulance numbers. No injuries,
however,
resulted from the fire. He did not inspect the fire and it was
sorted out by Ms Richardson.
[34]
The next witness was Nurshin Naidoo who was employed by Extreme
Safety as a health and safety officer at the time of the fire.
He had compiled the safety file for Titan and ensured that it was
updated from time to time as needed. He had kept a copy
of the
file and sent the original to the head of the construction site.
The file was a ‘live file’ in the sense
that it was
continually updated. He knew both Riccardo Tripepi and Junior
Thompson, and was aware that Abraham Steel was
the subcontractor to
Titan. He also knew Keith Mathys who acted as liaison between
Abraham Steel and contractor. Mr
Naidoo attended on site
approximately three days’ a week and reported to Ms Richardson
who ran the site. All aspects
of safety on the site were
referred to her. No one was allowed onto the site without her
permission.
[35]
Mr Naidoo clearly had only a vague recollection of the incident
because when shown the photographs of the two machines which
were
contained in exhibit “B”, he said that he was not sure
why there were two machines in the photographs. He
had been
told by Ms Richardson on the Friday that an incident had occurred.
He would have to have obtained an incident report
from the safety
officer on the site.
[36]
Mr Naidoo maintained that on the Friday, the snow netting was in
place as it is depicted in the photographs in exhibit “B”.
He had been informed by Ms Richardson that it was safe to continue
with the hotworks. However, Mr Naidoo was unable to recall
whether the whole area had been cordoned-off. He maintained
that they would not have continued to work in the area had Ms
Richardson not said that it was safe to do so. Mr Naidoo had no
knowledge of the fire on the Saturday, and he was only told
about it
on the Monday. He could not remember about the meeting which
was held on Tuesday the 20
th
April 2010 regarding the fire.
[37]
Mr Naidoo said in cross-examination that he was aware on the Friday
that a substance had been used to mop up the spilled diesel,
and he
could see it around the platform hoist. He said that Ms
Richardson had said they could only work inside the area cordoned-off
by the snow netting with her authorisation, and he was not aware that
that was ever given. He stated that if he had been
aware of the
fact that hotworks would be done in the vicinity of the platform
hoist, he would most definitely have stopped the
works. This
was particularly so because of the material lying around which was
soaked in diesel. That was the case
for the defendant.
[38]
At the end of all the evidence the following had been established:
(a) Eazi Access was the
owner of the platform hoist.
(b) Eazi Access hired the
platform hoist out to the principal contractor.
(c) The principal
contractor made the platform hoist available to Titan to use in
performing hotworks above ground level in the
warehouse.
(d) Titan’s
subcontractor Abraham Steel performed the hotworks using the platform
hoist.
(e) Titan was the only
contractor performing hotworks in the warehouse.
(f) Titan’s
subcontractor worked under the direct supervision of Junior Thompson,
who worked on the site with the Titan team
from 7:00am each until the
end of business each day. In addition Mr Tripepi, as the controlling
mind of Titan, was involved in
the oversight and supervision of the
work being performed by Titan.
(g) Titan hired Extreme
Safety to perform the functions of a full-time safety officer on the
site.
(h) The hotworks being
performed consisted of grinding, welding and cutting metal. The
welding was performed at a height well above
ground level whilst the
cutting was performed at ground level.
(i) On Thursday the 15
th
of April 2010 a minor fire occurred on the platform hoist causing the
diesel fuel line to be breached. This fire started as a result
of an
electrical shortage on the platform hoist.
(j) The minor fire was
extinguished and Drizit, an environmental company, was called out to
deal with the diesel spill.
(k) Drizit used an
absorbent material (probably peat-moss) to soak up the diesel.
Some of the diesel-soaked material was removed
from the site and
replaced with other absorbent material to soak up any leakage or
remaining diesel on the floor of the warehouse.
Absorbent
material, contaminated to some extent with diesel, was left under the
platform hoist to ensure that any further leakage
would be
contained.
(l) The area around the
platform hoist was cordoned-off using snow netting.
(m) The hotworks
continued being carried out by Titan.
(n) On Saturday the 17
th
April 2010, and whilst Titan was performing hotworks in the vicinity
of the platform hoist, the absorbent material beneath it ignited
and
caused a fire, resulting in extensive damage to the platform hoist,
rendering it irreparable.
(o) The hotworks, being
performed at the time of the fire took place in one of two areas:
(i) On the ground near
the snow netting; or
(ii) Above the level of
the platform hoist, and near to it, or directly above it.
(p)
The
uncontested evidence of the forensic investigator and fire engineer
was that diesel soaked into an absorbent material would
almost
certainly cause a fire if welding sparks (with a temperature of
1200-1500ºC) or molten metal globules (with a temperature
of
approximately 1500ºC) came into contact with the absorbent
material.
(q)
The safe
working distance for hotworks from the absorbent material would have
been the minimum of 10 metres (or 33 feet) and the
higher up the work
was being done, the greater would have been the trajectory for flying
sparks or molten metal globules.
The distance between the two
machines was no more than four metres.
(r)
Sparks and
hot metal globules are well recognised risks of welding and are
covered in the training of welders.
(s)
Welders
would be aware of the necessary fire prevention methods, for example
fire blankets, a fire watch with fire extinguishers,
etc.
(t)
It would
have been unsafe to allow hotworks to be carried out in the vicinity
of the diesel-soaked absorbent material.
(u)
No one
actually witnessed the fire start, but the overwhelming probabilities
are that it was caused by a spark or metal globule
emanating from the
hotworks being carried out by Titan.
[39]
Mr
Ungerer
eschewed any reliance on the vicarious liability of
the subcontractors of Titan. He submitted that it is the direct
conduct of the
employees of Titan that attracted liability. He
referred to
Langley Fox Building Partnership (Pty) Ltd vs De
Valence
1991 (1) SA 1
(A), where Goldstone AJA reiterated the
three broad questions which have to be asked in deciding whether a
legal duty arose on
the part of Titan. At 12H-13C, he stated:
‘
I
n
my opinion, it follows from the aforegoing that in a case such as the
present, there are three broad questions which must be asked,
viz:
(1)
would
a reasonable man would have foreseen the risk of danger in
consequence of the work he employed the contractor to perform?
If so,
(2)
would
a reasonable man have taken steps to guard against the danger? If so,
(3)
were
such steps duly taken in the case in question?
Only
where the answer to the first two questions is in the affirmative
does a legal duty arise, the failure to comply with which
can form
the basis of liability.
…
It
follows from the aforegoing that the existence of a duty upon an
employer of an independent contractor to take steps to prevent
harm
to members of the public will depend in each case upon the facts. It
would be relevant to consider the nature of the danger;
the context
in which the danger may arise; the degree of expertise available to
the employer and the independent contractor respectively;
and the
means available to the employer to avert the danger. This list
is in no way intended to be comprehensive. It
does follow,
however, that the duty of an owner of premises such as the present
may not be the same as that of the building contractor
employed by
him to do the work. That question, too, must be answered with
due regard to the facts.’
[40]
Mr
Ungerer
submitted
that his case was based upon the direct liability of the employees of
Titan – ie Mr Tripepi and Junior Thompson
– and their
roles in supervising and controlling the work which was done by
Abraham Steel. He referred to the evidence
of Mr Tripepi who
testified that Junior Thompson was his site supervisor controlling
the site subcontractors. He was present
on site from 7:00am to
close of business every day. Mr Tripepi also testified that he
was continually in and around the Trade
Port area, and he conceded in
cross-examination that he and Junior Thompson had control of the
hotworks. Although he had not seen
Abraham Steel performing hotworks
above the platform hoist, he knew that they were required to do so,
and would do so.
[41]
Mr
Ungerer
pointed
out that Mr Tripepi said that he knew about the hotworks to be done,
and he knew about the diesel and absorbant material
underneath the
platform hoist. It was clear from the evidence of Mr Janse van
Rensburg, Ms Richardson and Mr Naidoo that
Titan could not carry out
any works in the barricaded area. There is no suggestion that
they were working inside the barricaded
area, but were close to it,
and that they did not take proper cognisance of the danger. Mr
Ungerer
pointed to the fact that Mr Tripepi testified that Titan was under
extreme pressure to finish the hotworks in the warehouse.
He
referred to the statutory regulations for welding and the fire
precautions to be taken on a construction site. The regulations
had been applicable since 1986 and had only being repealed in
February 2014. He submitted that there was a clear failure
to
adhere to the regulations because no fire-watch had been appointed,
no fire blanket was used to protect the platform hoist,
and the
overwhelming probabilities were that Abraham Steel was carrying out
hotworks within the 10 metre perimeter referred to
by the fire
expert. In all the circumstances, Titan clearly owed a legal
duty to any persons or property in the vicinity
of the hotworks.
The employees of Titan negligently allowed the hotworks to continue
in the vicinity of the platform hoist,
without taking steps to ensure
that harm was not occasioned.
[42]
Mr
Alberts
submitted that Ms Richardson was the final arbiter
of whether the hotworks could be carried out in the warehouse.
He conceded
that it was not his submission that she had given a
blanket pass to Titan, but that Titan was entitled to accept that the
area
was safe. This obviously did not include the cordoned off
area. He submitted that that permission entitled Titan to
do
hotworks up to the snow netting surrounding the platform hoist.
No restriction was given as to how close to the cordoned
off area the
hotworks could continue. He submitted that the welders
themselves could take comfort from the fact that absorbent
material
had been used to absorb the diesel. Mr
Alberts
further
submitted that:
(a) No duty of care had
been pleaded by Eazi Access;
(b) No wrongfulness had
been demonstrated on the part of Titan;
(c) Any duty which Titan
owed was to the principal contractor only. The manner in which Titan
operated the platform hoist had nothing
to do with Eazi Access.
The only legal duty born by Titan was to the person bearing the risk
in the machine, and that was
the principal contractor. In this
regard Mr
Alberts
referred to para 6 of the Hire Agreement
between Eazi Access and the principal contractor, in terms of which
risk was defined;
(d) For Titan to be held
liable it was necessary for Eazi Access to have demonstrated personal
liability on the part of Titan’s
employees, and not the
subcontractors. This had not been done; and
(e) No negligence had
been proved on the part of Titan.
[43]
The pleadings of Eazi Access record in two paragraphs that the
incident occurred as a result of the negligence of Titan’s
employees. It is correct, as stated by Mr
Alberts
,
that no duty of care (or legal duty) has been pleaded. However, the
grounds of negligence are sufficiently pleaded to enable a
clear
inference to be drawn that the employees of Titan owed a legal duty
to Eazi Access to perform the hotworks so that no person
or property
was harmed. Where the legal duty is created by a source of potential
harm introduced by the defendant, then pleading
a specific legal duty
may be unnecessary where the negligence is pleaded.
[44]
Mr
Alberts
also submitted that wrongfulness had not been
established, and the question of causation should first be
considered. He relied
on the analogous situation of first considering
negligence, before deciding whether a legal duty existed.
See:
Gouda
Boerdery Bpk v Transnet Ltd
2005
(5) SA 490
(SCA).
[45]
In
Karlien van Vuuren v eThekwini Municipality
2018 (1) SA 189
(SCA) para 16 Navsa ADP, in dealing with a legal duty, referred to
Hawekwa Youth Camp & another v Byrne
2010 (6) SA 83
(SCA)
para 22:
‘
(N)egligent
conduct which manifests itself in the form of a positive act causing
physical harm to the property or person of another
is prima facie
wrongful. By contrast, negligent conduct in the form of an omission
is not regarded as prima facie wrongful. Its
wrongfulness depends on
the existence of a legal duty. The imposition of this legal duty is a
matter of judicial determination,
involving criteria of public and
legal policy consistent with constitutional norms. In the result, a
negligent omission causing
loss will only be regarded as wrongful and
therefore actionable if public or legal policy considerations require
that such omission,
if negligent, should attract legal liability for
the resulting damages.’
Navsa
ADP then referred, at para 17, to
Le Roux & others v Dey
(Freedom of Expression Institute and Restorative Justice Centre
as
Amici Curiae
)
2011 (3) SA 274
(CC) para 122:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual
liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal
policy in accordance with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that, what is meant
by
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct, but
it concerns
the reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.’
[46]
Navsa ADP referred to the warning of Brand JA in
Haweka
against confusing the delictual elements of wrongfulness and
negligence and the appropriateness, depending upon the circumstances,
of first dealing with wrongfulness before considering negligence. In
this regard, Navsa ADP stated at para 20:
‘
As
to a legal duty arising where there is prior positive conduct the
following is to be noted:
‘‘
A
duty may arise when the defendant has by lawful prior positive
conduct (commissio) created a potential risk of harm to others.
If
the actor omits to take reasonable steps to prevent the risk from
materialising (omissio), the duty is breached.’’
‘
[47]
In the present matter, in carrying out the hotworks in the warehouse,
Titan created a potential risk of harm to others. The
danger was
patent. Public and legal policy would surely regard it as reasonable
to impose a legal duty on Titan to ensure that
no harm came to others
in its conduct of the hotworks. That this is clearly so is evidenced
by the statutory duties imposed upon
those who carry out such works.
Accordingly, I disagree that wrongfulness has not been established on
the part of Titan.
[48]
I do not accept the contention that Titan owed no duty to anyone
other than the principal contractor, simply because Titan
contracted
only with Group Five, who bore risk in and to the platform hoist in
terms of its contractual relationship with Eazi
Access. (The link
between the principal contractor, WBHO and Group Five was not
explained, but I assume that WBHO and Group Five
were part of the
Ilembe Joint Venture, the principal contractor. The exact identity of
the legal entity who bore the risk in and
to the platform hoist does
not matter for the purposes of this argument)
The
legal duty owed by Titan in performing the hotworks was to all or any
persons (or their property) who or which could have been
harmed by
the failure of Titan to safeguard against doing so. Eazi Access owned
the platform hoist.
[49]
In
Botha
v Rondalia Versekeringskorporasie van Suid-Afrika Bpk
[1978] 1 All SA 148
(T) Nestadt J recorded at 151 that:
‘
(i)
As
a general rule an owner of property has title to sue for damages
thereto under the
lex
Aquila
.
The principle of
res
perit domino
applies.
(ii)
Such owner’s right so to sue is (at least in the Transvaal)
unaffected by the fact that the property has been sold by
it on
hire-purchase even though the purchaser is contractually bound to
indemnify the owner for damage thereto.’
[50]
In similar circumstances, the concept of ownership and risk of
property was considered by Thring J, in
Lehmbeckers Transport
(Pty) Ltd & another v Rennies Finance (Pty) Ltd
[1994]
2 All SA 4
(C) where the learned judge stated:
‘
The
fact that an owner may enjoy a contractual claim for indemnification
or reimbursement against a third party is not, generally
speaking, a
bar to the owner’s claim for damages against the wrongdoer.’
In
my view, the submission of Mr
Alberts
is dealt with by the above authorities.
[51]
The submission that Eazi Access has not demonstrated that the
employees of Titan caused the damage, as opposed to the conduct
of
their sub-contractors, is countered by the following:
(a)
Mr Tripepi
accepted that he and Junior Thompson had control of the hotworks, and
although he did not see hotworks being performed
above the platform
hoist, he knew that it was being done.
(b)
Junior
Thompson was the site supervisor, who controlled the site via the
sub-contractors. He was on duty from 7.00am until work
finished each
day. The aspects of negligence listed in the particulars of claim
were all matters falling within the scope of proper
oversight and
control of the hotworks.
(c)
Mr Tripepi
knew that diesel was underneath the platform hoist, and had been
covered.
In
those circumstances either or both of Mr Tripepi and Junior Thompson
were negligent in allowing hotworks to continue in sufficiently
close
proximity to the platform hoist to be dangerous.
[52]
I record that there is nothing in the demeanour of any of the
witnesses which detracts from the conclusions at which I have
arrived. Nor does their failure to recall all the events –
ie Ms Richardson and Mr Janse van Rensburg – affect
the
result. I record that Mr Junior Thompson did not testify and no
reasons for that circumstance were advanced. If he could
have
advanced reasons negating the negligence of Titan, I would have
expected him to do so.
[53]
In all the circumstances I find that Titan is liable to pay to Eazi
Access whatever damages it is able to prove that it has
suffered as a
result of the damage to the platform hoist caused by the fire on the
17
th
April 2010. There is no reason why costs should not follow the
result.
[54]
I make the following order:
(a)
The second
defendant is liable to pay to the plaintiff whatever damages the
plaintiff may prove it has suffered as a result of the
fire damaging
its platform hoist on the 17
th
April 2010.
(b)
The second
defendant is directed to pay to the plaintiff the costs of the action
to date.
____________________
Lopes
J
Dates
of hearing: 12
th
March 2018.
Date
of Judgment: 12
th
April 2018.
Counsel
for the Plaintiff: Mr R G
Ungerer
(instructed by Cilliers &
Reynders Attorneys c/o Weber Attorneys).
Counsel
for the Second Defendant: Mr S M
Alberts
(instructed by JA
Lister &
Company).