Rennies Distribution Services (Pty) Ltd v Old Co-Fire Systems (Pty) Ltd (11896/2009) [2016] ZAKZDHC 25 (12 July 2016)

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[2016] ZAKZDHC 25
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Rennies Distribution Services (Pty) Ltd v Old Co-Fire Systems (Pty) Ltd (11896/2009) [2016] ZAKZDHC 25 (12 July 2016)

In
the High Court of South Africa
KwaZulu-Natal
Local Division, Durban
Case
No: 11896/2009
DATE:
12 JULY 2016
In
the matter between:
Rennies
Distribution Services (Pty)
Ltd
.....................................................................................
Plaintiff
And
Old
Co-Fire Control Systems (Pty)
Ltd
..................................................................................
Defendant
Judgment
Lopes
J
[1]
The plaintiff in this matter, Rennies Distribution Services (Pty) Ltd
(‘Rennies’), sues as the cessionary of a claim
for
damages which vested in Mondi Ltd.  The defendant is alleged to
have been responsible for the damages sustained by Mondi
Ltd as a
result of the defendant’s negligent installation of a water
pipe at 30 Paisley Road, Jacobs, KwaZulu-Natal (‘the

premises’).
[2]
During August 2006, the defendant, as a sub-contractor, installed a
water pipe in a warehouse at the premises.  The water
pipe was
intended to be a feeder pipe to an overhead sprinkler system in an
adjoining warehouse which was under construction.
The water
pipe ran across the length of the warehouse immediately below the
roof trusses.  It was secured to the roof trusses
by way of
G-clamps (‘jockey clamps’) which were screwed onto the
upper flange of the I-beam shaped trusses, and supported
by a
threaded rod on the end of which was a steel strap surrounding the
water pipe.  The water pipe was connected to the water
supply
under approximately five bars of pressure.  The pipe was laid in
lengths of approximately six metres each, and they
were connected
end-to-end by what are called ‘Klambon’ clamps (or joints
or fittings).
[3]
At about midnight on the 25
th
August 2006, the pipe broke apart resulting in thousands of litres of
water being released onto a consignment of paper stored in
the
warehouse, and which belonged to Mondi Ltd.  The resulting water
damage occasioned the damage suffered by Mondi for which
the
plaintiff sues in this action as cessionary.
[4]
At the time that the pipe failed, it had not yet been connected to
the sprinkler system which was being constructed in an adjoining

warehouse.  At that stage the  pipe ran across the width of
the warehouse and terminated in a flange at or near the adjoining

warehouse under construction.  The water pipe was, however,
under pressure.
[5]
I was required to determine, as a first issue, the cause of the
breakage of the pipe and whether the defendant was liable in
law for
the consequences thereof.  At the outset of the trial, I
accordingly made an order by consent between the parties,
and in
terms of Rule 33(4), separating the issues of quantum and liability,
with the issue of liability to be determined as a first
issue.
[6]
On the night of the incident, the personnel who were present at the
premises were three security guards employed by Protea Security

Services, one of whom was Brandon Singh, a senior security officer,
and another Valithum Adikanny (also known as Sagren).
Sagren
was employed as a forklift driver. His function was to load reels of
paper taken from the warehouse onto trucks belonging
to Springbok
Trucking Services, which would arrive from time to time to load the
paper, and take it to the Mondi mill on the KwaZulu-Natal
South
Coast.  The driver of the Springbok Trucking Services truck,
(‘the truck’) was also present.
[7]
The following witnesses gave evidence for the plaintiff:
(a)
Sagren, who was the only forklift driver on duty that night and who
was responsible for removing paper reels from the warehouse
and
loading them onto the truck;
(b)
Moonsamy Padayachee (also known as ‘Dan’), the driver
employed by Springbok Trucking Services who arrived at the
premises
some time before midnight in order to uplift a load of reels of
paper;
(c)
Rishi Sindulal, a security officer employed by Protea Security, who
was in charge of security on the site. He was called to
the site
after the water pipe failed;
(d)
Dayalan Moodley (also known as ‘Neville Moodley’), the
terminal manager at the site who was also called out to the
premises
after the water pipe failed;
(e)
Andrew Richard Osborn, a loss adjustor who inspected the premises
after the incident;
(f)
Jens Jakobsen, a fire protection consultant who advised Rennies as an
expert on the quality of the installation of the water
pipe;
(g)
the late Mr Gary Reabow, an engineer who investigated the cause of
the water pipe failing;
(h)
Professor Graham Smith, a professor in mechanical and civil
engineering at the University of KwaZulu-Natal.
[8]
It is perhaps easiest to deal with the evidence of the witnesses in
the order in which they were working on the premises.
[9]
Sagren Adikanny testified that he was employed by Afripack Packaging
as a materials handler, or fork-lift driver. At the time
of the
incident, he had been working for a labour broker at the Paisley Road
warehouse for approximately three years.  He
drove a forklift in
the warehouse loading trucks, and he moved reels of paper in and out
of the warehouse.  In order to do
so he drove different types of
what he referred to as ‘hysters’.  One was a roll
clamp hyster which was able to
lift reels of paper and could carry a
number of them on the front of the roll clamp.  He also drove
forklifts which were used
to lift pallets. (‘Forklifts’
and ‘hysters’ were referred to interchangeably throughout
the trial).
[10]
On the night in question he came on duty at approximately 7pm.
No other employee was working on the site doing what he
did.  He
was given a schedule of tasks, including to remove from the warehouse
a number of reels of paper which were due to
be loaded onto the truck
to be delivered to Mondi.  In preparation for the truck’s
arrival he removed a number of the
reels of paper from the warehouse
and stacked them in what he referred to as a ‘pre-marshalling
area’. He was driving
a four ton ‘short mast’
roll-clamp machine, which was used when it was necessary to be able
to remove reels of paper
from a container.
[11]
Sagren had not yet completed the task of taking the reels of paper to
the pre-marshalling area when the truck driven by Dan
Padayachee
arrived.  Sagren waited for Dan Padayachee to open the tarpaulin
and then started loading the reels onto the truck
from the
pre-marshalling area. At that stage he still had to uplift more reels
from the inside of the warehouse.
[12]
Whilst Sagren was loading the truck in the pre-marshalling area, he
heard a loud bang.  He switched off his hyster and
walked
towards the warehouse.  As he got to the entrance he saw water
gushing out under force from the water pipe approximately
five metres
from the entrance to the warehouse and above him and to the left.
At that stage Dan Padayachee was standing in
the vicinity of the
entrance to the warehouse and the security guards arrived.  The
water was gushing out onto the reels of
paper and spreading across
the floor of the warehouse.  Sagren was emphatic in his evidence
that at no stage was he, or the
equipment he was using, in the
vicinity of the water pipe at the time that it broke.  Neither
he nor his equipment became
wet as a result of the broken water pipe.
[13]
Sagren testified that when it was necessary for him to remove a roll
of paper from the stack, he would drive into the warehouse,
use the
mechanism on the front of the roll clap to lift the reel of paper
onto the mast and then he would reverse the roll clamp
out of the
warehouse to the pre-marshalling area.  Because of the height of
the reels of paper loaded onto the front of the
roll clamp, it was
not possible to see past them if trying to drive forward, and that
was why the drivers reversed out of the stack
once they had loaded
the reels of paper onto the roll clamp.  Sagren maintained that
a ‘short mast’ roll clamp
did not allow for as many reels
to be stacked on the front of it as did a ‘high mast’
roll clamp. He also said that
the level at which the pipe was hanging
was above the level of the top of the roller door entrance to the
warehouse.
[14]
Sagren also testified that his practice was that, when lifting a reel
of paper, the lowest reel would be carried approximately
30 to 40
millimetres from the ground.  The purpose in so doing was that
if anything happened whilst the load was being carried,
it was close
to the ground and less likely to incur edge damage if it fell from
the roll clamp.  A further reason why that
method of operation
used was to carry the reel of paper close to the ground was because
if it was carried high up in the mast,
it would unbalance the
machine.  This could result in the machine toppling over and
there was the possibility of injury to
personnel.
[15]
When he saw the water pouring out of the broken water pipe, Sagren
and the security guards on the premises endeavoured to find
the shut
off valve.  He also went to the office to telephone Neville
Moodley and Devon Naidoo who were more senior employees
in the
management of the site.  The fire-brigade arrived a short while
later, and the water was shut-off. Sagren could not
remember who had
done so.
[16]
It was suggested to Sagren in cross-examination that the cause of the
pipe breaking is that it was struck by a hyster and/or
a reel of
paper on a hyster as it proceeded towards the door of the warehouse.
Sagren was adamant that at no stage on the
night in question did any
equipment which he was driving, or of which he was in control, knock
into the pipe or collide with it.
He said that if his hyster
had collided with anything, he would have been aware of it because he
would have felt the bump.
He also said that if he had collided
with the pipe he would have been soaked and that was not the case.
As a further factor
negating the possibility of his having damaged
the pipe, Sagren said that he was loading in the pre-marshalling area
when the pipe
failed. He also pointed out that the area where he was
working to carry reels of paper from the warehouse to the
pre-marshalling
area was nowhere near the area where the pipe broke.
Sagren also denied the suggestion that one Douglas, a fellow forklift

driver was on duty that night.  He was supposed to have arrived
for work but did not do so.
[17]
Moonsamy Padayachee (also known as ‘Dan’) testified that
he was self- employed, running a pest-control company.
He had
previously been a driver for Springbok Trucking Services and had
arrived at the premises on the night in question and parked
the truck
in the loading area.  He said that at that stage Sagren was
still fetching paper reels from the warehouse and bringing
them out
to stack them for loading onto his truck. The reels which were
already stacked outside the warehouse when the truck arrived
were
loaded first. Thereafter Sagren fetched the balance from the
warehouse. Mr Padayachee  testified that he was standing
near to
the entrance of the warehouse doorway, and did so because he wanted
to check the reels as they came out of the warehouse
for edge
damage.  Whilst standing there he heard what he described as an
explosion and saw the broken water pipe to his left
approximately
twelve metres away.  He said although the water was coming out
at force he did not get wet because he stepped
away.  He said
that at that time the hyster driven by Sagren was nowhere near him
and not in his field of vision.  He
said if it had been there he
would have seen it.
[18]
Rishi Sindulal was, at the time of the incident, employed by Protea
Security and responsible for security at the site.
He said that
at the time of the incident the site senior, Brandon Singh, was
present on the premises together with two security
guards controlling
access to the site, and one roving security guard.  He was
phoned by Brandon Singh and told a pipe had
burst.  This was
somewhere between midnight and 1am, and he had been sleeping when he
got the call.  Mr Sindulal said
that it took him approximately
half an hour to get to the site where he saw the truck and the fire
department present.  The
water was gushing out of the broken
pipe.
[19]
He tried to assist the fire department in searching for the shut-off
valve, and eventually they had to contact the Ethekwini
Municipality
water department who came and shut off the valve.  At the stage
that he arrived at the site and was making initial
investigations
there was no suggestion that the pipe had been struck by the roll
clamp or its cargo.  He said that neither
Sagren, nor his
machine, nor the security officers showed any sign of having become
wet from the incident.  Sagren had told
him that at the time of
the incident he was nowhere near the water pipe which broke.  He
was in a different section of the
warehouse approximately 100 to 150
metres away.
[20]
Dayalan Moodley (also known as ‘Neville Moodley’)
testified that he was self- employed, running a logistics company.
He
had worked for Rennies at the time of the incident as terminal
manager at the site.  The premises were owned by J T Ross
&
Co and Rennies leased the premises from them.  The warehouse was
used for the storage of paper for Mondi Ltd and consisted
mostly of
what was referred to as ‘cutter reels’ which were cut up
into A4 size paper sheets.  The paper reels
were described as
WIP or ‘work in progress’ reels.
[21]
Mr Moodley confirmed that at the time of the incident Sagren was
employed there via a labour broker, and that on the night
in question
he had worked on his own at the site as the storeroom operator.
At approximately midnight Mr Moodley received
a phone call from
Sagren and he went to the site which was approximately nine
kilometres away.  It took him approximately
ten to fifteen
minutes to get to the site.  When he got there he saw the
security guards and Sagren running around looking
for the shut-off
valve to stop the water coming out of the water pipe.  He phoned
the fire brigade at 12.17pm, a few minutes
after arriving.
[22]
The fire brigade arrived approximately ten minutes later, but were
also unable to locate the shut-off valve.  Eventually
the
Ethekwini Municipality water department was contacted to do so.
Whilst at the scene Mr Moodley made a cellphone video
of the water
emerging from the water pipe.  The water was coming out at force
and falling onto the reels of paper in the warehouse.
He said
that neither Sagren nor his machine were wet and if they were he
would have noticed.  He had been told by Sagren,
the truck
driver, and the security guard that they were outside the warehouse
when the pipe failed. Sagren was ready to load from
the
pre-marshalling area when they heard a bang and went to investigate.
The cutter reels which were being loaded onto the
truck were located
on the far side of the warehouse.
[23]
In cross-examination Mr Moodley said that he did not see any portion
of the pipe which had fallen onto the floor of the warehouse.

He could not recall that a section of the pipe had broken off and
fallen onto the floor.  He repeated that the pipe had split,
and
both sides of it were still hanging in the hangers. When asked why he
had taken note of whether Sagren or his equipment was
wet, he said
that it had been part of his investigation to determine what had
caused the incident.  He expressed it as being
part of the
protocol to understand whether the hyster had been involved in the
damage or whether it had been a maintenance issue.
He said
Sagren had been the only employee on the premises.  Mr Moodley
further said in cross-examination that no reels of
paper had been
taken from that side of the warehouse.
[24]
Andrew Richard Osborn testified that he was a loss adjustor in the
employ of Cunningham-Lindsay, and his firm was asked to
investigate
the circumstances of the burst pipe.  Another employee of the
loss adjustors, Craig Smith, had visited the site
on Saturday 26
th
August together with the risk manager of Rennies, one Ms Ingle.
On the Monday Mr Osborn was asked to assist as manager of
the region
and the most senior loss adjustor.  He familiarised himself with
the layout of the premises and inspected the water
pipe and reels of
paper, and asked to speak to the employees who were present on the
evening in question.  He spoke to Sagren
because he had
suspected that the forklift driver had knocked into the pipe causing
it to break.  Having questioned Sagren,
he accepted his
explanation and focussed on the pipes and the manner in which they
were secured.  He described the manner
in which they were
secured as setting off ‘alarm bells’, because the pipes
were not secured where he would have expected
them to be.  He
measured the pipes which were approximately six metres long and said
that he would have expected them to be
secured close to either end
and not predominantly in the middle.  He said that most of the
hangers which supported the pipe
below the roof trusses were
allocated in the middle of each length of pipe rather than towards
the ends.  He then contacted
Gary Reabow to assist in the
investigation.  He said that he did not see the missing section
of pipe.
[25]
Jens Jakobsen testified that he was a fire protection consultant who
travelled throughout Africa checking on auto sprinkler
fire
protection installations.  His primary task was to ensure
compliance with the regulations and good business practice
for fire
prevention, and dealing with it when it occurred.  He said that
there were two systems in existence,  the ASIB
rules (Automatic
Sprinkler Bureau (Pty) Ltd) and the SABS rules (the South African
Bureau of Standards).  Either was regarded
as acceptable to
insurers of premises at which sprinkler systems were installed,
provided that the installation was in accordance
with those rules.
[26]
Mr Jakobsen testified that if correctly designed and installed,
sprinkler systems had a very high reliability, with a very
low
probability of failure.  Once a system was installed, it would
be approved by the building control officer, and the recorded

certification on the plans would be accepted as being ‘To ASIB’
requirements.  A properly installed and certified
sprinkler
system would lead to insurance rebates.  The National Building
Regulations referred to the SABS regulations, with
regard to the
installation of sprinkler systems, but it appears that those rules
are interchangeable with the ASIB rules.
Mr Jakobsen said that
the rules had originated from fire laboratories in the United Kingdom
and the United State of America where
extensive testing had been done
for every kind of product, and that the findings were encapsulated in
the rules.
[27]
The type of sprinkler system depended on how much water was needed,
under what pressure, and for how long to prevent and/or
extinguish a
fire.  He stated that adherence to the rules was very important
because an independent determination of the necessary
aspects of a
sprinkler system was very difficult and expensive to determine on the
site.  He said that industry would go to
the extent of changing
a building if it was unsuitable for the application of the ASIB
rules.  He said that the importance
of the ASIB system was that
it worked well because all the elements of the system are included in
it.  The rules are regarded
as having a standing in good science
and engineering in the industry.  Any person doing an
installation in accordance with
the ASIB rules had to be trained and
certified by ASIB.  ASIB laid down regulations governing the
quality of materials and
installation.  There was also a process
for ASIB certification at the end of the installation.
[28]
Mr Jakobsen said the fact that there had been no certification at the
time of the incident was not unusual because the installation
had
been done very recently prior to the failure, and it was not unusual
for verification to be done after the warehouse was being
used.
In his view, and according to the report of the late Mr Gary Reabow,
the spacing of the piping supports was not in
accordance with the
tenth edition of the ASIB rules.
[29]
The late Mr Gary Reabow then testified that he was an engineer who
was asked to investigate the failure of the pipe.
Prior to
proceeding to a site inspection, he was told that the pipe had
collapsed because it had been hit by a forklift truck.
After
viewing the pipe and the factory itself, he came to the conclusion
that a forklift truck could not have struck the pipe.
Mr Reabow
examined the coupling which had parted when the pipe collapsed, and
came to the conclusion that a lug on the Klambon
clamp which was
evidently bent, had been bent when the pipe fell and struck the
ground.  In his view a significant force would
have been
required to dislodge the clamps and cause the pipe to collapse.
He could find no significant damage on the pipe
indicating that it
had been struck by a forklift truck.  In saying this, he
conceded that a paper reel may have struck the
pipe, which paper reel
was being conveyed by a forklift.
[30]
Not satisfied that the forklift truck had caused the collapse of the
pipe, Mr Reabow examined the clamps and the method of
suspension.
He was struck by the fact that there was only one suspension point
per pipe on average.  On his visit to
the site he had found two
damaged malleable cast-iron jockey clamps on the floor.  They
had both sheared off.  At first
he suspected that a clamp may
have fractured because of a flaw in the casting.  However, he
had changed his view on finding
the second fractured jockey clamp.
[31]
Mr Reabow  concluded that because of the manner in which the
clamp was fastened onto the roof truss, the piping would
have had to
have been hit from the end and could not have been struck from the
side (as it would have been had it been struck by
a forklift).
However, when considering an ‘end-on’ strike, he
concluded that there was simply no room for a forklift
truck to have
been able to strike the piping on the end of it.  Mr Reabow
accordingly reverted to looking at the jockey clamps
and hangers and
looking for indications on the pipe in order to ascertain the cause
of the failure.
[32]
Eventually Mr Reabow decided that he had to go back to the conclusion
that a hanger had failed.  The drawing from which
the contractor
had installed the equipment indicated that one hanger per roof truss
should be installed. Mr Reabow was of the view
that each pipe
section, together with the water contained therein and the couplings
joining them, would have the weight of approximately
355 kilograms.
[33]
Mr Reabow had telephoned the suppliers of Electromould, the
manufacturers of one of the jockey clamps which were used in the

construction, and he was told that those jockey clamps had never been
tested to determine the loan at which they would fail.
The safe
load capability of the O-line and Cabstrut jockey clamps were 310
kilograms.  He viewed any difference in the Electromould
jockey
clamp because of its slightly thinner material, as being negligible.
In his view the jockey clamps were overloaded
by approximately 50
kilograms per length of pipe.  The overload would have been the
difference between 360 to 400 kilograms
less the safe load of 310 to
316 kilograms.
[34]
Mr Reabow was also of the view that the pipe ran in a straight line
across the warehouse, and at the end of the warehouse there
was a 90
degree joint, a short length of pipe and another 90 degree joint to
enable the pipe to feed through the wall at the end
of the warehouse
and into the next building.  He opined that if a sling holding
the bends had adjusted itself that would have
transferred a load down
the pipe to one of the other joints.  His view was that as the
pipe bends, the pressure of the water
inside the pipe would attempt
to straighten the pipe out.  For that reason wherever a pipe did
a ninety degree turn, it should
have been braced.  This was
according to Klambon, the manufacturer of the couplings which
connected the various lengths of
pipe.  Mr Reabow could not find
any guides or restraints or anchors securing the bends in the pipe.
Mr Reabow was of
the view that the incorrect hanging of the pipes,
together with the lack of support on the bends and the fact that the
supports
themselves were not strong enough to support the load
contributed to the failure and collapse of the pipe.  He was
unable
to say whether any one of them would have had that effect or
whether they all had that effect.  His view was that no-one
would
ever know.  He simply regarded them as having been poorly
installed.
[35]
Mr Reabow was of the view that the jockey clamps which were fixed to
the upper flange of the trusses did not contribute to
the failure of
the pipe.  This was despite the fact that they were fixed to
trusses which were sloped at approximately eleven
degrees.  He
saw this as undesirable, but did not think it had contributed to the
failure.
[36]
Mr Reabow was also of the view that the manufacturers of the jockey
clamps had recommended the installation of a safety strap.
That
would have prevented the clamps from sliding off the roof trusses to
which they were bolted.  Mr Reabow was told by the
contractors
that they were never used and were not available in South Africa.
Mr Reabow thought there was a possibility that
the movement of the
main pipe could have been contained had the additional safety straps
been used by the contractor in installation.
Mr Reabow
expressed the view that there were so many factors involved that the
possibility of an accumulation of all of them could
have been the
cause of the pipe coming down.
[37]
Mr Reabow described how the Klambon clamps worked.  There was a
groove at the end of each pipe with a rubber ring in the
groove.
The clamp is in two halves and bolted down onto the groove.  If
fitted correctly there was very little possibility
that the joints
could come apart under pressure.  However, if a clamp was skewed
across a groove it would not have the strength
which it should have.
He regarded that as another possibility of failure, which he had
discounted because he could not find
any leaks having taken place,
and there had been no reports of any leaks prior to the failure.
Had the clamps not been correctly
installed, he would have expected
leakage to have taken place over the time during which the pipe was
installed, which was about
five days prior to the failure.  Mr
Reabow also drew attention to the fact that when new pipes were
re-installed after the
failure, two suspension points were used per
section of pipe, instead of the one which had been previously used.
[38]
Mr Reabow was also of the view that the installation had been
incorrectly done because the height of the pipe was below the
level
of the top of the doorway.  When told that that was in
contradiction to what the other witnesses had said, he recalled
that
he had not measured the height of the pipe and the height of the
doorway but it was merely a visual assessment he had done.
In
addition, the screws on the jockey clamps had not been torqued, as
required by the manufacturers.  He accepted that a contractor

without a torque wrench could get the same effect by finger
tightening the screw and then using a spanner to make a further
one-quarter
tightening turn.
[39]
Mr Reabow was referred to the opinion of Dr Bemont who suggested that
score marks on the underside of the roof trusses
were
suggestive of the fact that a forklift, or a paper reel on a forklift
had struck the pipe causing it to ride up against the
underside of
the truss and score the truss, leaving the marks shown on the
photographs.  Mr Reabow was unable to replicate
the movement of
the pipe against the truss but was of the view that because of the
deformation of the threaded rods and set screws,
it was not
consistent with the pipe being hit from the side as contended for by
the defendant.
[40]
In cross-examination Mr Reabow conceded that the bent lug on the
Klambon clamp may have been bent in any of a number of ways.
Mr
Reabow stated that he remained convinced that he could not find any
damage on the jockey clamps consistent with the pipe having
been
struck by a forklift, or a paper load.  He conceded that there
was a possibility that the pipe had been struck from the
side, but he
regarded that as improbable.  It was put to Mr Reabow that Mr
Hlongwane would testify that when he had replaced
the pipe, he had
seen a 200mm score mark (made by the screw of a jockey clamp) on the
top of a roof truss. The suggestion made
to Mr Reabow was that such a
mark would be consistent with the pipe moving towards the door of the
warehouse after being struck
by something.  Mr Reabow again said
that it was possible, but he thought it was improbable.  He
stated that he would
have expected there to have been a mark both on
the top of the roof truss and on the surface of the underside of the
top of the
roof truss.
[41]
Mr Reabow confirmed that he had discounted the fact that the pipe had
been hit from the end of it with longitudinal forces
along the length
of the pipe causing the failure, because there was insufficient room
for that to have occurred.  Mr Reabow
conceded that the pipe
could have failed because of the Klambon coupling failing.  Mr
Reabow also appeared to agree with the
suggestion of Mr Bemont in his
expert summary that the pipe would have needed more than two hanger
systems to fail to cause it
to collapse, because of the strength of
the Klambon fittings.
[42]
Mr Reabow was cross-examined on what he would have considered the
contribution of vibration to have been in the overall collapse
of the
pipe.  In his view vibration was unlikely to have been the
factor causing the pipe to collapse. Mr Reabow stated that
there
would be no additional force acting on the pipe at the point at which
it failed, which came from the water itself contained
in the pipe.
His view was that if the pipe was intact there would have been no
force on the pipe at the point of failure.
[43]
Mr Reabow was asked about the possibility of a failure in stages i.e.
if the forklift or its load had struck the pipe sometime
before, and
a reaction took place very slowly which eventually ended in the
failure of the pipe.  Mr Reabow thought it was
improbable that
that could happen because of the type of clamps used to join the
pipes and the rigidity of the joints.  Once
the couplings are
tightened down on the joints, they are rigidly fixed in the grooves
at the end of the pipes.  It would have
taken a significant blow
to cause the pipe to part.  Mr Reabow did not think it was
possible to have an impact that did not
fracture the pipe immediately
but caused a change in the integrity of the pipe so that the pressure
inside it became different
and it caused the pipe to fracture at a
later stage.
[44]
By agreement between the parties, the evidence of Mr Hlongwane was
interposed by the defendant.  Mr Hlongwane worked for
the
defendant during 2006 and was a fitter and supervisor of the crew
that installed the pipe.  Eight workers in total were
involved
in installing the pipe.  Mr Hlongwane had twenty-five years’
experience in installing pipes and had attended
training during 1996
in installing Klambon fittings.  He stated that when fitting a
Klambon fitting, they would firstly smear
grease on the rubber ring
on the end of the pipe as well as on the Klambon fitting.  The
nut would then be finger-tightened
together with a spanner tightening
thereafter.
[45]
Mr Hlongwane then testified that when fastening the jockey clamps to
the top flange of the roof trusses, the bolts would be

finger-tightened and then tightened with a one-quarter spanner
tightening, made in three short movements.
[46]
Mr Hlongwane also stated that he had attended the site on the Monday
after the collapse of the pipe.  He had been instructed
to take
the parts of the pipe that had fallen to the ground outside, and
thereafter to strip the remaining pipe from the roof trusses
and
re-install them in a different position.  He stated that in
removing the jockey clamps from the roof trusses he had found
one
where the bolt of a jockey clamp caused a scratch of about 200
millimetres following the line as the jockey clamp was forced
out of
its position.  The scratch was on both sides of the top flange
of the I-beam.  The scratch on the top of the roof
truss was
deeper than the one on the underside of the roof truss which had only
removed paintwork.  After the installation
of the pipe and until
the time it failed, there had not been any leaks in the pipeline.
Mr Hlongwane said he knew this because
he had worked on the site for
the five days after the pipe had been installed.
[47]
In cross-examination Mr Hlongwane conceded that there had been
another supervisor on the site, by the name of Terry.
He also
checked on the work and supervised to see that everything was
properly done.  Mr Hlongwane testified that each section
of pipe
was pulled up to the trusses independently and then secured by two
jockey clamps.  The next section of pipe would
then be pulled up
and joined to the secured pipe.  He and one Eric Buthelezi had
been responsible for fitting the Klambon
joints.  He also said
that he checked that all the lock nuts were ‘well tight’
so that there would be no danger
when he filled the pipe with water.
He confirmed that he did not install the jockey clamp safety strap to
ensure that the
jockey clamps were secured to the roof trusses.
[48]
Mr Hlongwane stated that he had been responsible for pressurising the
pipe.  It appeared that this had been done to 100
kPa pressure.
When he had attended the site on the Monday he had, in addition to
seeing the score mark on the roof truss,
seen that one of the hanging
rods from a jockey clamp was bent.  He had found this lying on
the floor of the warehouse.
The pipes were hung so that the
distance between the underneath of the roof truss and the centre of
the pipe was 150 millimetres.
He also told the court that when
the pipe was erected in place, it hung at a level which was higher
than the top of the doorway
into the warehouse.  When the
hangers had been put into place, that was done in accordance with the
diagrams which the construction
crew had been given.  Mr
Hlongwane stated that although a pipe of two metres may have two
hangers, depending on the position
of the roof truss, the second pipe
might not have two hangers – this depended entirely how far
along the I-beam the pipe
was hanging.
[49]
The matter was then adjourned on the 13
th
March 2014 to enable the plaintiff to deliver an expert notice in
respect of Professor Smith, and was only set down for the
continuation
of the hearing from the 6
th
June 2016. Professor Graham Douglas James Smith then testified for
the plaintiff.  He told the court that he was both a mechanical

and civil engineer employed by the University of Kwa-Zulu Natal.
He was present when Mr Reabow testified, and he recorded
that he had
not agreed with what Mr Reabow had said about the forces exerted on
the pipe by the water inside it.  He told
the court that the
pipe was pressurised by the mains pressure of the Municipal water
mains and that would ensure an even pressure
in the pipe, placing it
under tension and that all components in the pipe – the flanges
and bolts, etc would receive the
same pressure.  This would
result in a stretching force on the entire pipeline along its
length.  Because the pipe had
a flat plate closure at the end of
it, the force generated by the pressure within the pipe would lead to
an axial stretching force
in the vicinity of fifteen k/Newtons.
The axial stretching force is the force parallel to the length of the
pipe which would,
if cut at any part along its length, be parted by
that exact force.  The pressure from the water mains would be
approximately
4.9 bars.
[50]
Professor Smith regarded it as improbable that a bump against the
pipe could take time to cause the pipe to fail.  Professor
Smith
stated that if the pipe was 100 per cent full of water any breach in
the pipe would see it move apart for a small distance.
If,
however, air was in the system, the air would act like a spring
because it would be compressed and would expand when it was

released.  It was the expansion of the air that would cause a
greater reaction than if there was only water in the pipe.
[51]
Professor Smith said that he believed that the failure of a jockey
clamp occurred, which contributed to the failure of the
pipe.
He said that if a locknut was loose, and the screw attaching the
jockey clamp to the roof truss was tightened, two
things could
happen:
(a)
the thread of the jockey clamp screw could strip, but there had been
no evidence of that in this case;
(b)
the tightening of the clamping screw would open the mouth of the
clamp which would cause an additive load – i.e. the load
of the
pipe together with the water of approximately 305 kilograms and the
tightening load.  The jockey clamp would now be
stressed above
355 kilograms.
[52]
Professor Smith regarded a forklift strike as possible, but
unlikely.  He regarded the probable cause of the distortion
to
the Klambon clamp lug testified to by Mr Reabow as being the result
of it falling onto the floor.
[53]
Professor Smith then referred to the two white marks and the red
smudge on the edge of the roof truss which was depicted in
figure 28
of Dr Bemont’s report.  In his view these marks were
consistent with a movement of the pipe in contact with
the roof truss
in a direction which was parallel to the length of the pipe and not
at right angles to it, as it would be if the
pipe had been struck by
a forklift or a paper reel carried on a forklift.  His view was
that under the violent fifteen k/Newton
force the pipe would have
slid under the roof truss in contact with it, and then fallen to the
ground.  He was unable to comment
with any certainty about the
two dark railway track lines to the right of the parallel white lines
and red mark on the roof truss.
In cross-examination Professor
Smith agreed that he and Dr Bemont were largely in agreement, save
for the trigger event which caused
the failure of the pipe.  He
agreed that it was necessary to draw a distinction between the way in
which the pipeline would
be expected to move when a force was exerted
upon it, and what had caused it to move in the first place.  He
conceded that
there must have been an ‘event’ which
caused the pipe to move.
[54]
Professor Smith conceded that if the Klambon fittings had been
correctly installed, the pipe would adequately have contained
the
five bar pressure exerted by the municipal water system.
Professor Smith opined that each pipe was secured by one hanger
with
the other side relying upon the Klambon fitting.  If there was a
dislocation, then the pipe would seesaw in its metal
strap and the
violence with which they parted was dependant on the air in the
system.  If there was any air in the system
it could have lifted
up the pipe.  He conceded however that there had to be a trigger
event, which could have been a failed
clamp.  In response to the
suggestion that Dr Bemont’s report showed no evidence of the
failure of a Lindapter jockey
clamp, Professor Smith suggested that
the data used was insufficient because there was only one example of
extreme over-tightening.
[55]
It was put to Professor Smith that Dr Bemont would say that the air
pressure would not cause the pipe to have moved as he had
suggested,
because it could not be greater than that of the water, which was
five bars.  Professor Smith repeated his statement
that if there
was water only in the pipe, the two parts would have moved gently
apart as the pipe failed.  If there was air
in the system the
result could have been vastly different and the air would act as a
coiled spring in expanding, which the water
would not do.
[56]
Mr
King
for the defendant put it to Professor Smith that if a reel of paper
on a forklift had struck the pipe, that load would have been
on the
way out of the warehouse – i.e. in the direction of the door.
Professor Smith stated that if that were so then
Mr Hlongwane’s
evidence must be wrong because the scratch could not have proceeded
in an uphill direction along the roof
truss as contended by Mr
Hlongwane.  If however a contact had occurred in the other
direction and a jockey clamp was loosely
tightened, the mark could be
explained.  However he conceded that the mark was not part of
the trigger event.  He did
not accept that Dr Bemont’s
view of the failure was more probable than his own. Professor Smith
stated that although it was
very difficult to be certain how things
had dislocated, the load would still have been redistributed to the
remaining clamps once
a failure occurred.
[57]
The plaintiff then closed its case.  In addition to the evidence
of Mr Hlongwane, the defendant called the following witnesses:
(a)
Mr John Werner Renhardt Goring, the managing director of ASIB;
(b)
Paul Stephen Hess, a branch manager of the defendant;
(c)
Dr Clinton Pierre Bemont a registered mechanical engineer and former
full-time lecturer in the school of mechanical engineering
at the
University of KwaZulu-Natal.
[58]
Mr Goring testified that prior to 1970 there were no standards for
fixed fire protection sprinkler systems.  To comply
with
international norms, ASIB was created to establish standards and the
policing of the sprinkler industry.  Mr Goring has
been employed
by ASIB for over 37 years and has extensive experience in the
installation and maintenance of sprinkler systems.
Since 1982
he has been the sole author of the sprinkler rules used in South
Africa, which are recognised both nationally and internationally.

He was instrumental in the formation of SABS standards and is
currently the author of the South African National Standard which
has
been accepted and prepared for final approval by the South African
Bureau of Standards.  He lectures in sprinkler hydraulics
and
hydro-statics, inter alia, at the College of the Fire Protection
Association of South Africa. Approximately 7 500 inspections
per
year are carried out by ASIB, including in other areas in Southern
Africa.
[59]
Mr Goring stated that the load on each jockey clamp was approximately
301 kilograms.  There are two kinds of clamps, one
made of cast
iron and the other made by Electromould which was a fabricated mild
steel clamp.  He confirmed that pipe hangers
should not be in
the middle of a pipe, but within the first two metres of the end of a
pipe.  He said that as a pipeline progressed
‘creep’
would be introduced whereby the hanging supports would move into the
second third of a subsequent pipe.
He conceded that he had not
seen the physical installation of the pipe at the warehouse, and had
relied on measurements which he
had taken from the drawing.  He
stated that because the jockey clamps could only be mounted to the
roof trusses, installers
would attempt to get them as near as they
could to the correct position.  If a problem arose in that
regard, the inspector
would take note of it, and request remedial
action where pipes were not properly supported.  In his view the
installation
in this case was acceptable and standard equipment had
been used.  He had never come across a failure of a pipe because
of
an over-tightening of the set screw on a jockey clamp.  He
said the use of jockey clamps on inclined roof trusses was
commonplace.
Roof structures are almost never flat and there
were virtually no installations where the jockey clamps would have
been installed
on horizontal roof trusses.
[60]
With regard to the safety strap recommended to be used on the jockey
clamps, he maintained that they were not available and
had never been
used in South Africa.  He said that he did not think he had ever
seen a clamp failure without some external
force being exerted upon
it.  He conceded that hangers do come adrift but usually as a
result of movement in the building
or the structure.  He thought
it unlikely that there could have been extensive movement at the
warehouse in the five day period
from when the pipe was installed.
Once the pipe had been pressurised and supported, a fault would have
shown up at that stage.
He would expect leaks and other faults
with the system to occur after the pipe had been up for approximately
18 months.  It
was for this reason that inspections were
conducted every six months on pipe installations.
[61]
He stated that the Klambon system was extremely strong, robust and
flexible even where a support moves.  He said that
although
hangers may become dislodged in time, that would not result in a
breach of the pipe.  He knew of only one instance
where the
collapse of a pipeline was attributed to a lack of support.
Clamps had become loose and failed to provide their
intended
support.  This was monitored and corrected in the normal course
of events.
[62]
Mr Goring was of the view that in 95 to 99 per cent of cases where a
pipe had failed, it was due to an external force exerted
upon the
pipe.  He said in warehouse situations most of the pipe failures
are caused by forklift strikes.  He was also
of the
view
that a forklift strike would not necessarily result in the instant
collapse of the pipe work.  He said that a failure
could occur
several hours or days or weeks later.  In his view a forklift
strike could cause the supports on a pipe to move
and when something
else happened, for example a surge in pressure, a failure could
result.
[63]
In cross-examination Mr Goring maintained that only where the
majority of hangers encroached into the central portion of the
pipes
would remedial action be required.  He was unable to comment on
the statement made by Mr Osborn that he had been concerned
when he
saw one hanger per pipe, approximately in the middle of each one.
Mr Goring said that according to the measurements
on the plan that
could not have been so. He conceded that he made this statement on
the basis of his assumption that the drawing
was an accurate
representation of the installation itself.
[64]
Mr Goring conceded that the certification of products forming part of
the hangers would only occur when a product was brought
into the
market, and he would not be aware if manufacturers had cut corners
with regard to quality.  He confirmed that there
had been no
certification of the Electromould product.  He was unable to
comment on whether the Electromould jockey clamps
had been tested for
failure, or the level at which they would fail.
[65]
Mr Goring also testified as to the physical inspection carried out by
ASIB on each site.  It was common cause that no
inspection had
been done prior to the failure of the pipe in this matter.  Mr
Goring conceded that it was one of the ASIB
rules that pipe hangers
should not be mounted in the middle two metres of a six metre pipe.
Mr Goring also testified to the
listing of approved products by ASIB,
which was done on a voluntary basis.  His evidence was that the
rules of ASIB were required
to be complied with, but not always
exactly, and that allowances were granted.  They were not
intended to be applied exactly
and in every case, but were instead a
guide to proper installation and maintenance.  He conceded that
during inspections,
ASIB inspectors found many unacceptable
installations and examples of shoddy workmanship.  He conceded
that it would have
been better to have had two jockey clamps per
length of six metre pipe because that would be strictly in accordance
with the support
criteria.  He said that installers operated on
very small margins and were extremely competitive.  They had a
tendency
to use minimum standards where possible.  He also said
that if there was too large a distance between roof trusses, a
trapeze
bar could be installed, but this was a very costly process.
It would enable more hangers to be put into place which could
not
otherwise be done.  An installer would not include costly items
in a tender document when those items were not called
for by the
design.
[66]
Mr Goring confirmed that the jockey clamp safety straps were not
available in South Africa.  It was his view that the
safety
strap was apparently not used in the United Kingdom.  He knew
about the recommendation for the safety strap to be used
on the
jockey clamps, but the present system had been used in an untold
number of installations with no failure.  The method
of
installation was then accepted and that may have been the reason why
the safety strap had not been used in South Africa.
[67]
Mr Goring considered that it was possible that a forklift had struck
the pipe in this matter but conceded that it was also
possible that a
clamp or threaded bar had failed.  He regarded it as unlikely
that a Klambon fitting had been incorrectly
installed because the
gasket would not seal and it was likely to have leaked.  Mr
Goring was of the view that the pipe may
well have been struck by a
forklift or load at a prior time, and a surge of pressure then caused
the Klambon fitting to fail.
[68]
Mr Goring confirmed that the way a pipe is pressured is by connecting
it to the municipal water system and feeding in water
from an
existing supplier.  If there was a bleed valve it would be open
to purge any air in the system.  A standing pressure
of
approximately five bars would be reached which could be boosted if
necessary by a small jockey pump or manual pump and could
be
increased up to ten bars. That pressure would be maintained for a
stipulated time in order to test the system.
[69]
Mr Goring also maintained that the advantage of the Klambon fitting
is that it is able to endure a large deflection before
a leak becomes
apparent.  He opined that a seven to eight degree deflection of
the two pipes held by the Klambon fitting would
not result in a
leak.  Generally more than that would result in a drip or stream
of water emerging from the joint.  He
said that because the
Klambon straightened under pressure it was more durable and less
likely to leak.  It was this flexibility
of the fitting which
allowed connected pipes to go over hills.
[70]
Paul Stephen Hesse then testified that he was a branch manager of the
defendant and had been called to the site on the Saturday
morning
after the failure.  He had arrived at approximately 8.30 to 8.45
am and found the warehouse floor largely cleaned
up.  The new
pipe was not intact and there were two six metre lengths of pipe on
the floor which had been moved over to one
side.  He had met
Terry O’Brien on site.  Mr O’Brien had been the site
supervisor of the installation.
He said that they had used
jockey clamps made by various manufacturers, because Lindapter clamps
had become difficult to obtain.
He said that whilst ASIB
supplied the tolerances within which they worked, the companies
supplying the jockey clamps had to supply
certificates showing that
the loads which could be supported by the jockey clamps conformed to
ASIB standards.  His view was
that the system had been up for a
week, and that pipes did not just fall down.  They are rigid but
do flex a bit and a force
had to act upon them to cause them to
fail.  He testified to the normal practice used by the defendant
in pressuring a new
pipe, but he had not been present when it was
done in this case.  The system had not been inspected by ASIB
because it was
not yet complete.  His view was that a Klambon
fitting in the centre of the pathway leading to the door had been
struck by
some external force, causing it to fail.  He conceded
however, that he did not know where the pipe first failed.
[71]
Dr Clinton Pierre Bemont testified that he was a registered
mechanical engineer.  He had been a full-time permanent lecturer

in the School of Mechanical Engineering at the University of
KwaZulu-Natal between 2008 and 2013, whereafter he had started his

own company, BB Metspect which specialised in investigating and
analysing mechanical failures.  His view was that it was
unlikely that the system had failed without evidence of some external
mechanism impacting on the pipe such as a forklift impact.
Such
an impact could have caused many different things to occur from that
point onwards.  Dr Bemont testified that he had
conducted a
series of tests in order to determine the failure point of various
jockey clamps.  To the extent that lock nuts
may have been over
or under tightened, that was not a likely cause of failure of the
jockey clamps.  The scratch mark testified
to by Mr Hlongwane
made sense because it could have been in any direction of a strike
which had actually occurred on the pipe,
which was an unknown
factor.  In addition the indentation would be greater at the end
of the scratch and not at the beginning
as Hlongwane believed it
was.  With regard to the evidence of Professor Smith that the
pipe would have undergone a snaking
motion when the pressure was
released, that was not impossible, but he considered it highly
unlikely.  It was also possible
that because the pipe was
not held securely in each band at the bottom of the hanger, that it
could move through the hoop
in a backwards and forwards direction.
[72]
Dr Bemont stated that the five bars of air pressure for any air
contained in the pipe was not a lot of pressure in engineering

terms.  It was a store of energy which could be compressed and
stored, and only when the pipe ruptured would the air play
a role.
With no air there would have been no snaking or rocking of any
significance.  Dr Bemont was also of the view
that the
inclination of the trusses played no role in any failure.  They
had tested both inclined and horizontal truss fixtures
and there had
been no difference.  He was also of the view that using a twelve
millimetre rod (as opposed to a sixteen millimetre
one) as part of
the hanger system was not a likely cause for any failure.  In
his view thermal expansion could almost entirely
be discounted
because all the elements of the building and the pipe construction
were made of steel and would expand and contract
at approximately the
same rate.  In addition, vibration would be low.
[73]
Dr Bemont was also of the view that it would have been best to have
used only Lindapter clamps, but his view was that the use
of other
clamps had not been a cause of the failure.  Although the
schedule showed that Electromould adaptors failed at a
lower level
than the others, they failed at measures of double the load required
to support the pipe.  His evidence was that
there is little
disturbance on a pipe as it hangs.  It is a simple engineering
structure, but once it fails the loadings then
become complicated.
He confirmed that the safety strap which could have been used
on the jockey clamps was not available
in South Africa.  He was
of the view that none of the aspects referred to by Mr Reabow was the
probable cause of the failure.
His view remained that the most
likely cause was the pipe being struck by a forklift, or a load
carried by a forklift.
[74]
Dr Bemont conceded that it was possible to install systems to reduce
the likelihood of a forklift strike, but this could have
increased
costs or been difficult to implement.  He maintained his view
that it was unlikely that poor installation would
have caused the
failure which occurred.  Once something exerted pressure on the
pipeline which caused the failure, the breakage
would have occurred
at one of the Klambon fittings.  His view was that although air
trapped in the pipe may have contributed
to the failure, it could not
have constituted the trigger force which initiated the failure.
Even if two jockey clamps had
failed he would not have expected that
the system would fail.  He conceded that the damage seen on the
Klambon fitting lug
could have been caused from striking the ground.
[75]
Dr Bemont was of the view that once a force was exerted upon the
pipeline, it would have moved upwards and struck the underside
of the
truss leaving the marks which were seen on the truss afterwards.
Whatever horizontal force had struck the pipe, it
would have been
amplified at the jockey clamp end and threaded bar, by a factor of
approximately four.  It was the pipe coming
into contact with
the truss which had left the paint mark on the truss.  He
referred to a photograph which showed that a strap
which had held the
pipe was distorted, and in his view that was consistent with the pipe
having come into contact with the roof
truss, which distorted the
shape of the strap.  He regarded it as likely that there had
been a significant impact between
the pipe and the roof truss.
He found it difficult to imagine any other cause other than a
forklift strike causing this force
on the pipe.
[76]
Dr Bemont conceded that the Electromould jockey clamps were thinner,
and therefore weaker than the other types of jockey clamps
which were
used in the installation of the pipe.  He conceded that it was a
difficulty that nobody knew which jockey clamps
were in place where
the break occurred.  He conceded that each section of pipe
appeared to have been secured by one hanger
from a roof truss.
[77]
Dr Bemont considered that a forklift strike would have contained a
lot of energy and probably caused the failure.  It
was as a
consequence of this that two pipes fell down and two more became
loose.  He conceded that once the pipes came apart
any air
pressure which existed in the pipe would come into play.  Dr
Bemont was extensively cross-examined on the tests which
he had
conducted on the Lindapter and other jockey clamps.  His view
was that the different type of clamps would ultimately
have made no
difference.  He recorded that his function was to understand
what had caused the failure of the pipe.  He
saw no relevance in
testing longitudinal loads when there was no suggestion that the pipe
had moved sideways and then just come
apart. He also said that it had
never been suggested that by losing one jockey clamp, the Klambon
fitting would part, but he conceded
that once a Klambon fitting
failed, the system was doomed.
[78]
Dr Bemont stated that, had he designed the pipe system, he would have
put in two hanging supports per pipe.  He conceded
that if the
hangers were not spaced equally, there would have been a resultant
loading on the pipes.  His view was that because
the trusses
were six metres apart, and the pipes 6.1 metres in length, the load
on each hanger would have been the same.
He did not agree with
the ASIB rules that the hangers should not go outside of the first
third of a length of pipe, and was of
the view that a hanger in the
middle of the pipe would be adequate.  Dr Bemont agreed with
Professor Smith’s statement
that the pressure in the pipe would
be uniform along its length.  He conceded that there would be
small increases of pressure
in the pipe during the day because the
water came from the municipal water supply, but he maintained that
the pressure would largely
remain static.  In reply to the
suggestion that the pipe may have slipped in the straps holding it,
his view was that that
would not have occurred without a cause.
[79]
In dealing with the difficulties which would have been caused by a
forklift driving into the warehouse and then having to raise
its load
or mast in order to come in contact with the pipe, Dr Bemont
expressed the view that drivers move their loads up and down
as they
travel and that they could have been swinging around after having
lifted a roll of paper when the impact occurred.
[80]
Under cross-examination Dr Bemont maintained that it was almost
certainly a reel of paper carried by a forklift which had struck
the
pipe.  The force would have caused deflection of the pipe and
the subsequent bending of the lug referred to by Mr Reabow.

This was because the Klambon tightening bolts would all have been
positioned horizontally in the pipe according to the evidence
of Mr
Hlongwane.
[81]
With regard to the use of the safety strap on the jockey clamps, Dr
Bemont agreed with Mr Reabow that it would have been a
good thing to
use it, but he was not sure how practical that was.  He opined
that it would increase the load capacity of the
clamp.  Dr
Bemont conceded that if there was a massive release of compressed
air, it was unlikely that pipes would be left
on top of the paper
roll in a straight line. Snaking and rocking of the pipeline would
have been significant in that event.
[82]
In response to questions by the court Dr Bemont stated that in the
case of a forklift strike there would usually be an instantaneous

failure of the pipe, but there was a possibility that a previous
impact could have caused the failure.  He said that in such
a
case:
(a)
the intensity of the strike need not be that great because of the
lever arm movement of the pipe;
(b)
a failure required a trigger mechanism;
(c)
the water was already present in the pipe;
(d)
for a reel  carried by the forklift to strike the pipe, the
driver would have had to have lowered the mast in order to
get under
the door.  It was also possible that such a strike would have
caused a crack in a clamp which could have slowly
propagated until it
failed.  This was more particularly so in a case where there is
corrosion of a clamp after it had cracked.
[82]
That was the case for the defendant.
[83]
Mr
Kissoon Singh
submitted that the possible corrosion of a clamp was not the case
which the plaintiff was required to meet.  There had been
no
expert notice of this in the expert summaries. The plaintiff had to
meet the case of the defendant in order to demonstrate that
the
forklift driver was not at fault.  This had been a positive
averment made by the defendant as to the cause of the failure
of the
pipe.  Whilst the plaintiff bore the onus of establishing
negligence, it was also required to disprove the defendant’s

version and establish that the allegations set out in its particulars
of claim were connected to the cause of the failure of the
pipe.
[84]
Mr
Kissoon Singh
submitted that the principle of
res ipsa
loquitur
was applicable.  This was because :
(a)
the pipe was
in situ
;
(b)
nothing interfered with it; and
(c)
it broke apart.
[85]
Common sense would dictate that something caused the break, and that
is why the defendant, in looking for a cause of the failure,
alleges
that it was a forklift strike which caused the failure.
[86]
Mr
Kissoon Singh
submitted that the witnesses for the plaintiff, Mr Reabow and Mr
Osborn, were in a better position to opine on this aspect because
the
defendant’s witnesses did not attend at the site. Mr Osborn was
a loss adjustor and his principals would have to pay
for the
consequences of the failure.  Mr Osborn saw how the pipe was
hanging and he thought that it was incorrectly suspended.
In
addition he looked at the forklift, spoke to its driver, focussed on
the pipes and called in Mr Reabow.  The theory of
an inadequate
installation was confirmed by the defendant’s witnesses, Mr
Goring and Mr Hesse, who confirmed that in the
installation industry
costs are of paramount importance and that there is intense
competition amongst installers. An installer
would not lightly quote
for extras such as cross members and trapeze bars not reflected on
the drawings because they are additional
expenses.
[87]
Mr
Kissoon Singh
submitted that one cannot adopt the attitude that costs are
paramount.  There is a duty to ensure that pipes are properly

installed and safe for the purpose for which they were intended.
He submitted that the use of Electromould jockey clamps,
as opposed
to the more acceptable stronger Lindapter jockey clamps, was
negligent because it was a jockey clamp of unknown strength.

No-one was called by the defendant to show why those jockey clamps
had been used and this was something within the knowledge and
control
of the defendant.
[88]
Mr
Kissoon Singh
submitted that it was also negligent to surpass the working load of
the jockey clamps.  He pointed out that 14 of the 22 Lindapter

jockey clamps tested by Dr Bemont failed below the safety factor
level of 1 264 kilograms.  The reason why such a safety

factor was referred to by manufacturers was because it could not be
held liable for the consequences of exceeding the safe working
load.
He queried why the defendant as the installer did not know that the
load was greater than the manufacturer’s
specifications. Mr
Kissoon Singh
also pointed to the fact that one jockey clamp for each pipe was used
all along the pipeline in contradiction to the requirements
of ASIB.
[89]
Mr
Kissoon Singh
emphasised that the ASIB regulations stated that the hangers should
not be in the middle one-third of the pipes.  Because
of the
‘creep’ testified to by the witnesses, two of the hangers
had exceeded that requirement by half a metre.
He also
criticised the fact that a sixteen millimetre threadbar was required
by the regulations, whereas a threadbar with a core
diameter of
twelve millimetres had been used.  Although Mr Goring had said
that this made no difference, Dr Bemont had conceded
that the
strength of each rod was more if a sixteen millimetre threadbar was
used then if a twelve millimetre threadbar  was
used.  Mr
Kissoon Singh
also referred to the fact that Dr Bemont had conceded that it was
better that each pipe should have had two hangers per pipe as
had
been done when the pipe was re-hung after the incident.
[90]
Mr
Kissoon Singh
submitted that where the plaintiff had alleged bad workmanship and
components, one would have expected the defendant to show the

contrary.  This was never done.  The evidence of how Mr
Hlongwane and Mr Buthelezi had placed the hangers was not led,
and
there had been no information provided regarding the tightening of
bolts, etc.
[91]
Mr
Kissoon Singh
pointed to the fact that Mr Reabow and Mr Osborn had initially both
suspected that the failure of the pipe was due to a forklift
strike.
They had both ruled this out after speaking to the forklift operator.
He submitted that the plaintiff had demonstrated
that it was probable
that the installation was improperly done and the most likely cause
of the failure of the pipe.  The
explanation of Mr Reabow and
Professor Smith for the marks on the underside of the truss had not
been discounted by Dr Bemont,
who regarded the possibility of the
marks having occurred in the way described by them as unlikely.
However, Mr Reabow and
Professor Smith had regarded the explanation
as a probable one.
[92]
With regard to the damage to the Klambon coupling, Dr Bemont conceded
that it was possible that the lug had been damaged when
the pipe fell
to the floor.  In addition, Klambon recommended that pipe bends
should be supported, which was not done properly
in this case. Mr
Reabow was of the view that the over-tightening or the
under-tightening of any of the lock nuts on the jockey
clamps would
have made a difference.  However, Dr Bemont only tested one of
each of them. This was inadequate.
[93]
Mr Kissoon Singh submitted that Dr Bemont said that although the
safety straps for the jockey clamps were not freely available
in
South Africa, they could have been easily manufactured. The defendant
should have followed the manufacturer’s recommendation
in this
regard.  Both Mr Reabow and Professor Smith were of the view
that the safety straps should have been used, and Dr
Bemont conceded
that it would have been of assistance.  The jockey clamps were
over-loaded to a greater extent than was recommended
by Lindapter in
circumstances where every pipe was fully loaded.  The installer
should have realised that the pipes were overloaded.
There was
no evidence led by the defendant as to why it disregarded the
recommendation to use the safety strap.
[94]
In addition, the recommendations regarding the Klambon fittings and
the anchoring of the pipeline on the bends was not followed.

The cumulative effect of one or more of these factors probably caused
the failure.  Dr Bemont did not conduct tests to show
the
failure load at which the clamps would fail as contended for in the
plaintiff’s suggestion of a longitudinal failure.
Mr
Kissoon
Singh
submitted that it had not been
established how the jockey clamps had slipped off the I-beam.
Once one slipped off, it was
common cause that it would load the
others.  The tests done by Dr Bemont were on a vertical pulling
force, and he had not
seen the need to do other tests.  In
addition no-one actually knew how many of the jockey clamps had
failed, and how many
of them had been the inferior Electromould
clamps.  These should not have been used.
[95]
Mr
Kissoon Singh
submitted that with regard to a forklift
impact there were three possibilities:
(a)
that the evidence of the witnesses at the site was the truth;
(b)
the theory of Dr Bemont was probable; or
(c)
the observations of Mr Osborn and Mr Reabow, who had concluded that
there had been no forklift strike was the most probable
explanation.
[96]
With regard to the opinions of Dr Bemont, his evidence was
speculative and based on photographs.  On the other hand, Mr

Padayachee of Springbok Trucking whose whereabouts had been
established very shortly before the trial, testified that he was now

self-employed.  In those circumstances he had no reason to
fabricate any evidence in favour of the plaintiff.  He told
the
court that he was standing about twelve metres from the pipe when it
burst.  At that stage the roll-clamp forklift was
nowhere near
the scene and not in his vision.  He said if it had been, he
would have noticed it.  Mr Padayachee also
testified that the
reels which were to be transported on the truck had come from a stock
on the other side of the warehouse and
that Sagren had been removing
the reels one at a time.  At the time of the incident Sagren was
outside the warehouse.
[97]
Mr Moodley, another independent witness, testified that when he
arrived Sagren was under the canopy and neither he nor his
machine
were wet.  This is an important observation because Mr Moodley
was looking for an explanation for what had happened.
He confirmed
that the reels which were removed from the warehouse by Sagren were
far away from the place where the pipe failed.
In addition
Sagren and his machine were not wet and he had observed this because
he felt it was his duty to investigate the matter
and establish what
had happened.  On the scene he spoke to Sagren who told him that
he was outside at the time that the pipe
had failed.
[98]
Sagren had been working at the warehouse for three years and
testified that the roller shutter door had never worked during
this
period.  He was the only person working on the night and he was
loading from the pre-marshalling area outside the warehouse
when the
incident happened.  The paper which he had been collecting to
place into the pre-marshalling area and onto the truck
had been taken
from the other side of the warehouse some 100 metres away from where
the pipe collapsed.  He testified that
when he carried a reel of
paper, he would ensure that it was no more than 30 to 40 centimetres
above the ground, and that he only
carried one reel at a time.
He said that he had travelled at approximately five kilometres an
hour and would be aware had
his hyster bumped into anything.
[99]
Mr
Kissoon Singh
submitted that the plaintiff’s witnesses were cross-examined
and no inroads were made into their evidence.  They were
not
educated people, and had not been working for the plaintiff at the
time of the trial.  No evidence had been adduced by
the
defendant to establish that they were being untruthful. On the
probabilities a forklift strike of the pipe was unlikely.
This
is so because, on the evidence, it could only have occurred as a
forklift was approaching the warehouse door.  As the
pipe was a
level higher than the top of the door, the forklift driver would have
had a very short period within which to lower
his load prior to
passing through the doorway and after striking the pipe.  In
addition there was the inherent improbability
that if a forklift
struck the pipe and caused it to collapse, then both the driver and
the forklift itself would have got wet.
As none of the above
had been established or was probable in the circumstances, it had
been overwhelmingly established that a forklift
strike had not been
the cause of the collapse of the pipe.
[100]
Mr
Kissoon Singh
also pointed to the fact that Mr Reabow who was an experienced
engineer had gone to look for evidence of a forklift strike because

that is what he had been told had occurred.  He was not
convinced that that was in fact what had happened, and accordingly

looks for another explanation, and come to the conclusion that the
failure of the pipe had been because of poor installation.In

attempting to disprove the theory of Mr Reabow, Dr Bemont’s
evidence was all based upon an assumption of a forklift strike

causing an instant failure.  In cross-examination he had said
that the incident would have taken place within a few seconds
of the
pipe being struck by a forklift.  Mr
Kissoon
Singh
submitted that Dr Bemont had been
somewhat defensive of the position he had adopted when assessing the
evidence.  The evidence
of Mr Reabow was that a forklift strike
with a delayed reaction was highly improbable, and Professor Smith
agreed with this view.
Those views were not challenged in
cross-examination. No expert evidence had been provided by the
defendant dealing with this aspect.
[101]
Mr
Kissoon Singh
submitted that in the circumstances:
a)
the likelihood of a forklift strike was
improbable; and
b)
the plaintiff had no case to meet on the
suggestion of a forklift strike resulting in a delayed failure of the
pipe.
No
incident reports had been produced covering the five days after which
the pipeline was installed.  No witnesses were called
in this
regard and in the circumstances the inference of negligence in the
installation of the pipeline was inescapable.
[102]
Mr
King
drew attention to two aspects of the plaintiff’s
case :
(a)
that the plaintiff had led no evidence of what the actual trigger
mechanism was, which caused the collapse of the pipe; and
(b)
the time spent attempting to dispel the theory of a paper strike.
Mr
King
submitted that the defendant does not have to prove how the incident
occurred.  It is for the plaintiff to establish on the

probabilities the cause of the incident, the act of negligence on the
part of the defendant, and the causation between those two.
In
this regard he referred to
Buthelezi v
Ndaba
2013 (5) SA 437
(SCA) at paras 14
to 16.  In this matter a surgeon had testified that something
had gone wrong during a surgical operation
although he had done
everything correctly in carrying out the medical procedure.  In
those circumstances the court had held
that the surgeon had not been
negligent.
[103]
In this case the plaintiff’s witnesses spoke about incorrect
installation but when cross-examined on this issue, Mr
Reabow had
referred to what could have contributed to the failure.  Mr
King
submitted that this was an incorrect
approach. What one had to do was start with the cause of the failure
and then link it to negligence.
It was incorrect to approach
the matter the other way around.
[104]
Mr
King
submitted that although much depended upon what the existing hangers
were doing at the time of the failure, the conclusion was
something
of a guess by the experts.  Nowhere does the plaintiff pin down
the ‘trigger event’ responsible for
the cause of the
failure.  On the other hand, Dr Bemont’s evidence dealt
with the likelihood of failure.  Although
Professor Smith had a
theory of the longitudinal movement of the pipeline causing a brush
with the truss and leaving paint marks,
he was unable to say why this
would have occurred.  It was the view of Mr Reabow that the most
likely cause of failure was
a Klambon fitting, but that would have
leaked had one of them been faulty. This would have been detected by
the staff on site.
[105]
Mr
King
submitted that if the actual cause of the failure of the pipeline was
not established, then there was nothing to which negligence
could be
linked.  The experts had discounted a longitudinal force as
probable and the lateral blow had been described as possible,
but not
probable.  There was no evidence that vibration would have
played the key role in causing the failure.
[106]
With regard to a delayed reaction Mr
King
submitted that whilst it was possible, the experts regarded it as not
being probable.  It was necessary before any conclusion
was made
that negligence was involved, that a probability was established as
to the immediate cause of the failure. With regard
to the criticism
of the defendant for not calling further witnesses and testing more
equipment, Mr
King
pointed out that the plaintiff bore the onus and Mr Reabow had made
no experiments at all.  The investigations conducted by
Dr
Bemont had specifically been directed as testing Mr Reabow’s
theories.  In this regard the weakest jockey clamps
and the
worst moulded one was capable of bearing twice the weight it was
expected to carry.  But what caused the extra load
leading to
the failure.  The experts agreed that the load was static when
the pipe is up and under pressure, and the pressure
of the water was
an internal force distributed evenly through the pipe along its
length.
[107]
Mr
King
submitted
that the observations of Mr Osborn were not those of an expert,
because he was a loss adjustor and not an engineer.
It was his
suggestion that had pointed Mr Reabow in the direction of a faulty
installation. If the cause of the failure was a failed
jockey clamp,
where was that clamp situated and what caused the failure?
These questions have not been answered by the plaintiff.
Mr
Reabow relied on observations he made of Lindapter jockey clamps
picked up at the scene.  His observations did not establish
a
cause.  In addition Mr Reabow had made no tests whatsoever in
order to establish whether over- or under-tightening had been

present.  It is, however, clear from the expert evidence that
the failure of one jockey clamp would not have caused the system
to
fail. Mr
King
stressed that allegations in a vacuum do not establish a probability.
Those allegations must be connected to the negligence alleged.

In this regard the allegations of a failure properly to support the
bends in the pipe were not demonstrated to have caused a failure.
It
was unfair to accuse Dr Bemont of attempting to justify his theory.
He had conducted tests based on what Mr Reabow maintained
was wrong
with the system.
[108]
With regard to the absence of safety straps, Mr
King
submitted that thousands of installations had been carried out and
none of them had fallen down in the manner the pipe in this
matter
had failed.  Without establishing the cause of the failure it
was impossible to know whether or not the safety straps
would have
assisted. With regard to the evidence of the plaintiff’s
witnesses on site, Sindulal had contradicted where Sagren
said he was
when the incident happened.  In addition Sagren had avoided
testifying about going in and out of the warehouse,
when the evidence
of the witnesses established that that had clearly taken place.
It was also clear from the evidence that
when Mr Padayachee drove the
truck onto the premises Sagren still had to fetch more reels from the
warehouse itself. Mr
King
submitted that the contradictions between the plaintiff’s
witnesses were enough to establish that Sagren had not told the
court
everything that happened.  The possibility cannot be dismissed
that he was being untruthful about what had happened
on the night in
question.
[109]
It is common cause in this matter that at about midnight on the 25
th
August 2006, a section of the main sprinkler feeder pipe installed by
the defendant five days earlier came apart, and the area
beneath it
was flooded, resulting in water damage to the paper stored in the
warehouse.  Mr
Kissoon Singh
accepted that the onus was
on the plaintiff to establish the defendant’s negligence and
that that negligence was a cause
contributing to the failure of the
pipe and the consequent damage.  In the plaintiff’s
particulars of claim the following
allegations of negligence were
made:
(a)
that the pipes forming part of the sprinkler system were inadequately
supported, in that the clamps and supervision rods used
to support
the pipes were insufficient in number, and/or unsuitable for the
required purpose and/or improperly installed and/or
the safe working
load of the supports was exceeded;
(b)
the joints between each section of pipe were unsupported;
(c)
but for the improper and/or inadequate fitting and securing of the
supports to the fire sprinkler pipes the collapse would not
have
occurred.
[110]
The defendant alleges that the piping was installed in a proper and
workmanlike manner and that the equipment used in the
installation
was adequate, sufficient and fully in accordance with design
parameters for such an installation.  In addition
the defendant
alleged that Sagren Adikanny was operating a hyster forklift truck
inside the warehouse to move reels of paper, and
in doing so he
bumped the pipe, causing it to dislodge the Klambon coupling, in
consequence of which the joint separated.
[111]
The
res ipsa loquitur
doctrine does not create a presumption
of negligence, nor does it alter the incidence of the onus.  It
only arises in circumstances
where the facts establish that an
inference of negligence is appropriate.  This prima facie
inference must then be displaced
by evidence adduced by the
defendant.  This does not mean that there is an onus on the
defendant to establish the facts on
which it relies on a balance of
probabilities.
See
:
Arthur v Bezuidenhout & Mieny
1962 (2) SA 566
(A)
The
doctrine is invoked where a plaintiff is not in a position to lead
evidence because the evidence is peculiarly within the knowledge
of
the defendant.  It is the occurrence itself which establishes
the drawing of a conclusion of negligence.  The incident
which
occurs is in those circumstances one which would not ordinarily occur
unless the defendant had been negligent.
[112]
The inference of negligence upon which Mr
Kissoon
Singh
wishes to rely in this matter is
the method of installation of the pipe by the defendant, and the
materials which it used in doing
so.  In my view, it is
improbable that the pipe would have failed without negligence.
But what act of negligence, and
by whom?   As I understand
the application of the
res ipsa loquitur
doctrine, in the event that I am unable to determine the cause of the
failure of the pipe because the probabilities are evenly
balanced as
to what precisely caused it, then the plaintiff cannot succeed.
[113]
In this matter the plaintiff is not in a position where it is unable
to adduce evidence of the actual installation because
that was all
within the knowledge of the defendant.  Whilst the defendant was
responsible for installing the pipe, the plaintiff
caused
investigations to be carried out immediately after the failure of the
pipe.  It was given access to the warehouse and
was able to
examine the pipe and the hanging system which supported it.  It
was in a position to examine and determine the
nature of the
materials which formed part of the structure and investigate whether
or not they were sufficient.  In addition
the plaintiff had
available to it, and led the evidence of, the persons working in the
warehouse at the time the pipe failed. The
first assumption which was
made by the plaintiff’s representatives was that a forklift
truck or its load had indeed struck
the pipe.  But that theory
was discounted, and the evidence of the only forklift driver working
in the warehouse on the night
in question was led.  That
evidence was backed up by the theoretical evidence of Mr Reabow and
Professor Smith.
[114]
Having heard the evidence of the plaintiff’s witnesses who were
present on the night in question, I do not believe that
their
evidence can be disbelieved.  In this regard I have in mind
particularly the evidence of Sagren Adikanny that in the
execution of
his duties on that night, the forklift which he was driving and the
load contained thereon did not strike the pipe.
He is an
impartial witness in the sense that he is no longer employed to carry
out work for the plaintiff.  His evidence was
that it was not
possible for him to have struck the pipe and been unaware of it.
I find this evidence particularly compelling
because the evidence of
all the experts was that the pipe was very heavy, each six metre
section of it weighing approximately 355
kilograms.  It seems
grossly improbable that a load carried on the forklift driven by
Sagren could have struck the pipe and
he did not become aware of it.
In addition to any other evidence in this regard there is the
probability that had he had
the load so high that it could have
struck the pipe, he would have had to have lowered the load in the
five metre space between
the pipe and the frame of the roller shutter
doorway  of the warehouse.  Had he not lowered the load in
that space he
would have struck the top of the roller shutter doorway
frame. Had he indeed struck the pipe and it had not immediately
collapsed,
there seems no reason for him to have been untruthful in
that regard.  It seems clear that if his forklift or the load on
it had struck the pipe and had that strike caused an immediate
breach, a deluge of water would have descended upon both him and
his
machine.  The evidence of all the witnesses was that both he and
his machine were bone dry after the incident.
[115]
Having analysed the evidence in this way there is a temptation then
to disregard the possibility of a forklift strike entirely.

However, the evidence of Mr Goring was to the effect that it was
possible that a forklift could strike the pipe and cause damage
to it
which could only cause the pipe to fail some hours, days or weeks
later.  This could occur where there was a forklift
strike, and
later a surge in water pressure actually triggers the failure.
[116]
On the other hand Mr Reabow and Professor Smith thought it unlikely
that that could happen.  In their view once a Klambon
joint had
been compromised, it would leak and that evidence would demonstrate
its pending failure.  It seems to me that that
concession in
itself seems to indicate that although they both dismissed the
notion, there remains the possibility that a forklift
strike could
have occurred, and the damage only occurred later when it collapsed.
The initial strike could have been by another
forklift driver in an
entirely separate incident some time previously.  The forklift
driver could have realised that he had
struck the pipe but thought
nothing more of it because nothing happened at the time he struck
it.  He could well have assumed
that he had ‘got away with
it’ so to speak because no consequences had evidenced
themselves.
[117]
Against the scenario of a strike with a delayed result, must be
weighed the plaintiff’s suggestion that the installation
of the
pipe was negligently carried out. With regard to the installation of
the hanger system, Mr
King
submitted that whilst criticisms may be levied against various
aspects of the installation, there was no evidence whatsoever to

demonstrate that any one or more of those criticisms could be held
responsible for the failure of the pipe.  Throughout the
trial
he looked for evidence of a ‘trigger mechanism’ which had
caused the failure of the pipe.  Other than a
forklift strike,
there was no other evidence of such a trigger mechanism.  Mr
Reabow was of the view that the cumulative effect
of improper hanger
positioning along the six metre lengths of pipe, the use of jockey
clamps where the safe working load was exceeded,
the use of a hanger
thread of 12 millimetres instead of the recommended 16 millimetres
and the failure to manufacture and install
safety straps on the
jockey clamps could, when all taken together, have caused the
collapse of the pipe.  This evidence was
in large part
contradicted by the evidence of Mr Goring who was able to claim vast
experience in examining installations.
Indeed, Mr Goring
referred to his forty years of experience in comparison with the lack
of experience of Mr Reabow and Professor
Smith when debating whether
a pipe which had been struck could stay in place for some time before
failing.  The suggestion
of Mr Goring was that if anything was
dislodged it could cause the pipe to fail when it came under the
strain of a surge in the
pressure of the town’s water mains.
[118]
It was the evidence of Mr Hesse was that in forty years of experience
in the sprinkler industry he had never seen a failure
like this.
He expressed the view that the jockey clamps, threaded pipe and metal
band used in the installation were very
common in the sprinkler
industry.  His view was that once a pipe had been up for a week
it would not just fail without a force
being exerted on it.
Something must have happened to cause it to fail, whether that
be a water surge acting on an already
weakened system or something
else.
[119]
Dr Bemont was of the view that whilst there were a number of
possibilities which could have caused the failure of the pipe,
the
most probable one was a forklift strike.  In his view the
evidence of the marks on the underside of the truss and in particular

the deformation of the teardrop shaped steel band holding the pipe
were evidence of this having happened at some stage.  Dr
Bemont
was of the view that it was almost certainly a paper load which
struck the pipe causing deflection and there was a possibility
that
the pipe could have rotated in the Klambon groove.  At some
stage the whole thing would come apart.  In his view
this would
have happened within a few seconds.  Although this would usually
be the case, it was possible that a previous collision
with a
forklift or its load could have caused the failure, particularly if
corrosion of a cracked jockey clamp or other part had
occurred.
Although he had initially been sceptical of the concept of a delayed
failure, at the end of his evidence Dr Bemont seemed
to warm to the
idea.
[120]
It was assumed during the leading of the experts and
cross-examination of them that when the pipe failed, one or more
lengths
of the pipe fell to the floor of the warehouse.  This
was not, however, the evidence of the eye witnesses to the incident.

It was the evidence of Sagren Adikanny that he did not see any pipes
on the floor.  His view was that when he looked at the
pipes
they were still hanging although they had parted.
[121]
I have considered all the evidence and the various theories as to the
cause of the pipe failure. I am of the view that:
a)
A forklift strike and an instantaneous
failure was not the cause of the failure of the pipe. The evidence of
the witnesses on site
at the time of the incident puts paid to that
theory.
b)
A failure caused by a negligently
installation also seems unlikely because the system had remained up
for five days after installation.
The evidence of the experts does
not point to a manifestly poor installation method or the use of
defective or grossly inadequate
hanger systems. Neither Mr Reabow nor
Professor Smith could point to a single negligent act on the part of
the of the defendant’s
employees as a probable cause of
failure. The indications of failure of the system are not suggested
to demonstrate a gradual continuing
slide to failure as a result of
the factors.
c)
A delayed failure pursuant to a forklift
strike is more probable than any of the other suggestions. That could
have occurred at
a time before Sagren Adikanny came on duty.
[122]
In the circumstances, the plaintiff has not proved the negligence of
the defendant in the installation of the pipe or the
use of
inadequate hanger systems. As the defendant is not alleged to have
been responsible for any other negligent act, no inference
of
negligence arises from the failure of the pipe. The
res
ipsa loquitur
doctrine is of no
assistance to the plaintiff in these circumstances.
[123]
I accordingly make the following order:
The
defendant is absolved from the instance with costs, such costs to
include those consequent upon the employment of senior counsel.
Dates
of hearing: The 10
th
to the 13
th
March 2014 and
the 6th to the 9
th
June 2016.
Date
of judgment: The 12
th
July 2016.
Counsel
for the Plaintiff: A K Kisson Singh SC (instructed by Norton Rose
Inc)
Counsel
for the Defendant: J C King SC (instructed by Garlicke &
Bousfield Inc).