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[2013] ZAGPPHC 466
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Two Pedestrians Mining CC v Exxaro NBC Coal (25392/2011) [2013] ZAGPPHC 466 (12 February 2013)
REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
Case
No. 25392/2011
DATE:
12 FEBRUARY 2013
ELECTRONIC
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
TWO
PEDESTRIANS MINING
CC
..............................................
Plaintiff
And
EXXARO
NBC
COAL
..............................................................
Defendant
JUDGMENT
MEYER,
J
[1]
This is an action for damages to property. The plaintiff’s
claim is based on a contract of carriage of goods and in the
alternative in delict. Determination of the quantum of the
plaintiff’s damages was separated and postponed sine die at the
commencement of this trial in terms of Rule 33(4) of the Uniform
Rules of Court and the only remaining question to be determined
at
this stage is the liability of the defendant.
[2]
The defendant owns and operates various coal mines in the Belfast
district, one of which is its Exarro Glisa Colliery (‘Glisa’).
The defendant utilises the services of outside contractors to crush
and screen coal extracted at Glisa. One such contractor was
the
plaintiff which conducts business in the mobile crushing and
screening industry.
[3]
An agreement was concluded between the plaintiff and the defendant
during March 2008 in terms whereof the defendant engaged
the services
of the plaintiff to crush and screen 200 000 tons of coal at Glisa
for a consideration of R16.70 per metric ton excluding
VAT. The
defendant was also obliged to pay to the plaintiff an establishment
and de-establishment cost in the sum of R52 000.00
excluding VAT.
The establishment and de-establishment cost was the consideration
which the defendant agreed to pay to the plaintiff
for the plaintiff
transporting its equipment to, of setting it up at, and of removing
it from Glisa once it had finished crushing
and screening the 200 000
tons coal. The plaintiff agreed to comply with all the defendant’s
‘… Health, Safety
and Contractors pack requirements.’
I refer to this agreement as the initial agreement.
[4]
During March 2008 the plaintiff established its equipment - a Terex
Pegson XA400 Mobile Jaw Crusher, a Powerscreen Chieftain
1400 Mobile
Screen and two Volvo L120 front-end-loaders fitted with 5.4 cubic
metre buckets – at a site on Glisa that was
designated by the
defendant’s then mine manager, Mr Sakkie Nkosi, which site was
at the main plant area. The plaintiff appointed
its employee, Mr Len
Burton, as the site manager of this site. Pursuant to the conclusion
of the initial agreement the plaintiff
crushed and screened D-grade
coal for the defendant at this site, which coal the defendant
supplied to SAPPI. The plaintiff was
permitted to conduct the
crushing and screening activities up to twelve hours a day.
[5]
It is common cause that Mr Burton represented the plaintiff and Mr
Nkosi the defendant in the conclusion of an oral agreement
on or
about the 19th of May 2008 in terms whereof it was agreed that the
defendant would provide a horse and low-bed trailer combination
to
move the plaintiff’s crusher to another site on Glisa and that
an employee of the defendant would drive the horse and
low-bed
combination. The other site where the defendant required the
plaintiff to continue the crushing and screening activities
was about
three kilometres away from the site at the main plant area where the
plaintiff was operating at the time. The plaintiff
was not obliged
to pay to the defendant a reward or freight for the carriage. I
refer to this agreement as the contract of carriage.
Certain further
tacit terms averred by the plaintiff in its particulars of claim are
denied by the defendant and other express
or tacit terms pleaded by
the defendant in its plea are denied by the plaintiff. I shall
return to the disputed terms.
[6]
Mr Lessing, who is a member of the plaintiff, and Mr Burton testified
on behalf of the plaintiff. The defendant’s then
mine manager,
Mr Nkosi, who is no longer employed by the defendant, its workshop or
engineering foreman, Mr Mahlangu, and the only
driver of its horse
and low-bed trailer combinations testified on behalf of the
plaintiff. Mr Burton did not impress me as a
witness. The evidence
given by Messrs Nkosi, Mahlangu and Makuwa are very much more
convincing and probable on several of the
disputed issues.
[7]
Mr Burton testified that Mr Nkosi had asked him for the plaintiff’s
crusher, screen and front-end loaders – ‘the
whole
set-up’ – to be moved to another site, because the
defendant’s crusher at such other site had broken down.
Mr
Burton informed him that he needed to arrange a low-bed for the
moving of the screen and crusher through his immediate supervisor,
Mr
Lessing. Mr Nkosi then offered that the defendant’s low-beds
could be used to transport the plaintiff’s equipment
to the
other site. It is undisputed that the defendant had two low-beds, a
30 ton low-bed and an 80 ton one. Mr Burton telephoned
Mr Lessing
who gave permission for the plaintiff to use the defendant’s
low-beds. Mr Burton thereupon informed Mr Nkosi
that Mr Lessing had
agreed for the plaintiff to use the defendant’s low-beds.
[8]
Mr Lessing testified that Mr Burton had called him and had informed
him that Mr Nkosi had requested him to move the plaintiff’s
crusher to another site. He testified that he recalled that the
reason for the required move was because the defendant experienced
a
problem at one of its plants and required a crusher to keep the plant
going. That according to Mr Lessing is why the defendant
did not
require the plaintiff’s front-end loaders and screen also to be
moved. This evidence of Mr Lessing and that of Mr
Burton that Mr
Nkosi requested that the plaintiff’s ‘whole set-up’
be moved is contradictory. Mr Lessing testified
that he informed Mr
Burton that the defendant would utilise Highveld Radiators - a
company in Middelburg usually engaged by the
plaintiff to move its
equipment - to move its crusher. Mr Burton then informed him that
the defendant had offered to send its
own low-bed to move the crusher
in order to save costs. Mr Burton conceded under cross-examination
that he was not informed by
Mr Nkosi that the defendant wished to
save costs and such was merely his own deduction. Mr Lessing
testified that he gave permission
to Mr Burton for the defendant’s
low-bed to be used to move the plaintiff’s crusher provided
that it was the correct
low-bed.
[9]
Mr Nkosi testified that he had gone to the site where the plaintiff
was operating on one of his daily visits the day before
the incident,
when Mr Burton brought it to his attention that the stockpile of coal
would be depleted in a day or two’s time
and he had asked Mr
Nkosi’s directive as to which other stockpile of coal the
plaintiff should process thereafter. Mr Nkosi
told him that there
was a stockpile of similar coal to that which the plaintiff was
contracted to process in an adjacent section
and that the plaintiff
must move to that site. Mr Burton enquired from him whether the
defendant could assist the plaintiff with
a low-bed, because there
would be a delay if he needed to arrange one from Middelburg. Mr
Nkosi undertook to speak to the defendant’s
workshop foreman
and he told him that he would assist if one was available, otherwise
Mr Burton would need to arrange one himself.
Mr Nkosi spoke to
the defendant’s workshop foreman, Mr Mhlangu, and he informed
him that he had received a request from
a contractor to move its
crusher and screen to another site, and he enquired from him whether
there was any possibility that he
could assist with a low-bed. Mr
Mhlangu confirmed that a low-bed was available.
[10]
Mr Mahlangu testified that Mr Nkosi had called him and that he had
asked him what his low-bed availability was. Mr Mahlangu
confirmed
that the defendant’s 30 ton low-bed was available. Mr Nkosi
informed him that the plaintiff would like to use
it the next day and
that he should provide one. Mr Mahlangu confirmed to him that he
would send a driver with the low-bed to
the plaintiff the next
morning. Mr Mahlangu requested Mr Makuwa to take the 30 ton low-bed
to the plaintiff’s site. He
informed him that the plaintiff’s
site manager would load a machine onto the low-bed and that he must
then go to where they
tell him to take it. Mr Makuwa also testified
that his foreman, Mr Mahlangu, instructed him on the day of the
incident to use
the low-bed which he had pointed out to Mr Makuwa and
to take it to ‘contractors who wanted to move a machine’
–
and he also later on told him that it was a crusher - and
that they would load it.
[11]
It is common cause that Mr Makuwa arrived at the site at which the
plaintiff was operating with a horse and the defendant’s
30 ton
low-bed. He parked the horse and low-bed combination where it was
indicated to him to do so. Mr Makuwa stood a distance
away and he
did not participate in any way in the loading of the plaintiff’s
crusher onto the low-bed. It was loaded by
its operator, who was an
employee of the plaintiff, and by Mr Burton, who was standing on the
low-bed and directing the operator
of the crusher to ensure its
loading onto the centre of the low-bed. Once the crusher had been
loaded, Mr Makuwa, who was assisted
by the plaintiff’s
operator, fastened it with chains to the low-bed. It was part of Mr
Makuwa’s job description to
ensure that a load is securely
fastened. Mr Makuwa and the plaintiff’s operator got into the
horse. The horse and low-bed
combination with the crusher on the
low-bed toppled over to the right side and the crusher landed onto
its side on the ground immediately
as the horse and low-bed
combination moved forward or pulled off. Mr Makuwa testified that
the truck started to shake when he
released the hand brake and then
toppled over to its side. The estimation is that the horse and
low-bed combination only moved
about 30 to 50 centimetres forward.
The crusher was properly fastened to the low-bed and it remained
fastened even after the toppling
over.
[12]
The plaintiff’s crusher was damaged and it now seeks to recover
the amount of damages suffered by it as a result thereof
from the
defendant ex contractu or ex delicto. It is common cause that ‘[t]he
only cause of the toppling over of the low-bed
was the overloading of
the low-bed coupled with the movement of the low-bed.’
[13]
Counsel for the plaintiff, Mr EB Clavier, and for the defendant, Ms
MM Lingenfelder, were ad idem that the defendant was a
‘private’
or casual carrier of goods in this instance. The common law
liability of a private carrier of goods is concisely
and in my view
accurately stated as follows in LAWSA Vol 2 First Reissue para 78:
‘
The
private carrier may undertake the carriage of goods either for
remuneration or gratuitously. Where a private carrier of goods
is
remunerated for his services he is liable for damage to or loss of
the goods he carries as a depositary, that is for negligence.
Where
a private carrier gratuitously undertakes the carriage of goods he is
liable as a gratuitous mandatary, that is for gross
negligence or
malfeasance only. The common law liability of the private carrier in
regard to the goods he carries may be modified
or expanded by
agreement between the carrier and the consignor or consignee.’
Footnotes
omitted.
[14]
Gross negligence or malfeasance on the part of the defendant has not
been pleaded nor established by the evidence. This was
in my view
correctly conceded by the plaintiff’s counsel. The contractual
claim of the plaintiff is accordingly on common
law liability
principles doomed to failure if the carriage of its crusher was
gratuitous and the liability of the defendant not
modified and
expanded by the tacit terms upon which the plaintiff relies. It was
submitted by the plaintiff’s counsel that
the carriage was for
reward since the defendant benefited from saving costs for which it
would otherwise have been invoiced by
the plaintiff and its supply
was not unnecessarily delayed, allowing it to supply more coal to its
customers. There is, in my
view, no merit in counsel’s
submissions in this regard.
[15]
The liability for the costs involved in moving the equipment of the
plaintiff from one site on to another on Glisa in instances
where the
defendant’s low-bed is not utilised is in dispute. Mr Lessing
testified that the costs involved in obtaining the
services of a
carrier such as Highveld Radiators would have been in the region of
R3000.00 – R4000.00. He testified in chief
that the plaintiff
would in such event have recovered the costs incurred in moving its
crusher from the defendant. Under cross-examination,
however, he
testified that it was not a hard and fast rule that the defendant
would be invoiced for the costs of such a move and
that ‘as a
rule of thumb’ he would nine out of ten times invoice a mine
for such costs incurred. Mr Lessing was unable
to say whether the
plaintiff invoiced the defendant for subsequent internal moves of its
equipment on Glisa.
[16]
Mr Nkosi testified that the defendant’s low-beds are used to
convey the plaintiff’s equipment across the mine and
are as a
general rule not available to contractors. The defendant paid the
plaintiff a fixed rate per ton no matter how long it
takes the
plaintiff to produce 200 000 tons coal. The costs of moving
equipment internally on Glisa forms part of the plaintiff’s
operational costs and the defendant would not be responsible
therefore. Mr Nkosi also testified that the defendant would pay for
additional costs incurred by a contractor such as the plaintiff if it
is proved by the contractor concerned that additional costs
were
incurred and if it could be justified why the defendant should pay
such additional costs.
[17]
I find the defendant’s version on this issue more probable. If
the costs of internal moves did not form part of the
plaintiff’s
operational costs then one would have expected that the plaintiff’s
quotation would also have made provision
for the payment of such
costs. Whether or not the plaintiff would have invoiced the
defendant for the costs of moving its equipment
on this occasion had
the defendant’s low-bed not been used and whether or not the
defendant would have accepted the responsibility
for the payment
thereof are at best for the plaintiff matter of conjecture. I also
accept on the evidence presented that a delay
in the processing of
the coal by the plaintiff would have had no impact upon the supply of
coal by the defendant to its customers.
Mr Nkosi testified in this
regard that the plaintiff was crushing D-grade coal for supply to
SAPPI and the defendant at the time
had sufficient coal of that grade
available to supply SAPPI for thirty days.
[18]
In any event, any such incidental benefits that might have flowed to
the defendant as a consequence of it having made its low-bed
available to the plaintiff, whether at the instance of Mr Nkosi on
the plaintiff’s version or at the request of Mr Burton
on the
defendant’s version, does not, in my view, amount to an express
or tacit agreement between the plaintiff and the defendant
regarding
the freight to be paid for the service nor to the payment of
remuneration to the defendant. Had it not been agreed
by the
parties that no freight was payable the defendant would have been
entitled to the specific rate of freight as might have
been agreed
upon between them in that event or to its usual rate where no
specific rate of freight had been agreed upon. See:
LAWSA Vol 2
First Reissue para 80. Unless it had been otherwise agreed, the
indirect consequential benefits accruing to the defendant
by making
its low-bed available to the plaintiff would in such event also not
have constituted part of the remuneration
that
were to be paid to the defendant for the carriage. I accordingly
find that the defendant was not paid or remunerated for the
carriage
of the plaintiff’s crusher and that the carriage was
gratuitous. The defendant in terms of common law principles
accordingly did not carry the more onerous liability of a private
carrier that is paid for the carriage of goods.
[19]
The plaintiff alleges further tacit terms of the contract of
carriage, which are that in terms thereof the defendant would
provide
to the plaintiff a low-bed and horse that were capable of
accommodating the size and more particularly the weight of the
plaintiff’s crusher; send an employee in the form of the
driver of the low-bed and horse who was competent in the manoeuvring
of the low-bed and horse and who was also aware of the maximum limits
that the low-bed and horse could accommodate in terms of
size and
weight of particular machines and more particularly the plaintiff’s
crusher; deliver the plaintiff’s crusher
to its destination in
the same good working condition in which the defendant found it; and
that the defendant would convey the
plaintiff’s crusher with
due care and diligence without causing loss or damage to it. The
plaintiff further avers that the
defendant breached the contract of
carriage by providing a low-bed and horse combination that was unable
to accommodate the plaintiff’s
crusher; a driver that was not
competent to advise the plaintiff that the low-bed and horse
combination could not accommodate
the plaintiff’s crusher; and
by failing to convey plaintiff’s crusher safely and allowing it
to become damaged. The
defendant denies the tacit terms averred by
the plaintiff and its alleged breaches the terms of the contract of
carriage. The
defendant alleges that the contract of carriage
contained the express or tacit terms that the plaintiff would ensure
that the horse
and low-bed provided by the defendant would be
suitable for the transportation of the crusher and that the crusher
was loaded onto
the low-bed and securely fastened. The plaintiff
denies the additional express or tacit terms alleged by the
defendant.
[20]
The plaintiff’s alternative delictual claim is based on the
defendant’s alleged duty of care not to cause damage
to the
plaintiff’s crusher. The plaintiff avers that the sole cause
of the damage to its crusher was the defendant’s
negligence
and/or that of its driver, who were negligent in having provided a
low-bed and truck combination which was incapable
of carrying the
size and weight of the plaintiff’s crusher and of which fact
they reasonably could and should have been aware
of; in having
failed to ensure that the low-bed could carry the plaintiff’s
crusher when they reasonably could and should
have done so; and/or
in having failed to avoid the plaintiff’s crusher becoming
damaged when by the exercise of reasonable
care they reasonably could
and should have done so. The defendant denies any negligence on its
part or that of its driver and
it pleads that the crusher was damaged
as a result of the plaintiff’s sole negligence or that of its
employees in that they
failed to ensure that the horse and low-bed
were suitable to convey the crusher and/or they loaded the crusher
onto the low-bed
without ensuring that it could accommodate the
plaintiff’s crusher’s size and weight.
[21]
I have mentioned earlier on in this judgment that the plaintiff
appointed Mr Burton as the site manager of the site upon which
the
incident in question happened. He was present at the site on a daily
basis. Mr Burton managed the site and he took all the
decisions at
the site. He was responsible for all activities and for everything
happening at the site, including the establishment
and
de-establishment of the site, supervising and ensuring the correct
and safe loading and off-loading of equipment and machinery
at the
site, ensuring compliance with all the defendant’s health,
safety and contractors pack requirements including the
provisions of
the National Mining and Health Act, and managing the plaintiff’s
employees and equipment at the site. Mr Burton
as site manager was
responsible to conduct what has been referred to as a ‘hazard
identification and risk assessment’
or ‘hira’ prior
to the commencement of any activity or operation at the site.
[22]
Mr Lessing gave permission to Mr Burton for the defendant’s
low-bed to be used provided it was the correct one. Mr Burton
knew
the defendant had two low-beds. Both Messrs Nkosi and Burton were
according to their evidence unaware that the defendant’s
80 ton
low-bed was not operational at the time of the incident. It is
common cause that the defendant’s 30 ton low-bed that
was used
for the carriage of the plaintiff’s crusher was the wrong one.
It was only suitable for the carriage of loads up
to 30 tons. The
weight of the plaintiff’s crusher was 45 tons. The defendant’s
80 ton low-bed would have been the
correct one to use.
[23]
Mr Burton was responsible for overseeing the loading process of the
plaintiff’s crusher onto the defendant’s low-bed.
It was
his responsibility to ensure that the crusher was loaded onto the
correct low-bed. This was, apart from the instruction
that he
received from Mr Lessing, part of his responsibilities as the site
manager. Mr Burton conceded that the loading of the
crusher required
him to undertake the required hira or ‘mini risk assessment’
and that such assessment enjoined him
to ascertain whether or not the
defendant’s low-bed was adequate to carry the plaintiff’s
crusher. Mr Nkosi testified
that the site manager is in charge of
such a move and responsible for it. He also testified that it was Mr
Burton’s obligation
to undertake a hira before starting the
operation of moving the plaintiff’s crusher. If the low-bed
that was sent to move
the plaintiff’s crusher turned out not to
be the right one during the risk assessment that Mr Burton was
supposed to undertake,
he ought to have sent it back.
[24]
Mr Burton’s evidence that he did what he could to assess
whether the defendant’s 30 ton low-bed was the correct
one is
untenable. Mr Burton conceded that he only knew the approximate
dimensions of the plaintiff’s crusher at the time
of this
incident but that he did not know its weight even though a plate was
mounted on its side displaying its gross weight to
be 45 tons. Mr
Burton testified that he saw the side plate but that he did not read
it. Mr Burton also conceded that he was aware
that the defendant’s
low-bed had to have a plate mounted on it that displays the maximum
weight that it was capable of carrying.
It is also undisputed that a
conspicuous plate was indeed mounted on the side of the defendant’s
low-bed which displayed
30 400 kilograms as the maximum weight it was
capable of carrying. Mr Burton conceded under cross-examination that
he would not
have loaded the crusher onto the defendant’s
low-bed if he had established the carriage capacity of the
defendant’s
low-bed and the weight of the plaintiff’s
crusher. Mr Burton’s insinuation that everybody else –
Messrs Nkosi,
Mahlangu, Makuwa and the defendant’s engineering
staff – instead ought to have known the weight of the
plaintiff’s
crusher simply does not convince.
[25]
Instead of assessing the appropriateness of the defendant’s
low-bed to carry the weight of the plaintiff’s crusher
with
reference to the carriage capacity of the defendant’s low-bed
and the gross weight of the plaintiff’s crusher,
Mr Burton
testified that he thought that the low-bed ‘might be a bit
small’ and he ‘asked the driver if the low-bed
was large
enough to transport the crusher.’ He testified that the driver
told him that he had on a previous occasion moved
a similar machine
from Johannesburg to the mine on the low-bed, which assurance Mr
Burton accepted. Mr Makuwa denied that he spoke
to Mr Burton while
he was at the site. This occasion was the first time that he was
required to move a crusher. Mr Makuwa also
denied that he ever
before moved a similar crusher from Johannesburg to the mine.
[26]
I find it improbable that Mr Burton would have relied for the purpose
of his risk assessment on the mere say so of the defendant’s
driver about a similar crusher that was conveyed by him on that
low-bed. It is also not suggested that Mr Burton confronted Mr
Makuwa after the incident about his assurance that the low-bed could
accommodate the weight of the crusher or that he complained
to Mr
Nkosi about the alleged assurance that had been given to him. The
‘Accident/Incident Investigation Report’ that
was
completed by Mr Burton as part of the plaintiff’s insurance
claim arising from this incident contains a description of
how this
incident occurred. No reference is made to any assurance or
representation that was given or made by Mr Makuwa to Mr
Burton that
the low-bed could accommodate the weight of the crusher. In answer
to a further question about the action that had
been taken or would
be taken ‘to overcome the basic cause(s) to prevent a
reoccurrence’ of this incident it is stated
that ‘Johan
Pienaar to supervise all loading of equipment.’ Mr Lessing
also confirmed that he implemented such remedial
action after this
incident, namely that Johan Pienaar, a mechanic in the employ of the
plaintiff, was to supervise all loading
of equipment in future. Mr
Burton in any event reasonably ought to have undertaken the risk
assessment with reference to the weight
of the plaintiff’s
crusher as opposed to accepting an alleged vague allegation of a
‘similar crusher’ that was
conveyed on the low-bed. It
is not suggested by Mr Burton that he enquired from Mr Makuwa what
the weight of the alleged similar
crusher was that Mr Makuwa
allegedly conveyed from Johannesburg to the mine. By his own
admission Mr Burton did not know the weight
of the plaintiff’s
crusher.
[27]
In applying the officious bystander test I am of the view that the
unexpressed provisions of the contract of carriage averred
by the
plaintiff can upon an examination of the express terms and of the
legally implied terms of that contract and the relevant
surrounding
circumstances not be inferred and that the evidence on a balance of
probabilities established the tacit term alleged
by the defendant
that it was agreed that the plaintiff would ensure that the horse and
low-bed trailer provided by the defendant
would be suitable for the
transportation of the crusher. See: Alfred McAlpine & Son (Pty)
Ltd v Tvl Provincial Administration
1974 (3) SA 506
(A), at 531 –
532; Pan American World Airways Inc v SA Fire & Accident
Insurance Co Ltd
1965 (3) SA 150
(A), at 175C; Shirlaw v Southern
Foundries (1926) Limited
[1939] 2 KB 206
, at 227; and RH Christie The
Law of Contract 5th Ed, at 168 et seq.
[28]
The circumstances were such that the plaintiff’s site manager,
Mr Burton, was responsible and obliged to undertake an
assessment in
order to ascertain whether or not the low-bed that was provided by
the plaintiff was the correct one to move the
plaintiff’s
crusher. The plaintiff’s crusher was damaged as a result of
the sole negligence of Mr Burton who failed
to ensure that the horse
and low-bed were suitable to convey the crusher and he caused the
plaintiff’s crusher with a gross
weight of 45 tons to be loaded
onto the defendant’s low-bed with a carrying capacity of only
30 tons. No negligence on
the part of the defendant or that of its
driver has been proved. Mr Makuwa merely carried out his
instructions. He did not participate
in the loading of the
plaintiff’s crusher. The damage occurred immediately on
commencement of the conveyance due to the
fact that the low-bed was
not capable of carrying the weight of the plaintiff’s crusher.
Mr Burton conceded that Mr Makuwa
pulled away with the horse and
low-bed in a normal manner.
[29]
In the result the plaintiff’s claim and alternative claim are
dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
12
February 2013