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[2013] ZAKZDHC 61
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Engen Petroleum Ltd v Mykatrade 160 CC t/a Strata Logistics and Another (13897/2010) [2013] ZAKZDHC 61 (1 November 2013)
1
NOT REPORTABLE
IN HIGH COURTOF SOUTH AFRICA
KWAZULU-NATAL DIVISION,DURBAN
CASE NO:13897/2010
In the matter between:
ENGEN PETROLEUM LIMITED
.........................................................
Plaintiff
and
MYKATRADE 160 CC t/a STRATA LOGISTICS
...................
First Defendant
KHAZAMULA SAMUEL MOKATSI
..................................
Second
Defendant
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
A collision occurred on the westbound carriageway of
the N3 between Durban and Pietermaritzburg near the Marianhill Toll
Plaza
on 20 April 2010. As a consequence, the Plaintiff’s
truck tractor and tanker trailer (the rig) caught alight, spilled
its
petroleum load which also caught alight and which ran into a
storm water drain on the side of the freeway and down the hillside
into Giba Gorge. It is common cause that the truck tractor and the
tanker trailer were damaged to the point where they had no
residual
value. The entire load of petroleum was lost. The load caused damage
requiring it to be cleaned up in an environmentally
responsible
fashion. It is common cause that the plaintiff was obliged to incur
the costs of such a clean-up and that this gave
rise to damages
recoverable from the defendant. It is for the damages arising from
this collision that the plaintiff sues.
At the time the matter came to trial, these costs can
be summarised as follows:
a. Loss of truck tractor (VAT incl) R386 105.00
b. Assessor’s charges for truck tractor (VAT incl)
R 4 263.60
c. Loss of tanker trailer (VAT incl) R524 331.60
d. Assessor’s charges for tanker trailer (VATincl)
R 2 109.00
e. Towing and like charges (VAT incl) R 21 694.43
f. Total clean-up costs R478 490.64
g. Total clean-up assessment charges R207 265.04
h. Local authority’s charges for fire services R
38 720.00
i. Loss of load
R158 034.84
TOTAL (VAT excl)
R1 705 759.20
The defendants accepted that they are jointly and
severally liable for these damages but disputed aspects of the
quantum claimed.
The two main heads disputed were the pre-collision
value of the truck tractor and the tanker trailer and the
reasonableness of
the costs incurred by the plaintiff in cleaning up
the spill. It was agreed that there was no residual value in either
the truck
tractor or the tanker trailer. Items a, c, f and g were
thus in dispute. All the other items were agreed.
The plaintiff called a number of witnesses regarding
the clean-up operation. Mr Boyce was, at the time, an employee of
EnviroServ
Waste Management (Pty) Ltd (EnviroServ). It was accepted
that he is an expert in the field. He gave evidence that this
company
was involved in the clean-up operation at the instance of
the plaintiff and that he oversaw it. The operation took from 20
April
2010 to 30 April 2010, working each of those days. It was an
extremely serious operation and required immediate response so as
to
prevent more serious contamination, in particular of the stream at
the bottom of Giba Gorge and the dam into which it ran.
This is
because the areais steep and the petroleum, if not mopped up, would
penetrate the soil and, if it had reached that far,
could have
contaminated the clay below. It might also have leeched out of the
soil at a lower point and contaminated the wetland.
The necessity of
the work which was undertaken was never challenged. The only
challenge launched was to the reasonableness of
the rates charged to
the plaintiff.
His evidence was that EnviroServ had a contractual
relationship with the plaintiff with pre-agreed rates for a year at
a time.
These were lower rates than were charged by EnviroServ to
other entities due to the ongoing relationship.No other companies
had
the resources to do the clean-up. He was cross examined as to
the rates of two competitors, Hazclean and Drizit. One of the
plaintiff’s
other expert witnesses, Mr Pfotenhauer, had
requested these two entities to provide their rates as at 2010 but
they had only
provided rates as at August 2013. This witness
produced a table which reflected the April 2010 rates of EnviroServ
and the 2013
rates of the other two entities. As regards the hourly
labour rates, a Hazmat technician was charged out by EnviroServ at
R200
for both normal time and overtime, by Hazclean at R300 for
normal time and R 450 for overtime and by Drizit at R245 for normal
time and R355 for overtime. A Hazmat responder was charged out by
EnviroServ at R153 for normal time and overtime, by Hazclean
at R175
for normal time and R260 for overtime and by Drizit at R135 for
normal time and R175 for overtime. Finally for Spill
assistants,
EnviroServ charged R55 for both normal and overtime, Hazclean R55
for normal time and R85 for overtime and Drizit
R44.90 for normal
time and R54.90 for overtime. When asked to comment, Mr Boyce
indicated that he was aware of the rates of Drizit
and that the
figures given for Drizit for 2013 were not correct. He stated that
the rates of EnviroServ, especially as charged
to the plaintiff for
the work done in the present matter, were competitive and
reasonable. He also indicated that EnviroServ
did not differentiate
between normal and overtime. EnviroServ was the only entity large
enough to conduct a clean-up of this
magnitude. None of this
evidence was challenged.The person who had recorded all the work
done was also called but not subjected
to any challenge on that
evidence.It is common cause that, between 20 and 30 April, there
were two weekend days and a public
holiday where EnviroServ worked.
Mr Pfotenhauer gave evidence that the company for which
he worked, Kantey and Templar, was contracted by the plaintiff to
conduct
a contamination assessment. Various reports were prepared.
His visits to the site coincided to an extent with those of
EnviroServ
and his final assessment, conducted in 2013, showed that,
apart from one aspect, the contamination levels were within the
norms
accepted. He also testified as to his survey of EnviroServ’s
costs compared to those of Hazclean and Drizit as mentioned
above.
He had no independent knowledge of the various costs but had to rely
on what was supplied. His opinion was that the amounts
claimed by
Enviroserv were reasonable in the circumstances. Since his evidence
was based on figures supplied by the other entities,
it is based on
hearsay. The figures were contradicted by the direct evidence of Mr
Boyce who, as mentioned above, claimed personal
knowledge of those
of Drizit and who was not challenged. Where there is a contradiction
between them as to the figures, accordingly,
the evidence of Mr
Boyce must be preferred.
In argument the defendants attacked the reasonableness
of the charges. However, in the light of the unchallenged and
un-controverted
evidence of Mr Boyce, this attack must fail. I am
satisfied that Mr Boyce was aware of comparative pricing, now works
for a competitor
of EnviroServ and accept his evidence concerning
the reasonableness of the charges and the unique qualification of
EnviroServ
to do the work.
Another aspect in dispute was whether or not the
amounts charged by Kantey and Templer were reasonable. A further
expert, one
Ms Erasmus, was called in this regard. It evidence, but
not in her expert summary, she referred to comparative charges
demonstrating
that these were reasonable. The only cross examination
was directed at her failure to have referred to comparative charges
in
her expert summary and report. The evidence was acceptable and
credible and the plaintiff discharged the onus to prove that the
charges of Kantey and Templer were in fact reasonable. As was the
case with the clean-up costs themselves, no issue was made
as to the
necessity of the work done by Kantey and Templer. This was an
appropriate concession.
The other major issue was the loss sustained as a
consequence of the damage to the truck tractor and the tanker
trailer. An expert
witness, Mr Botha, was called concerning the
pre-collision value of the truck tractor. It had been agreed between
the parties
that it had no residual value. He obtained the
pre-collision value of the vehicle by consulting the Mead and
McGrouther guide.
This guide, he described as being universally
accepted. The guide usesprices supplied to it by all the dealers of
actual sales,
both to the trade and to the public. The former are
tabulated as trade values and the latter as retail values. The only
attack
launched on his evidence arose from a notation on the guide
indicating that it may be necessary to adjust the value of the
vehicle
depending on condition and distance travelled. He indicated
that the notation at the top of that page did not relate to heavy
vehicles as regards distance travelled. It did relate to the
condition of a vehicle which might, in a minor way, lead to an
adjustment. He accepted that he was not aware of the pre-collision
condition of the vehicle and was not able to establish that
since it
has been completely burnt out. He had not looked at the maintenance
records and was unaware as to whether or not the
vehicle had been in
a prior collision nor had he seen photographs of the vehicle prior
to the collision. He vouched, however,
for the accuracy of the guide
from his personal experience saying that it is as accurate as one
can get. He gave evidence concerning
the pre-collision value of the
additional items fitted to the rig. These comprised a tracking
device, a tachometer, three fire
extinguishers and a device which
the law required fitted for vehicles carrying dangerous substances.
He could, of course, not
testify as to whether these items were in
good working order because they were destroyed in the fire.
The driver of the vehicle was called in evidence. He
indicated that the policy of the plaintiff was a rigorous one to
ensure that
vehicles remained in excellent condition both as regards
their mechanical state and their appearance. He had been allocated
to
the truck tractor and the tanker trailer for the past five or six
years and had followed the guidelines whereby a check was done
prior
to leaving the depot for any issues which might arise and a
checklist completed. If anything required repair, this was
taken to
the workshop of the plaintiff if it was a minor repair and to the
manufacturer if it was a major repair. The truck tractor
and the
tanker trailer were both serviced regularly and all procedures
followed so that repairs were done timeously if necessary.
The truck
tractor and the tanker trailer were both in very good condition
prior to the collision. As regards the extras whose
pre-collision
value was testified to by Mr Botha, each of them was in good working
order.
Another expert witness, Mr Money, gave evidence as to
the post collision value of the tanker trailer and that this had
been agreed
between himself and the defendant’s expert, Mr
Hamilton. In the end, his evidence was not contested as to the
pre-collision
value of the tanker trailer, premised as it was on
this having been in good working order as was testified to by the
driver.
In this case, the liability to compensate the plaintiff
for damage sustained as a consequence of the collision was conceded.
In
delictual terms, these damages amount to the patrimonial loss
suffered by a plaintiff as a consequence of the wrongful act. A
plaintiff is obliged to allege and prove the quantum of damages
suffered.
1
Even
if a defendant admits liability in a lesser amount, it need not
particularised the admission and nor does that admission
attract any
onus.
2
The approach of the courts to the quantum of damages is
also clear. The plaintiff must produce all the evidence that it can
reasonably
produce to enable the Court to assess the quantum of
damage.
3
If a plaintiff has done this, the court is bound to
award damages, even if the award amounts to little more than an
estimate.
4
If the plaintiff fails to do so, the court must grant
absolution from the instance.
5
This is because, as explained in
Mkwanazi
by van Winsen JA, if evidence is available but was not
led and a court is obliged to make the best estimate, the attempt of
the
court might afterwards be shown not to accord with the facts.
6
Not only must all reasonably available evidence be led
but, where costs are involved in calculating damages, they must be
both
necessarily incurred and reasonable.
In the result I am satisfied that the plaintiff
discharged the onus as regards all of the disputed items.
The plaintiff submitted that the various heads of
damages had been sufficiently quantified at dates where demand was
made as to
amounts finally arrived at. This was not contested by the
defendants and the order takes into account interest running on the
amounts from those appropriate dates.
The only other issue dealt with in argument was the
question of costs. The first issue in this regard is whether or not
the qualifying
fees of Mr Glynn Millard should be allowed. He had
been employed to give an expert opinion as to the value of the load
carried
in the tanker trailer. The defendants submitted that this
was unnecessary since the value could have been obtained by way of
referring to records in the possession of the plaintiff. The
plaintiff submitted, however, that if it had relied on its own
internal
records, these would probably have been attacked as not
being a reasonable value for the load. There is considerable force
in
this submission of the plaintiff. There is no doubt that the
defendants may well have adopted that approach. It is appropriate,
accordingly, that these qualifying fees be allowed.
The second aspect on the question of costs related to
the scale on which the defendants should pay costs. The plaintiff
submitted
that the approach of the defendants had been unnecessarily
obstructive and they should be visited with a punitive costs order
on the scale as between attorney and own client. It is so that a
number of pre-trial conferences were held between the parties
and
two were held, pursuant to the provisions of Rule 37(8) of the
Uniform Rules of Court before me in Chambers. The defendants
expressed their attitude that the plaintiff was put to the proof of
the quantum of damages and that, although the defendants
did not
intend to call any witnesses, they wished to exercise their right to
cross examine the witnesses of the plaintiff. In
to the authority of
Ward v Steenberg
7
where Ramsbottom J said the following:
‘
If there is no evidence that what was
charged or what was paid was reasonable, then there is no
prima
facie
proof of that element in the
case. The fact that there is no cross-examination on the point does
not supply what is lacking; there
is no need to cross examine on a
point on which no evidence has been given, and in a case like this to
do so would be bad advocacy.’
The plaintiff, however, submitted that the defendants
had, themselves, instructed experts on the issue as to the quantum of
the
plaintiff’s claimed damages. Neither of the experts so
instructed had challenged the reasonableness of the charges under the
disputed heads. The plaintiff, accordingly, submitted that there was
no genuine dispute concerning reasonableness which could not
have
been easily resolved. Accordingly, it was not necessary for the
defendants to go to trial on these issues.
While the plaintiff is correct that the defendants had
no need to go to trial on the issues in question, it is most
certainly
the right of a party to require their opponent to prove
their case. There is no onus on an opponent to reach agreement. Of
course,
if an opponent unreasonably opposes a matter, a court has a
broad discretion to express its displeasure in the costs order
given.
This is recognised in Rule 37 (9)(a)(ii) which obliges a
court to consider whether it is appropriate to make a special order
as to costs against a party or his attorney because that party or
attorney failed to a material degree to promote the effective
disposal of the litigation. In this instance, that is precisely the
situation. The defendants had at the disposal experts advising
them
on the disputed heads of damages. In the end, there are experts
agreed with those of the plaintiff to the extent that the
defendant
did not deem it necessary to lead their evidence. The joint minute
indicated agreement on every point. It does not
assist the
defendants to say that they did not request the experts to advise
them on the issue of reasonableness. That is always
an issue as
regards the question of quantum. In my view, accordingly, and in the
exercise of my broad discretion, I find it appropriate
that the
defendants should be visited with the displeasure of this court for
failing to promote the effective disposal of the
litigation despite
requests at pre-trial conferences by the plaintiff in that regard.
In the result, the following order is granted:
The 1
st
and 2
nd
defendants are
ordered to pay the following jointly and severally, the one paying
the other to be absolved:
Payment in the sum of R1 705 759.20;
Interest at the rate of 15.5% per annum:
2.1 on the sum of R1 344 588.40 from 26 July
2010 to date of payment;
2.2 on the sum of R126 571.60 from 4 July 2011 to
date of payment;
2.3 on the sum of R234599.28 from 22 October 2013 to
date of payment.
Payment of the plaintiff’s costs of suit on the
scale as between attorney and client, which costs shall include the
qualifying
fees and travelling expenses, where applicable, of the
following expert witnesses:
3.1 Mr Aldo Botha;
3.2 Mr Reg Money;
3.3 Mr Christopher Boyce;
3.4 Mr TorinPfotenhauer;
3.5 Ms Diane Erasmus;
3.6 Mr Glynn Millard.
DATE OF HEARING: 30, 31October and 1 November 2013
DATE OF JUDGMENT: 1 November 2013
FOR THE PLAINTIFF: TJ Nelinstructed by HERALD GIE
ATTORNEYS, locally represented by BEALL, CHAPLIN & HATHORN.
FOR THE DEFENDANTS: PJ Wallis instructed by NORTON ROSE
FULBRIGHT SOUTH AFRICA.
1
Jowell
v Bramwell-Jones
2000 (3) SA 274
(SCA) para 22.
2
Turners
Asbestos Products (Pty) Ltd v G Straw & Son (Pvt) Ltd
1974
(3) SA 286
(R).
3
Esso
Standard SA (Pty) Ltd v Katz
1981 (1) SA 964
(A) at 970H.
4
Hersman
v Shapiro & Co
1926 TPD 367
at 379.
5
Mkwanazi
v Van der Merwe& another
1970 (1) SA 609
(A) at 632B-C.
6
Ibid
.
7
1951
(1) SA 395
(T) at 404A-B.