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[2008] ZAWCHC 71
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Brown and Another v Pienaar and Others (3674/07) [2008] ZAWCHC 71 (11 August 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 3674/07
In
the matter between
RUSSEL
JAMES BROWN
First Plaintiff
JOHN
SLOEP
Second Plaintiff
and
PIETER
ANDRIES PIENAAR
First Defendant
MELVIN
DOUGLAS CLASSEN
Second Defendant
CLASSENS
HOME IMPROVEMENT CC
Third Defendant
DON
NOEL DANIEL LAMBERTS
Fourth Defendant
VEN PROJECTS CC
Fifth Defendant
Advocates
for Plaintiff
s : Adv
Peter Corbett
Instructed
by : Malcolm Lyons & Brink Inc
Tel 021 425-5570
(T Brivik)
21
st
Floor 1 Thibault Square
CAPE TOWN
Advocate
for Fourth and Fifth Defendant : Adv D A Stephens
Instructed
by : A A Mayat Attorneys
82
Garfield Road
CLAREMONT
Dates
of hearing : 27
th
November 2008
Date
of judgment : 11August 2008
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 3674/07
In
the matter between
RUSSEL
JAMES BROWN
First
Plaintiff
JOHN
SLOEP
Second Plaintiff
and
PIETER
ANDRIES PIENAAR
First
Defendant
MELVIN
DOUGLAS CLASSEN
Second
Defendant
CLASSENS
HOME IMPROVEMENT CC
Third
Defendant
DON
NOEL DANIEL LAMBERTS
Fourth
Defendant
VEN PROJECTS
CC
Fifth Defendant
JUDGEMENT
: 11
th
day of August 2008
________________________________________________________________
NDITA, J
This
is an edited version of my judgment delivered on 11 August 2008.
Introduction
[1] The
plaintiff claims against the defendants arise from personal injuries
sustained by them when the balcony of a building collapsed
at 109,
High Level Road, Sea Point, on 25 April 2004. As a result of the
fall, the plaintiffs allegedly sustained serious injuries,
suffered
shock, pain and discomfort and incurred medical expenses.
[2] The
parties are in agreement that only the merits of the plaintiff’s
claim are to be decided at this stage.
[3] The
plaintiffs are adult male persons residing at Loader Street, Cape
Town. The first defendant is the owner of residential
premises
situate at 109 High Level Road, Sea Point, Cape Town, where the
balcony collapsed. The second defendant is a building
contractor, who
conducts his business through the vehicle of a close corporation,
namely Classens Home Improvements CC, which is
the third defendant.
The fourth defendant is the owner of a steel works business and
conducts his business through Ven Projects
CC, which is the fifth
defendant.
[4] The
plaintiffs in their particulars of claim allege that the collapse of
the balcony was caused by the negligence of the first
and/or second
and/or third and/or fourth and/or fifth defendants who were negligent
in one or more of the following respects, in
that they:
failed to obtain the
services of a structural engineer to advise in relation to the
planned construction of the said balcony;
failed to instruct a
structural engineer to design appropriate details to ensure the
structural integrity of the said balcony;
notwithstanding being
aware that the Planning Department of the Cape Town City Council had
refused to approve the plans for the
building of the balcony on the
grounds that the structural details to be provided by a structural
engineer had not been submitted
to it, caused the balcony to be
constructed in the absence of such structural details;
constructed
the said balcony and/or permitted the construction of the said
balcony without regard for its structural integrity,
thereby
rendering it unsafe for visitors to the said premises such as the
plaintiffs;
constructed the said
balcony in a manner, which was unprofessional, unworkmanlike and
rendered it unsafe; and/or
failed to act with due
care.
UNDISPUTED FACTS
[5] The
following facts are not disputed:
The first plaintiff
sustained a severe fracture and dislocation of the left foot and
ankle and suffered shock, pain, suffering
and discomfort as a result
of the fall.
The second plaintiff
sustained serious bodily injuries in the form of a fracture of the
left tibula and left ankle and suffered
shock, pain, and discomfort
as a result of the fall.
Both
plaintiffs have
locus
standi
.
At all material times,
the first defendant was the owner of the premises wherefrom the
plaintiffs suffered a fall.
The fifth defendant
constructed the balcony that collapsed when the plaintiffs were
standing thereon.
The
defendants failed to obtain the services of a structural engineer to
advise in relation to the construction of the said balcony.
The defendants failed to
instruct a structural engineer to design appropriate details to
ensure the structural integrity of the
said balcony.
No plans were submitted
or passed by the City Council for the construction of the balcony.
THE DEFENDANTS’ PLEAS
[6] The
first defendant pleads that during or about 2002, he entered in an
oral agreement with the second defendant alternatively
third
defendant, it having been represented by the second defendant, and in
terms of which the second defendant alternatively the
third defendant
became obliged to inter alia construct the balcony in question.
Consequently, the second or alternatively the third
defendant caused
the construction of the balcony to be effected and contracted the
fourth, alternatively the fifth defendant to
do so. Furthermore, the
first defendant denies that the balcony collapsed as a result of any
negligence on its part and avers in
particular that the negligence
giving rise to the collapse of the building is attributable to the
second or third or fourth and/or
fifth defendant. In the alternative,
the first defendant denies causation, and in the further alternative
pleads that the accident
occurred as a result of the negligence of
all the defendants as joint wrongdoers.
[7] The
second and third defendants deny constructing a balcony on the
premises of the first defendant. According to the defendants,
the
balcony was constructed by the fourth, alternatively the fifth
defendant at special instance and request of the first defendant.
Furthermore, if it is found that the second and third respondents
were negligent, then the damages fall to be apportioned in terms
of
section 2 (8) (a) of the Apportionment of damages Act no: 34 of 1956.
[8] In
terms of their amended plea, the fourth and fifth defendants allege
that the fifth defendant constructed and installed the
said balcony
as sub-contractor to the third defendant. It is further alleged that
at the time of the installation of the balcony
the fifth defendant
intended supporting the balcony by means of two vertical supports.
Furthermore, the first defendant, in the
presence of the second
defendant, instructed the fifth defendant not to utilize the vertical
support but to utilize a knee brace
to support the balcony. It is
further alleged that the fifth defendant advised the first and second
defendants that the knee brace
would not be adequate and that the
fifth defendant would not guarantee that it would support the weight
of the balcony, but, nevertheless,
the first defendant instructed the
fifth defendant to utilize the knee brace and the second defendant
agreed thereto. It is further
alleged that as a result of the
circumstances set out above, the first and second defendants “
tacitly
or impliedly indemnified the fifth defendant from any claim for
damages arising from the inadequate knee brace”
.
In the alternative, it is alleged that at all material times, the
fifth defendant acted as a subcontractor to the second defendant,
alternatively, third defendant and is consequently not liable.
[9] In
the further alternative, they alleged by the fourth and fifth
defendant that the first, second and third defendants are joint
wrongdoers and were negligent in one or more of the following
aspects:
(a) causing the balcony
to be supported by a knee brace support in circumstances where this
was not adequate;
(b) preventing the fifth
defendant from installing the two vertical supports which it intended
to install;
(d) failing
to ascertain what would be appropriate supports for the balcony.
In
the further alternative, they allege that the plaintiffs were
negligent on the grounds that:
they
stood or occupied a balcony which was not adequately supported;
they
stood or occupied a balcony which was overcrowded at the time and
not intended to support the additional weight occasioned
by its
overcrowding.
THE EVIDENCE
The plaintiff’s
case
[10] The
first plaintiff, a dentist by profession, testified that he and the
second plaintiff were friends with the first defendant,
Mr Pienaar.
On 25
th
April 2004, both plaintiffs were invited to a birthday party at the
home of the first defendant. A group of people attended the
party
which was held in the living room of the first defendant’s
home. Whilst enjoying the party a car alarm went off. Mr
Brown
testified that he went to the balcony which overlooked the area where
the cars were parked, to investigate whether it was
their car alarm.
A number of people followed. In a split second, the balcony fell off
and he was trapped by its tension wires.
When he looked down on his
leg, he observed that his tibia and fibular were exposed. Mr Brown
also injured his back during the
fall.
[11] Under
cross-examination, it transpired that Mr Brown was not warned that he
should not step onto the balcony.
[12] A
further witness to be called in support of the plaintiff’s
case, was Mr Ugo Giuseppe Rivera, who is a civil engineer
in private
practice with extensive experience in the field of structural
engineering. Mr Rivera inspected the photographs of the
balcony
(exhibit “B”) after its collapse and testified that:
In
terms of the National Building Regulations and Building Standards Act
103 of 1977 and the regulations promulgated thereunder,
the first
defendant was required to submit plans for the intended balcony to
the Cape Town City Council for approval prior to the
commencement of
the construction of the balcony. After submission of the plans to the
Council, the first defendant would have been
required in terms of the
said regulations to submit a rational design of the balcony. The
rational design is carried out by a structural
engineer or structural
technician appointed by the owner before the building plans are
approved. That engineer would have had to
undertake a detailed
design, including sizing of the structural members, the load imposed
on the structural members, the fixings
of the balcony to the existing
building and checking that the existing building was capable of
supporting the existing load. Although
minor buildings are exempt
from these requirements, an extension such as the balcony is not
exempt because Regulation A1.3 expressly
provides that:
“
No
person shall erect any building, which is to be supported by an
existing building, or extend an existing building, unless a
professional engineer, or other approved competent person has judged
the existing building to be capable of carrying any additional
load
arising from such erection, or extension, and has in writing so
informed the local authority”.
[13] In
terms of the regulations, on completion of the construction, a
certificate indicating that the building of the balcony complied
with
the design and duly submitted plans, would be issued by the
structural engineer. Furthermore, prior to the occupation of the
first defendant’s balcony and after the work had been carried
out, the first defendant was obliged to obtain an occupancy
certificate from the Council. That certificate is normally issued
after receipt of certain documentation, including a completion
certificate issued by the appointed structural engineer. According to
Mr Rivera, it was the responsibility of the owner of the
property and
all persons and/or entities involved in the construction of the
balcony to ensure that it was built according to a
safe design.
[14] When
asked to comment on the design of the balcony and the manner in which
it was fixed to the wall, Mr Rivera stated that:
(a) The type of fixings
used to secure the balcony, namely, coach screws, were not suitable.
(b) The fixings were
installed too close to the door reveal.
(d) The
calculated tension in the fixings at the top of the handrail on
either side of the door reveal was well in excess of the
recommended
safe load for such fixings even into solid concrete. Furthermore, the
fixings were not into concrete and in most cases
were not even into
brickwork, but into plaster.
(e) It was the tension
force which caused the balcony to collapse. If it had been
constructed with supports, it would not have collapsed.
[15] The
plaintiff next called Mr Cornelius Johannes Moir, a Principal
Building Control Officer employed by the City of Cape Town.
Mr Moir
testified that it was the duty of the owner of the building and the
builder to ensure that plans were submitted to the
Council before the
commencement of construction. He confirmed the earlier testimony of
Mr Rivera that plans and a rational design
for the construction of
the balcony were necessary. According to Mr Moir, the first defendant
had an existing file with the City
Council. After he had perused the
file, he observed that the first defendant had submitted a plan
involving the addition of a second
storey to his dwelling. In that
application, the first defendant had nominated the second defendant
as his agent and Mr Johan Coetzee
as his structural engineer to
oversee the rational design pursuant to the provisions of the
relevant regulations. After objections
from the neighbours, the plan
was eventually approved in 2005. However, with regard to the
construction of the balcony, no such
plans were submitted. Mr Moir’s
evidence merely confirmed what already is common cause.
[16] That
completed the case for the plaintiff.
[17] At
the end of the plaintiff’s case, the first, second, fourth and
fifth defendants brought an application for absolution
from the
instance which was refused.
The defendant’s
case
[18] The
first defendant gave evidence to the effect that he is a semi-retired
businessman and lives with his partner of 24 years,
Mr Du Bruyn. He
first met the second defendant socially through the second
defendant’s wife. In early 2002 he consulted
with first
defendant for the first time as a building contractor when he
intended to carry out major renovations at his home, which
included
building a second storey. The second defendant arranged for plans to
be drawn by a Mr Abrahams on behalf of the first
defendant. The
second defendant undertook to submit the plans to Council for
approval. In November 2002, the first defendant conveyed
to the
second defendant, that he wanted to construct in front of the lounge
a half-moon wooden balcony with balustrades that is
not connected to
the floor. The second defendant informed him that he was not able to
manufacture and install the metal framework
and recommended the
fourth defendant. A few days later, the fourth defendant proceeded
to first defendant’s home to take
the necessary measurements.
The fourth defendant, and Pieter du Bruyn were present at the
meeting. Subsequently, the second defendant
presented a quotation for
the construction of the balcony for an amount of R10 944 (exhibit
“A17”), which the first
defendant accepted on 27 November
2002. The first defendant testified that he received a telephone call
from the fourth defendant
requesting that he inspect the made up
steel frame of the balcony at the fourth defendant’s business
premises. Because he
was at work at the time of the call, he
instructed his partner, Mr Pieter Du Bruyn, to inspect the steel
frame. To his knowledge,
Mr Du Bruyn requested that the supports for
the balustrades be brought together. Subsequently, the balcony was
installed. The first
defendant, however, testified that he was not
present during installation and when he returned from work, he found
that the balcony
was fully installed. After the steel construction
was fitted to the wall, the second defendant attended to the wooden
flooring.
When the work was completed the money for the installation
was paid to the second defendant. The amount included that which was
due to the fourth defendant.
[19] The
first defendant testified that before the installation of the
balcony, he did not make any enquiries as to whether plans
were
necessary, either by asking the second defendant or directing
enquiries to the Council or the structural engineer who he had
commissioned to draw the design for the major renovations or to Mr
Abrahams, who had drawn the original plans.
[20] It
is common cause that the balcony collapsed on 25 April 2004, the day
they had guests to celebrate Mr Du Bryun’s birthday.
The first
defendant confirmed that a car alarm went and the guests went to
investigate. After the collapse of the balcony, the
first defendant
notified his insurance company whereafter he sent a letter to the
second defendant. It is necessary in this judgement
to quote a
portion of its contents:
“
Dear
Melvin
Almost
seven days later and we still have one very seriously injured friend
in hospital.
All
this is because of sub-standard workmanship done on the two
balconies. Last Sunday, the balcony in front of the lounge totally
collapsed with only five people standing on it. The result of this
was that three had ankle injuries – some broken and the
one
friend still in Constantiaberg Medi-Clinic with very serious
complications due to the injuries to the foot and three operations
on
the ankle.
Two
ambulances with emergency personnel worked hard to stabilize the
injured. Everybody had to be taken to hospital for their injuries.
I
dont know if you know that both balconies were installed with plastic
wall plugs. To make matters worse these plugs were only
9 to 10 cm in
length. Surely these plugs were not the correct ones used. What
happened to the rollbolts (metal) that were supposed
to be used?
…
We are shocked and
appauling workmanship, not to the mention the “no care”
attitude from your side. Maybe you must take
a minute or two from
your busy schedule to think about the trauma and hurt you have
caused.
The second defendant
immediately responded and attended at the first defendant’s
home to inspect the damage. He then arranged
for the fourth defendant
to repair the balcony and reinstall it. A similar repair job was done
to the other balcony in front of
the bedroom.
[21] Under
cross-examination the first defendant conceded that although the
second defendant, who was his contractor, did not advise
him to seek
Council approval, but he also considered unnecessary to do so because
the work on the balcony was fairly minimal. When
Mr Corbett put it to
him that he absolutely made no attempt to satisfy himself that this
balcony was going to be constructed in
a safe manner or planning
approval was necessary he replied that:
“
But
I was guided by my contractor, that had knowledge, that should have
told me and say, listen, we need this and that, because
that’s
why I’ve got a contractor that’s got knowledge in that
field where I’m layman. I mean, I know about
pottery and glass
and that, but I don’t know about construction. And while –
Mr Classen said I’m getting a specialist
to come and do the
job”.
According
to the first defendant, the second defendant informed him that he is
contracted out to ABSA Bank and he has a lot of experience
in his
line of work. On this basis, he (the first defendant) did not deem it
necessary to verify that.
[22] With
regard to the rawl bolts mentioned in the first defendant’s
letter, it transpired in cross-examination that the
manner of
installation was discussed by all the parties, and rawl bolts were
considered to support the floating balcony.
[23] In
further cross-examination by Mr Stephens, who appeared for the second
defendant, it was put to the first defendant that
on the day that all
the parties had dinner at the Fishmonger restaurant, the first
defendant and the fourth defendant discussed
the installation of the
balcony, which culminated in the fourth defendant proceeding to the
first defendant’s home to take
measurements the following day.
In fact, the purpose of the dinner was to enable the first defendant
to meet with the fourth defendant
to discuss the details of the
balcony installation. Stated differently, the version of the second
defendant as put to the first
defendant is that the first and fourth
defendants entered into a contract in which they agreed on the terms
of the installation
without the intervention of the second defendant.
The first defendant denied that the second defendant was not involved
in the
installation of the balcony and according to the first
defendant, there were no such discussions as that was a purely social
evening.
[24]
One of the issues that arose in cross-examination is the allegation
by the second defendant that the first defendant instructed
the
fourth respondent in the presence of the second respondent not to
support the balcony by putting pillars but affix it with
a knee
brace. However, the first defendant testified that he did not even
know what a knee brace was until the commencement of
these
proceedings and therefore could not have made such a suggestion.
According to the first defendant, the agreement was with
the second
defendant that is why all payments for the installation were made to
him. Furthermore, the first defendant according
to his evidence was
not even aware of how much the fourth defendant charged for the
installation as the quote was from the second
defendant and did not
specify any amounts due to the fourth defendant.
[25] When
Mr O’Brien, who represented the fourth and fifth defendant
cross-examined the first defendant, it emerged that the
first and
fourth defendants specifically discussed how the half-moon balcony
was to be installed. In that discussion, the first
defendant
indicated that he did not want it to be supported by posts or
pillars. It is common cause that the quotation from the
second
defendant includes the two posts intended to support the balcony, but
the first defendant insisted that it had all times
been his intention
to install a floating balcony without pillar support.
[26] Mr
Pieter Du Bruyn gave evidence in support of the first defendant’s
case. He testified that he was not involved in the
business dealings
between the defendants but was aware that the first defendant wanted
a floating balcony without pillars or columns
to support it. Mr Du
Bruyn recalled being requested by the first defendant to go to the
fourth defendant’s factory in Brackenfell
to inspect the metal
frame of the balcony. He confirms that he merely requested that the
uprights for the balustrade be closer
together but was not present
when the balcony was installed.
[27] The
second defendant is a builder with twenty years experience but has no
formal education in the building industry. He is
on the panel of
approved contractors for ABSA Bank. A large part of his work involves
household repairs on the instruction of ABSA
bank. It is not in
dispute that the second and first defendants have been friends since
1999. In his evidence, the second defendant
confirmed that he was
consulted by the first defendant about major renovations and he
recommended that a certain Mr Abrahams be
appointed to draw the
necessary plans but because there were objections from neighbours,
the first defendant decided to start with
minor renovations in the
meantime.
[28] On
23 November 2002 the second defendant and his wife went to supper at
the first defendant’s home to discuss these renovations.
He was
able to recall the date through an entry made in his diary. After
supper, the second defendant advised the first defendant
that he
could do all the work on the balcony but for the steel frame. He
further advised the first defendant that he (the second
defendant)
knew of a person who would be able to do it and would speak to him.
This person turned out to be the fourth defendant.
The second
defendant then contacted the fourth defendant who came to his home to
view the sketch of the balcony (exhibit “7”).
According
to the second defendant, the fourth defendant agreed that he would be
able to do the job and indicated that his price
would be between R6
000, 00 and R7 000, 00.
[29] On
27 November 2002 the first defendant and his partner, the second
defendant and his wife, and the fourth defendant and his
wife all
went out to dinner at the Fishmonger Restaurant. During the evening,
the first and fourth defendants discussed the balcony
and agreed at a
firm price of R6 500, 00. At the end of the evening, the first
defendant asked the second defendant to include
the amount agreed
upon in his quote stating
“just
put on his quote”
.
However, according to his understanding, the quotes were rough
estimates and never intended to be exact prices. The second defendant
testified that he probably made out the quotations in the early hours
of the 28 November 2002. The quotation reads as follows:
“
Decking
to front
A) Lounge
1. Galv. ½ moon
frame with 1 – 2 Posts (supports)
2. Meranti
timber covering.
3. Galv.
Balustrades with twisted steel cabling.
B Bedroom
1. Galv.
Balustrades with twisted steel cabling to the bedroom balcony.
Amount 9600.00
VAT 1344.00
TOTAL R10
944-00”.
According
to the second defendant, the wording describing the balcony was given
to him by the fourth defendant.
[30] The
second defendant further testified that the same group of people
gathered at the first defendant’s home on 1 December
2002 for a
breakfast or brunch. During that brunch the first and fourth
defendants went downstairs onto the ground floor level
to discuss by
themselves the balcony and for the fourth defendant to take
measurements. At some stage during the brunch, the first
defendant
showed the fourth defendant a balcony in the neighbourhood similar to
that which he wanted installed. Throughout these
discussions, none of
the parties raised the question of plans. However, the second
defendant testified that he did not consider
it necessary for him to
be involved with the planning approval because he did not regard the
balcony as part of his work. But he
was present at the fourth
defendant’s premises when the first defendant’s partner,
Mr Du Bruyn and a friend Nettie
went to inspect the metal framework
of the balcony. However, he was only there because Mr Du Bruyn did
not know the directions
to the fourth defendant ‘s place of
business. Furthermore, he was not present when the balcony was
installed and only arrived
late in the afternoon when it was already
fixed to the walls and the workers were tightening the screws. His
second in command,
Mr John Links, was however on site at the time.
[31] Under
cross-examination the second defendant conceded that, had he regarded
it as his duty, he would have been in a position
to supervise the way
in which the metal frame of the balcony was installed and fixed to
the wall. After the installation, the fourth
defendant requested
money for the balcony. Because he (the fourth defendant) had been
unable to get in touch with first defendant,
the second defendant
telephoned the first defendant and arranged to collect the money,
which he in turn paid to the fourth defendant.
[32] A
second balcony similar to the first one was installed in front of the
bedroom window on the first defendant’s premises.
It was
identical to the one which is now the subject of this judgement.
Again, payment in respect of the second balcony was made
by the first
defendant to the second defendant, who in turn passed it on to the
fourth defendant.
[34] After
the collapse of the balcony and receipt of the fax from the first
defendant, the second defendant proceeded with his
wife to the first
defendant’s home . He told the first defendant that the fourth
defendant was not his sub-contractor but
that he would arrange for
the necessary repairs to be carried out. After this debacle their
friendship ended.
[35] It
will be recalled that the second defendant carried out some repair
and maintenance work for ABSA Bank. He testified that
he had
discussed the court case with ABSA Bank who then advised him that
because he had nothing to do with the installation, his
service on
the ABSA bank panel would be retained.
[36] Mr
John Links gave evidence on behalf of the second defendant. He
testified that at the time the balcony was installed at the
first
defendant’s home, he was working for the second defendant as a
supervisor. He further reconfirmed that during the balcony
installation, a scaffolding belonging to the second defendant was
used. Mr Links conceded that he could not remember the details
of the
installation with clarity because the incident had taken place a long
time ago. In his evidence, Mr Links further conceded
that had he been
present when the balcony was installed he could have been in a
position to supervise the installation and ensure
that rawlbolts were
used instead of couch screws.
[37] The
next witness was Mr Gavin Striker who is a loss adjuster, and was
employed at the instance of Hollard Insurance Company,
the insurers
of the second defendant. He testified that he had interviews with
both second and fourth defendants. During his interview
with the
fourth defendant, he (the fourth defendant) stated that he was not a
subcontractor with the second defendant but had a
direct contact the
first defendant. It emerged from Mr Striker’s evidence that it
was important from the point of view of
Hollard Insurance Company
that the fourth defendant was not a sub-contractor, but the principal
contractor so that it would escape
liability under the insurance
contract.
[38] The
fourth defendant testified on his behalf and on behalf of the fifth
defendant that:
He
is a qualified fitter and turner who has been running his own
business for the past 10 years. He has never manufactured a steel
balcony such as the one in question. The second defendant met Mr Du
Bruyn and the first defendant through the second defendant.
The
second defendant brought the first defendant and his partner Mr Du
Bruyn to the fourth defendant’s home where they had
a few
drinks and later dinner at the Fishmonger Restaurant in Stellenbosch.
According to his evidence, this was a social gathering
and no
business was discussed. According to the defendant, they left the
restaurant quite late. At the Fishmonger, it was agreed
by their
wives and Mr Du Bruyn that they gather the following morning at the
first defendant’s home for brunch on Sunday
the 1
st
of December 2002. This too was a social gathering and there was no
discussion about the balcony installation.
[39] A
few days later, perhaps, a Monday or Tuesday, the fourth defendant
met with the first and second defendants at the premises
where fourth
defendant took measurements . Discussions took place as to what the
balcony should look like and the first defendant
pointed out to the
fourth and second defendants a balcony some distance higher up the
mountain to the rear of the property with
similar balustrades. The
fourth defendant then went back to his business premises and obtained
quotes for making roll top rail
and also for the steel. After adding
on profit for himself he gave the first defendant a firm quotation of
an amount of R6500,
00. He confirmed in his evidence the description
of the balcony he was to manufacture as set out in exhibit “A17”
(the
quotation referred to above). On arrival at his workshop, he
sketched the drawings of the steel structure with two support posts.
The drawing was for his own use.
[40] The
fourth defendant testified that the second defendant telephoned him
and said he should go ahead and manufacture the balcony.
Once the
manufacture was complete and the steel work was ready for
galvanising, the fourth defendant telephoned the first defendant
and
requested him to view the balcony. The second defendant, Mr Du Bryun
and one Nettie arrived at the fourth defendant’s
premises to
view the balcony. When the balcony was ready for installation, the
fourth defendant telephoned the second defendant
and informed him.
When the fourth defendant arrived on site to install it the second
defendant was not there but arrived later.
The first defendant was
however on site. The fourth defendant supervised the installation of
the balcony by three of his workers.
The second defendant’s
workers were also on site and helped the fourth defendant hoist the
balcony up over the front wall
onto the first level of the property
as well as with the putting up of the scaffolding.
[41] When
the holes were drilled into the wall in order to fix the balcony, the
fourth defendant noticed that the brickwork was
very powdery. He
showed this to first defendant and advised him that if he used
rawlbolts the brickwork would crack. The first
defendant suggested
that he should use something that would not damage the brickwork. It
is for that reason that he used the coach
screws to secure the
balcony to the wall. At that stage the balcony was still supported by
the scaffolding and it was time to put
up the metal support posts,
which had been brought to support it. The fourth defendant testified
that he did not put up the metal
supports because the first defendant
informed him that he did not want metal supports to be fixed to the
floor as the floor had
recently been tiled and that would affect
access to the wine cellar underneath the balcony. The first defendant
then asked whether
or not the post could rather be put up at an angle
to the wall. The fourth defendant testified that he replied and said
that he
was not in favour of this suggestion as such as a knee brace
would not be adequate support. According to the defendant, the second
defendant was present during this discussion about the supports and
suggested that he (the fourth defendant) should do what the
client
wanted. One of the posts was then cut down and used as knee brace and
the other taken back to the fourth defendant’s
workshop. Later
the balustrades were fitted into the balcony. About one and a half to
two months later, the second balcony was
installed for the same price
and according to a similar design.
[42] After
the fourth defendant was informed that the balcony had collapsed, he
refitted the balcony and carried out repairs on
the second balcony as
well. After the proceedings had commenced the second and fourth
defendants discussed the matter. As they
had been friends for a long
time, the second defendant asked the fourth defendant not disclose
that he was his sub-contractor.
The fourth defendant’s response
was that the first defendant would deny that the fourth defendant was
not a sub-contractor
but the second defendant dismissed this concern
by stating that that would not matter. At that stage the summons had
not yet been
served on the fourth defendant. A few days later, the
second defendant arranged for the fourth defendant to meet with Mr
Striker.
Mr Striker asked him to help “
and
to get Melvin off”
and
say that he was not his sub-contractor. He could not remember what he
told Mr Striker However, later after the fourth defendant
had spoken
to Mr Striker, summons were served on him and he became a party to
the litigation. The fourth defendant denied that
he had any direct
dealings with first defendant. He stated that he was a sub-contractor
to the second defendant for the manufacture
and installation of the
balcony and that all payments received were made via the second
defendant.
[43] The
fourth defendant called Mr Sandile Nazo who testified that at the
time of the construction of the balcony he worked for
the fourth
defendant as a labourer and assisted with the installation. According
to Mr Nazo, both the first and second defendant
were present at the
premises when the balcony was installed. They brought with them two
metal supports which were going to be used
for the balcony. However,
such supports were not used and one was cut down to make the knee
brace. During the installation of the
balcony the second defendant
gave instructions and also discussed matters with the fourth
defendant.
[44] That
brought to an end all the defendant’s cases. I now turn to
consider the applicable law.
THE ISSUES
On all of this evidence,
the relevant issues are the following:
Were the defendants
negligent?
Did the fourth defendant
act as a subcontractor to the second and or third defendant.
Was the contract for the
installation of the half-moon balcony between the first and the
fourth and fifth defendant?
THE LAW
[45] It
is trite law that liability for negligence only arises if a
reasonable person in the position of the defendant:
1. would foresee the
reasonable possibility of his conduct injuring another person and
property causing him patrimonial loss; and
2. would take reasonable
steps to guard against such occurrence; and
3. failed to take such
steps.
(See
Neethling Potgiter Visser,
The
Law of Delict
, 4
th
edition, p 128 to 129 and
Kruger
v Coetzee
1966 (2) SA 428
(A))
THE LIABILITY OF THE
FIRST DEFENDANT
[46] Mr
P. Corbett, who appeared on behalf of the plaintiffs, argued that the
first defendant was negligent on the basis that firstly,
he failed in
his statutory duties to submit plans for approval to the Cape Town
City Council, which plans would, on the evidence,
have included a
rational design by a structural engineer or technician. Secondly he
was negligent in causing or permitting that
the balcony to be
constructed without regard to its structural integrity, thereby
rendering it unsafe for visitors such as the
plaintiffs by insisting
that vertical support posts should not be used. Mr Sawma, who
represented the first defendant, on the other
hand submitted, relying
on the dictum in
Savage and
Lovemore Mining v International Shipping Co (Pty) Ltd
1987
(2) SA 149
(WLD) at 210E – 211that in applying the principles
of negligence, due cognizance must given to the acceptance in our
law,
of the principle that mere ignorance does not constitute
negligence. Furthermore, such ignorance gives rise to negligence only
where a person undertakes an activity for which expert knowledge is
required while such person knows or should reasonably know that
he or
she lacks the requisite expert knowledge for such activity. In
addition, an error of law made by a person, as is the case
with an
error of fact excludes an inference of negligence where it shown that
the person making such error acted bona fide, and
that the error was
reasonable. Moreover, it is a general principle of our law that an
employer is not liable for the negligence
or the wrongdoing of an
independent contractor employed by him or her save where the employer
has personally been at fault in some
form or fashion in regard to the
conduct of such independent contractor, which has in turn caused harm
to another.
[47] I
now turn to consider whether the failure to submit plans for approval
on the part of the first defendant constitutes negligence.
The
first defendant’s breach of a statutory duty
[48] It
is common cause in the instant matter that the first defendant did
not submit the building plans for approval to the Cape
Town City
Council. The first defendant testified that neither himself nor his
partner Mr Du Bruin were aware of the fact that plans
were required
to be submitted in terms of the regulations, nor were they aware of
the prerequisites of the regulatory provisions
that the first
defendant needed to submit rational designs, as contemplated by the
legislation. The first defendant claims that
he relied on the second
defendant as the main contractor to advise him on these matters. The
question therefore is whether the
error is bona fide.
[49] The
evidence established that the first defendant had previously made an
application to the local authority for the approval
of building plans
for a second storey in his premises. His neighbours objected. Whilst
the application was pending before the Council,
the first defendant
decided to commence with the installation of the balconies. According
to his evidence because the work was
minor, he did not think it was
necessary to seek Council approval. In short, the first defendant was
not a novice when it comes
to buildings. Even if he were, he or any
layman for that matter was obliged before commencing with any
renovations to first consider
building legislation as well as the
impact the intended alterations will have on his neighbours. Mr
Corbett correctly submitted
that the decision in
Savage
and Lovemore
upon which the
defendant relies for the proposition that a breach of a statutory
duty cannot amount to negligence does not support
this contention. In
the same decision the Court pointed out at page 210 E – 211 B
that:
It
is expected of anyone who engages in a filed of activity governed by
statutory provisions to keep himself abreast of the statutory
provisions relevant thereto: S v De Blom…
A
failure on the part of such person to acquaint himself with the
statutory provisions governing his activity would prima facie
establish negligence on his part. However he cannot be said to have
an absolute duty to know the provisions precisely and to interpret
them correctly S v Wandrag
1970 (3) SA 151
(O) at 160B-C contains the
suggestion that a reasonable man doing business in the building
industry would go to the relevant government
department to find out
what statutory provisions he needed to comply with, and would see
that he does not misunderstand the information
there given to him.
That indicates that the reasonable man, at least in that situation is
not necessarily expected to acquire and
study his own copy of the
relevant Act and regulations or consult a lawyer about the
interpretation thereof. However, depending
upon the particular facts
of the case, due care may require of him that he consults with his
own sources. The government department
which he approaches is not
necessarily obliged to help him solve his problems, particularly if
what he needs is a general understanding
of the legal position
governing his occupation. Where the guidance he needs relates to
administrative procedures to be complied
with, and a government
official of sufficient seniority to be responsible is prepared to
guide him, there is no reason why the
reasonable man should not rely
on such guidance (provided of course that he has duly disclosed all
the relevant facts of the matter
to the official. The test to be
applied is simply to ask whether the conduct of the person alleged
to have been negligent in his
failure to know the relevant statutory
provision fell short of the standard of care to be expected of the
reasonable man or bonus
paterfamilias.
…
It is to the effect
that in the case of an error of law, no less than the error of fact,
the inference of negligence on the part
of the person who made the
error would be excluded if it is shown that such person acted bona
fidei and that the error was reasonable”.
[50] The
Court in the
Savage and
Lovemore
decision found
that Gardner was
bona fidei
and reasonable having regard to the following:
1. Gardner’s
conduct in seeking and relying upon the guidance of senior officials
engaged in the administration of import
permits rather than
consulting a lawyer or reading and interpreting the Act did not fall
short of what is expected of the reasonable
man;
2. the incorrect
information was used with the knowledge and concurrence of
responsible officials within the department;
3. Gardner erred in
believing that there was nothing unlawful about the use of such
permits; and’
4. that
the same error was made by a number of other responsible persons
within the department.
It
is clear from the Savage decision that the first defendant was
expected to acquaint himself with the relevant statutory provisions
governing building works. However, the evidence establishes that he
did not make any enquiries with regard to what his obligations
were
despite having access to Mr Abrahams who had drawn a plan for his
major renovations. Similarly, he had also appointed a structural
engineer Mr Coetzee to draw the necessary details, and could have
easily ascertained what his obligations were in terms of the
law.
Lastly, he could have enquired from the second defendant or fourth
defendant but chose not to do so. The law cannot protect
defendants
who deliberately choose not to know.
[51] Mr
Corbett further submitted and I agree, that the
Savage
decision is wholly distinguishable from the present matter on the
following grounds:
1. the
incorrect permit was used with the knowledge and concurrence of
responsible officials within the department;
2. Gardner
erred in believing that there was nothing unlawful about the use of
such permits; and
3. the same error of law
was made by a number of other responsible persons within the
department.
[52] The
omission by the first defendant is the cause of the harm suffered by
the plaintiffs. It is clear that had the relevant
application been
lodged with the City Council, a structural engineer would have made
recommendations on how the balcony could have
be securely fixed to
the wall, and in turn, the probabilities are that it would not have
collapsed in the manner in which it did.
In the words of Mr Rivera if
a plan had been submitted:
“
a competent
person should have been appointed to design it, and such a competent
person would either be a structural engineer or
somebody accepted by
the municipality, and basically that somebody who is either a
registered professional engineer or registered
professional
technician, registered with the Engineering Council of South Africa
basically. Having done so, that engineer would
have to undertake a
detailed design, including the sizing of the structural members, the
loads imposed on the structural members,
the fixings of the balcony
to the existing building, checking that the existing building was
capable of supporting loads and all
of those kinds of things that
would normally come into the structural design of a building
element.”
Furthermore,
it can be safely assumed that the structural engineer would have been
able to advise the number of people the balcony
could accommodate at
a given time. For all of the above reasons and on this ground alone,
I find that the first defendant was negligent
in his failure to
comply with the statutory requirements and that a reasonable man in
his position would have made the necessary
enquiries before
commencing with balcony installation.
[53] The
second leg of the alleged negligence on the part of the first
defendant is that he caused the balcony to be constructed
without
regard to its structural integrity, by insisting that vertical
support posts should not be used when regard is had to the
fourth
defendant’s evidence. The fourth defendant testified that his
design of the balcony included installation of two support
posts.
Even though I have indicated in this judgement, that the fourth
defendant admitted that he lied to Mr Striker by stating
that he was
not a sub-contractor to the second defendant, his evidence regarding
the installation is acceptable. The first defendant
struck me as an
honest, dependable and trustworthy witness. He gave his evidence in a
clear unambiguous manner and withstood lengthy
cross-examination
despite being an elderly gentleman. However, when it came to the
issue of installation and use of rawlbolts,
my view is that he became
evasive and conveniently did not remember whether there was a
discussion with regard to the installation
whilst not denying that he
was advised by the fourth defendant that the wall was brittle and was
ill-equipped for use of rawl bolts.
The first defendant admits having
a discussion with the fourth defendant involving the use rawl bolts.
The fact that the fourth
defendant arrived with two support posts but
cut and used one as a knee brace lends credence to a very strong
probability that
the first defendant did influence the manner in
which the balcony was eventually secured to the wall. Otherwise, how
else would
the fourth defendant have known that the two posts if
installed would hinder entrance to the wine cellar and damage tiling
work
that had been recently effected? The probabilities favour a
finding that the first defendant did suggest to the fourth defendant
that vertical posts should not be used and in that way caused the
balcony to be constructed without regard to its structural integrity
and therefore negligent.
[54] I
now proceed to consider whether the fourth defendant was the second
defendant’s subcontractor.
Was the second
defendant the main contractor?
[55] The
legal basis for negligence against the second defendant is based on
the claim by the first defendant that he was the main
contractor.
The
general rule of our law is that an employer is not responsible for
the negligence or the wrongdoing of an independent contractor
utilised by him/her unless the employer himself/herself has been
negligent in regard to the conduct of the independent contractor.
(See
Colonial Mutual Life
Assurance Society Ltd v Macdonald
1931
AD 412
AT 431-432).
Goldstone
AJA, in
Langley Fox Building
Partnership (Pty) Ltd v De Valence
1991 (1) SA 1
at 11 1 stated:
‘
Whether the
circumstances demand the exercise of care will depend upon proof that
the employer owed the plaintiff a duty of care
and that the damage
suffered was not too remote.’
After
discussing
Peri-Urban Areas
Health Board v Munarin
1965
(3) SA 367
(A), a case which concerned the liability of the employer
of an independent contractor for damages arising from the death of a
third party who was injured in consequence of dangerous operations
performed by the contractor, Goldstone AJA, in
Langley
Fox
at 12 H-J, came to the
following conclusion:
‘
[I]n a case such
as the present, there are three broad questions which must be asked,
viz:
(1) would a reasonable
man have foreseen the risk of danger in consequence of the work he
employed the contractor to perform? If
so,
(2) would a reasonable
man have taken steps to guard against the danger? If so,
(3) were such steps duly
taken in the case in question?’
If
the answers to the first two questions are in the affirmative a legal
duty arises, the failure to comply with which can form
the basis of
liability.
[56] Accordingly,
the relevant issues pertaining to the second and or third defendant
can be formulated as follows:
1. Was
the second or third defendant the main contractor in respect of the
balcony?
2. If
so, was the second or third defendant’s conduct causally
negligently in relation to the harm suffered to the plaintiff?
[57] In
order to answer the two questions above, it is necessary to refer to
the contractual position of the parties as they appear
in the
pleadings. The first defendant avers that he had a contract with the
second or third defendant for the manufacture and installation
of the
balcony in question. The second and third defendants deny the
existence of such a contract. Accordingly, the onus rests
upon the
first defendant to prove it. With regard to the existence of the
contract, the oral evidence of the various witnesses
called by the
parties has resulted in irreconcilable versions. In order to come to
a conclusion on the disputed issues it is necessary
to adopt the
approach set out by Nienaber JA in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others
2003 (1) SA 11
SCA:
“
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, to, on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by the courts in resolving factual
disputes of this nature may conveniently be summarised as follows. To
come to the conclusion on the disputed issues a court must
make
findings on (a) the credibility of various witnesses; (b) their
reliability; and (c) the probabilities. As to (a) the court’s
findings on the credibility of a particular witness will depend on
its impression about the veracity of the witness. That in turn
will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’ candour
and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external
contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements or actions,
(v) the probability
or improbability of particular aspects of his version, (vii) the
calibre and cogency of his performance compared
to that of other
witnesses testifying about the same incident or events. As to (b), a
witness’s reliability will depend,
apart from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the
event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis
and evaluation of
the probability or improbability of each party’s version on
each of the disputed issues. In the light of
its assessment of (a),
(b) and (c) the court will then, as a final step, determine whether
the party burdened with the onus of
proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one,
occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general probabilities in another.
The more convincing the former,
the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.”
[58] Mr
Stephens, who appeared on behalf of the second and third defendants,
submitted that the first defendant failed to discharge
the onus of
proving the contract with first defendant. This is so because the
second defendant was not in charge of the manufacturing
and
installation of the balcony. According to the second defendant, the
contract to manufacture and install the balcony was between
the first
and fourth defendant. Because the first and second defendant had been
friends for years, he merely acted as conduit pipe
for the passing of
payments to the fourth defendant. In those instances where he may
have made an input on the installation of
the balcony, it was on the
basis of the friendship of the parties, not because he was
contractually bound to do so. In order to
properly apply the approach
set out by Nienaber JA in the
Stellenbosh
Farmers Winery
case, it
becomes necessary to revisit the version put by the second defendant.
[59] The
second defendant’s version is that he attended a dinner party
at the home of the first defendant on 23 November 2002
when the issue
of the balcony, among other requirements was discussed. Both the
first and the second defendant are in agreement
that the latter had
already stated at that dinner that a specialist would need to be
called in order to manufacture and install
the balcony. Indeed it was
on this occasion that a rough sketch was prepared by Mr Du Bruin. The
second defendant informed the
first defendant that the fourth
defendant Mr Don Lamberts was the right man for the job. The second
defendant further testified
that based on his experience as a
builder, he was able to give to the fourth defendant rough
measurements when he discussed the
matter with him a day or two after
the 23
rd
of November 2002. According to the second defendant and in the course
of that discussion, the fourth defendant indicated that the
price for
the manufacture and subsequent installation would be between R6000,00
and R7000,00. The second defendant further testified
that a supper
engagement was arranged for the 27
th
November 2002 at the Fishmonger restaurant. The purpose of the
supper, according to the second defendant was for the first defendant
to meet with the fourth defendant and directly discuss with him in
detail the manufacture and installation of the said balcony.
At the
end of the supper, the first defendant informed the second defendant
that they had agreed on a price of R6500.00. The first
defendant
asked the second defendant to put the quoted amount on his existing
quote for the minor improvements he was to effect
on the first
defendant’s premise. This evidence should be viewed against the
backdrop of the fourth defendant who testified
that the supper was
merely a social event and business was discussed.
[60] Upon
closer scrutiny of the evidence given by the second defendant, it
became clear that he was not forthright and honest to
the Court. He
was quick to change his version depending on the direction the wind
was flowing. For example, initially he sought
to distance himself
from the fact he utilised subcontractors, e.g., electrician and
carpenters. This is in stark contract to the
testimony of his
witness, Mr Links. When faced with entries in his diary dated 22
January 2003 (exhibit A“52”), reflecting
subcontracting
Trevor, an electrician, he was forced to concede that occasionally he
engaged services of a subcontractor, despite
his firm evidence in
chief to the contrary. The second defendant’s basis for denying
that he subcontracts was that he could
not sub-contract work he could
not supervise, he was once more forced to conceded that it is
precisely work that one cannot render
that one sub-contracts out. The
impression he gave was that he sought to distance himself from
anything to do with subcontracting,
whereas his very letterheads
offer work that he himself cannot render and has to sub-contract.
[61] Another
factor which casts serious aspersions on the second defendant as a
worthy witness is that his version is that he was
at all times during
these negotiations merely helping out a friend and was not part of
the contract. This aspect of his evidence
strikes a discordant note
because he later testified that he would never allow any of his
workers to assist the fourth defendant
and would fire them if they
did. Although this version is unconvincingly echoed by Mr Links, his
supervisor, the evidence establishes
that his workers did assist the
fourth defendant with putting up of the scaffolding and they were not
fired. In addition, the second
defendant’s version put to the
first defendant’s witnesses was that the second defendant would
contend that he drew
up the quote in question on the evening of 27
th
November 2002. However, when the first and defendant and Mr Du Bruin
testified that that could not be the case in consequence of
the late
hour upon which the dinner at the Fishmonger terminated, he was quick
to tailor his version by stating that it could have
been at the early
hours of the morning of the 28
th
November 2002, contending that he is workaholic. Strangely, the
second defendant could not explain why the quote was dated the
27
th
November if it was made on the 28
th
.November.
The second defendant did not make a good impression as a witness.
[62] The
rest of the second defendant’s testimony is riddled with
mutations of his evidence resulting in a new version coming
up with
each question. When asked why the payment for the balcony
installation was tendered to him, he testified that the reason
was
that the fourth defendant could not get hold of the first defendant
telephonically and therefore he took it upon himself to
contact the
first defendant. Miraculously, the second defendant managed to get
hold of the first defendant. He did not tell him
that his contractor
was looking for him. Instead he made arrangements to collect the
money and pass it on. When asked by the Court
why the fourth
defendant could not leave a message with the first defendant’s
secretary, the second defendant once again
tailored his evidence and
stated that he also had problems reaching the first defended but he
persisted. Why would a the second
defendant as a person not
contracted to the first defendant be that persistent in ensuring that
he eventually got hold of him?
[63]
I think it would be cumbersome in this judgement to detail every
inconsistency, contradiction and variation in the second
defendant’s
testimony, but I have indicated earlier on that his evidence under
cross-examination is riddled with same. Besides
the unreliability of
the second defendant as a witness, the evidence establishes with
certainty that he at all times conducted
himself as the main
contractor to the fourth defendant. The following facts bear
testimony to that fact:
1. The second defendant
was requested to quote for all the work including the steel balcony
and no separate price was stipulated
for the balcony, but it was
simply included in the globular amount for the whole quotation.
2. All
payments in respect of the work rendered by the fourth defendant were
made by the first defendant to the second defendant
who paid the
fourth defendant his share. The same modus operandi was adopted in
respect of the second balcony.
3. After
the collapse of the balcony, the first defendant wrote to the second
defendant complaining about his laissez-fair attitude
to his
predicament. The first defendant did not ask why the complaints were
addressed to him as he had nothing to do with the balcony
installation; instead he promptly proceeded to the first defendant’s
home and made arrangements with the fourth defendant
to immediately
repair the balcony.
4. It
is improbable that the fifth defendant would have given a quote or
agreed to a price prior to have taken measurements
5. Although
the fifth defendant admitted being untruthful with regard to the
information he gave to Mr Striker to the effect that
he was not the
second defendant’s subcontractor, it can be accepted that at
the time he had not yet been joined as a party
to these proceedings
and did not realise the impact of his lying to protect the second
defendant. This aspect of the fifth defendant’s
testimony is
plausible.
[64] In
my view, for the above reasons, the first defendant has discharged
the onus of proving that the second defendant was the
main
contractor.
[65] Having
found that the second defendant was the main contractor, I proceed to
consider if any negligence can be attributable
to him. Like all
construction contracts, it is implied by law that the contractor is
to execute the work, first, in a proper and
workmanlike manner and,
secondly, the materials used must be of sound quality and fit for
their designated purpose. (See
LAWSA
2 part 1 at 474 and
Colin
v De Guisti
1975 (4) SA 223
(NC)). In the present case, the evidence reveals that the second
defendant is an experienced builder. He, more than anyone should
have
known that Council approval was necessary before a structure such as
a balcony is installed. As the main contractor, he had
a duty to
investigate and advise the first defendant that he was not prepared
to even consider rendering the services without the
parties complying
with the enabling regulations and legislation. Applying the test
enunciated in the
Langley
Fox
judgment, I have come
to the conclusion that
he
should have foreseen the risk of danger in consequence of the work he
employed the contractor to perform without Council approval.
Similarly, he was in a position to take steps to guard against the
danger and he did not take the steps in question. Thus, he was
negligent. Had the second defendant performed his work in a
professional manner, an engineer or structural technician would have
been appointed to advise on the material to be used and the manner in
which the balcony should have been fixed to the existing
structure.
Instead, he agreed to change the design of the balcony and the
installation without vertical supports. This was done
in
circumstances in which he knew or ought to have known, that only
coach screws were used to secure the balcony to the wall. Even
if it
he did not know that coach screws were used, as the main contractor,
he ought to have enquired from the sub-contractor. That
is what a
reasonable builder would have done in the circumstances. As the
principal contractor, he is liable for the clearly negligent
conduct
of his sub-contractor.
[66] At
this point, I turn to consider whether the fourth defendant was
negligent.
Was the fourth
defendant negligent?
[67]
It is common cause that the fourth defendant was responsible for the
manufacture and installation of the balcony. A reading
of the
national building regulations (A1 APPLICATION section 3) provides
that:
“
No
person shall erect any building which is to be supported by an
existing building which is to be supported by an existing building
or
an extend an existing building unless a professional engineer or
other approved competent person has judged the existing building
to
be capable of carrying any additional load arising from such erection
or extension and has, in writing, so informed the local
authority.”
The
regulations further give direction with regard to structural
steelwork and provide that:
“
3. The
documentation for structural steelwork shall, to the extent required
by the local authority, show-
The grades of steel of
all members;
Details of connection
between members; and
Details of the
corrosions protection to the steel structure
[68] With
regard to the quality of the fourth defendant’s evidence as
well as his demeanour, it can be said that he was not
a good witness
at all. Initially he was untruthful about the statement he made to Mr
Striker and led the Court to believe that
he did not read it. In his
own words under-cross-examination by Mr Sawma with regard to what he
told Mr Striker he stated that:
“
What I said on
that day, I might have, I might have not --- the exact wording I
cant’ remember, but he jotted down what I
said. I don’t
know what he put in there. He never read it back to me. After two,
three weeks, Mr Stewart came to see me.
And he also took notes from
me and then he went away and he faxed me through a __this document
that we’ve been looking at
in 17, I don’t know.”
However,
it later transpired that after reading the statement, he faxed a copy
to the second defendant. Furthermore, he admitted
that he lied to Mr
Striker to protect the second defendant. However, not all of his
evidence can be discounted as untrue. For instance,
his undisputed
evidence that he initially intended to support the balcony with two
posts is plausible when regard is had to the
fact that on the day of
installation he arrived with those posts and cut one using it as knee
brace. It can be accepted that there
were discussions with the first
defendant with regard to the quality of the wall and the damaging
effect that the rawl bolts would
have on it.
[69] The
salient features of the fourth defendant’s evidence are that:
1. Despite
realising that the wall of the building on which the balcony was to
be fixed was brittle, he nevertheless continued installing
the
balcony by using the inappropriate coach screws. This he did because
the first defendant insisted that he did not want the
bricks of the
house to be damaged by the use of rawl bolts. He was aware of the
shortcomings of installing the balcony without
proper support.
2. The fourth defendant
failed to make enquiries in regard to whether or not the methods he
utilised would serve the purpose of
safely securing the balcony.
3. The
evidence sufficiently establishes that he installed the balcony
without due regard to the regulatory requirements applicable
to
steelworks.
4. The
collapse of the balcony is entirely due the deficient workmanship of
the fourth defendant. Apart from the defective workmanship,
he failed
to ensure that plans and the rational design were submitted to the
City Council before commencing with the work.
[70] In
a joint minute, accepted as exhibit “D”, Mr Abrahams and
Rivera set out the following reasons for the collapse
of the balcony:
“
1. Type of
fixings used to secure balcony were not suitable for application.
2. Fixings were
installed too close to the edges of the opening on all three sides.
3. The loading for
which the balcony should have been designed in accordance with SABS
0160 is 4.0 kn/m2.
4. The calculated
tension in the two top fixings in accordance with the above loading
is well in excess of the recommended safe
loads for such fixings in
solid concrete.
5. The manufacturers
of fixings do not give recommended loads for such fixings in
brickwork due to the large range of scatter of
test results.
6. In
this case the fixings were not into concrete, and in most cases not
even in brickwork.
7. Drawings
should have been to the local authority to the local authority for
approval.
8. An approved
competent person should have been appointed to undertake the rational
design structure.
[71] None
of the concerns raised above were disputed by the fourth defendant.
In fact, he conceded that he had serious concerns
about the safety of
the balcony in the light of the brittle walls and absence of vertical
support it and could not guarantee its
safety. In my view, where a
contractor knowingly performs work likely to cause danger and despite
this knowledge succumbs to the
pressure from the employer to bypass
the requisite prescripts, he cannot avoid liability or claim
indemnity on the basis that he
was acting on the instructions of the
owner. He is after all the one with the expertise. Despite knowing
that the balcony was likely
to be unsafe, the fourth defendant
succumbed to the pressure from the first defendant and abandoned the
use of vertical supports.
As a professional, he simply should have
refused installing the balcony in circumstances where its safety was
compromised. However,
that is not his only display of play
negligence. The use of couch screws in order to avoid damaging the
wall of the building was
negligent in the extreme.
[72]
In my opinion, and applying the
Langley
Fox
judgement, it follows
from the aforegoing that the fourth defendant foresaw the risk of
danger in consequence of the work he employed
to contract and failed
to take such steps to guard against the danger to prevent harm to the
plaintiffs and judgment, is directly
liable for the damages and pure
economic loss sustained by the plaintiffs. Again, apart from the
defective workmanship, the fourth
and fifth defendants were also
negligent in failing to ensure that plans and the rational design
were submitted to the City Council
prior to commencement of the work.
It is my judgement therefore that for all the above reasons, it is
clear that the fourth defendant
was negligent.
THE
VICARIOUS LIABILITY OF THE THIRD AND FIFTH EDEFENDANT
[73] I
indicated earlier on in this judgement that the third and fifth
defendants are vehicles through which the second and fourth
defendants conduct their business respectively. This is not disputed.
I have found that the second and fourth defendants are personally
liable in delict for their own negligence. With regard to the second
defendant there is no doubt in my mind that he was acting
in his
capacity as the director of the third defendant. This was not in
dispute during the trial. Furthermore, the quotation for
the work
done was issued in the name of the third defendant, thereby
establishing a relationship between the second and third defendants.
It follows that by virtue of such a relationship, the third defendant
is indirectly liable for the delict committed by the second
defendant.
[74] With
regard to the fifth defendant, Mr O’Brien submitted that the
fourth defendant contracted with third defendant in
his personal
capacity but as a member of the fifth defendant close corporation and
is for that reason not liable in his personal
capacity but only as
the fifth defendant. The fourth defendant should therefore be
absolved. When examined by Mr O’Brien
he stated that he
started the fifth defendant in 1999 and is its sole director.
However, it is clear from the evidence that fourth
defendant is
personally liable in delict. In my judgement, the third and fifth
defendants are vicariously liable for the conduct
of second and
fourth defendants’ delictual conduct.
[75] Finally,
the fifth defendant pleaded in the alternative that plaintiffs were
negligent by occupying a balcony which was not
adequately supported
or by standing on an overcrowded balcony not intended to support the
additional weight occasioned by its over-crowding.
I must from the
outset hold that this submission has no basis. Had the rational plans
and design been obtained by either of the
defendants, an engineer
would have been a position to advise the amount of weight the balcony
could carry.
THE DIVISIBILITY OF
DAMAGES
[76] The
defendants requested the court make a Declaratory Order relating to
the degrees of fault of individual defendants. The
plaintiff on the
other hand submitted that the harm suffered by the plaintiffs is
indivisible and each of the defendants is liable
for the whole of the
damage (
in solidium
).
Section 2(1) of the Apportionment of Damages Act 34 of 1956 provides
that joint wrongdoers are in solidium liable to the plaintiff
for the
full damage and the Court may order that they jointly and severally
liable and that the payment from one of them may absolve
the others
from liability to the plaintiff. However, a Court may, if it is
satisfied that all wrongdoers are before it, apportion
the damages
among them on the basis of their relative degrees of fault, and may
give judgement against the wrongdoer for his part
of the damages.
(See Neethling, Potgieter, Visser, Law of Delict, Fourth edition at
page 270).
[77] It
should be remembered that in this judgement, the liability of the
third and fourth defendant is vicarious. It is therefore
almost
impossible to determine to what extent each of the defendants are
liable. Suffice to say that each joint wrongdoer is liable
to the
plaintiffs to the full amount of their damages.
CONCLUSION
[78] I
have in this judgement held that all the defendants were negligent in
causing the balcony to be installed without the approval
of the
Council and the rational design by a structural engineer. Similarly,
all the defendants by installing the balcony without
regard to its
structural integrity were negligent. The negligence caused the
balcony to collapse injuring both plaintiffs. In respect
of the
second and third defendant, it is the finding of this court that he
was the main contractor. It is my conclusion therefore
that all the
defendants are jointly and severally liable to the plaintiff.
ORDER
[79] In
consequence of the above the following order will issue:
1. Judgement
is hereby granted in favour of the plaintiffs and that the first,
second, third, fourth and fifth defendants are liable
jointly and
severally for such damages the plaintiff may prove to have suffered
as a result of the collapse of the balcony.
2. Costs of suit
including:
Qualifying
expenses of the plaintiff’s expert witness, Mr. Rivera
Costs
of the application for absolution from the instance.
NDITA;J
52