Newstadt v H Amm (Pty) Ltd (1) (A153/2005) [2006] ZAFSHC 59 (14 December 2006)

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[2006] ZAFSHC 59
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Newstadt v H Amm (Pty) Ltd (1) (A153/2005) [2006] ZAFSHC 59 (14 December 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: A153/2005
In
the matter between:
ALLAN
HENRY NEWSTADT
Appellant
and
H
AMM (PTY) LTD
Respondent
_____________________________________________________
CORAM:
CILLIé J,
et
EBRAHIM, J
et
VAN
DER MERWE, J
_____________________________________________________
JUDGMENT
BY:
CILLIé, J
_____________________________________________________
HEARD
ON:
21 AUGUST 2006
_____________________________________________________
DELIVERED
ON:
14 DECEMBER 2006
_____________________________________________________
[1] I have read the
judgment of Ebrahim J and agree that the appeal must fail. However,
I prefer to dismiss the appeal for somewhat
different reasons. As
the outcome remains the same I find it unnecessary to deal with these
reasons in the same detail as would
otherwise have been the case. I
also find it unnecessary to set out the background of the dispute as
it is sufficiently detailed
in the judgment of Ebrahim J.
[3] The court
a quo
considered the appellant’s claim on the basis that it was
contractual. The particulars of claim however are in this regard all
but an example of clarity.
[4] In paragraph 3 of the
particulars of claim the conclusion of a verbal agreement between the
parties is alleged. The terms thereof
are also set out in the
particulars of claim although not as detailed as would be expected.
However it is alleged in paragraph 4
of the particulars of claim that
the respondent undertook to supply all the necessary ladders for the
performance of applicant’s
work.
[5] Contrary to this it
is alleged in paragraph 7 and further of the particulars of claim
that an employee of the respondent in the
course and scope of his
employment, acted negligently, thereby causing the appellants alleged
injuries and subsequent damages. The
grounds of the alleged
negligence is then set out in detail. The nature of the damages
allegedly sustained is typical delictual.
[6] In paragraph 3 of his
plea the respondent denies the existence of any agreement as alleged.
In paragraph 5.2 thereof the alleged
negligence is denied. This is
understandable as the respondent is after all required to plead on
all the allegations in the particulars
of claim including the alleged
negligence referred to above. The respondent however did not content
with this. An elaborate alternative
plea of contributory negligence
is raised fully setting out the grounds of the appellant’s alleged
contributory negligence. The
prayer concluding the plea prays for
the dismissal of appellant’s claim alternatively diminishing it as
provided for in the Apportionment
of Damages Act Nr. 34 of 1956.
[7] All of this lead Mr.
Kemp, for the appellant, to submit that the appellant’s claim was
in essence one of delict and not of contract.
He emphasises that
contributory negligence cannot be raised as a defence to a
contractual claim. That justifies the assumption,
so the argument
ran, that the respondent throughout understood this to be a claim in
delict. Mr. Kemp submitted that the court
a quo
’s dismissal
of the claim on the basis that the appellant failed to prove the
alleged contract and its terms can therefore not be
sustained. He
submitted that the claim should have been considered on the basis
that it was a claim in delict and he asked this
court to do so.
[8] Some debate between
counsel ensued as to the somewhat vexed question whether a delictual
claim is sustainable within a contractual
relationship. The way I
see the matter makes it unnecessary to deal with this at all. It is
sufficient to say that even if the
claim is considered to be
delictual as Mr. Kemp suggests the appeal cannot succeed.
[9]
Vicarious
liability
: If the claim is to be considered on the basis of
delict, as I intend to do, it was incumbent on the appellant to prove
that the
person who supplied the ladder to the appellant acted within
the course and scope of his employment with the respondent. Failure
thereof would put an end to the matter. The court
a quo
found
that the appellant succeeded in proving this, but rightly pointed out
that, this finding was rendered irrelevant by the finding
that the
appellant failed to prove the alleged contract and it’s terms. The
court
a quo
nevertheless detailed the reasons for it’s view
that the appellant’s vicarious liability was properly proven. In
her judgment
Ebrahim J came to the conclusion that the appellant
failed to prove that Maile was in the respondent’s employment. If
this is
correct the question of negligence does not need
consideration at all. I differ with the view of Ebrahim J. A
consideration of
the evidence as a whole convinced me that the court
a quo
was correct in its finding. Although all of what the
court
a quo
said in this regard was in fact obiter the reasons
set out in its judgment is convincing. I can do no better than to
quote it:
“
[24] In the same breath, the
question of whether Isaac Maile, who according to the plaintiff’s
version, provided the defective stepladder,
was an employee of the
defendant is rendered irrelevant by my finding aforesaid.
It is my view though, that Isaac
Maile was indeed an employee of the defendant and was acting within
the course and scope of his
employment as such of the reasons set out
hereunder.
[25] The evidence of Thys Spamer is
clear that he was at the relevant time so employed. Thys was the
manager of the defendant at
the time and he surely must have known
who was employed by the defendant. I have found Thys to be a
credible witness and insofar
as there is a conflict between his
evidence and that of Amm and Maile, on the other hand, I would prefer
Thys’s version.
[26] Isaac Maile’s resignation on 31
May 1996 as per exhibits “J” and “K” appears to have been a
ploy to circumvent the
provisions of the labour laws. According to
Thys it was done on the advice of a labour consultant. Isaac Maile
himself does not
seem to know precisely what was happening. All he
knew is that he was told that there was no money or work and that had
to go but
that he could return when work or money was available. He
was made to sign exhibits “J” and “K”, which he did not
comprehend,
as he is an illiterate who only knows how to sign his
name. He says that he had no option in the matter. Interestingly,
under cross
examination he initially denied that he had voluntarily
resigned but then quickly somersaulted and said that he could not
recall
fully what happened. What he was certain about was that he
went away and did some independent work at Marseilles. In 1999 he
returned
to Alpha Estate and was virtually reinstated on the farm. I
say this because in spite of his insistence that he was now an
independent
contractor, the evidence shows that his position was the
same as that of other permanent employees on the farm:
(a) He worked the normal hours, was
given similar benefits, was paid on a monthly basis, was reinstated
in a house on the farm and,
according to Thys, he was subject to Thys
authority like all other employees. The only difference was that
Maile earned more than
the others, to wit R800,00 or R1 000,00 per
month. According to Thys, this was because he was a versatile worker
and led the group
that worked with him. No wonder that Miya regarded
him a foreman.
(b) Significantly, Maile was given his
unemployment insurance fund card (UIF) only when he finally left
Alpha Estates after 1999.
[27] Isaac Maile did not impress as a
witness. He worked on the very plant that the plaintiff and Maile
were working for at least
two weeks according to his own evidence.
Yet he claimed that he had no contact with them and never saw them
using stepladders.
This is so improbable that it is safe to say that
he was lying. He also claimed that he only heard of the plaintiff’s
fall from
Mahlako Maile after the latter had attended this trial
during 2003, when he himself had been working on the same plant as
the plaintiff.
It is clear that he is falsely distancing himself
from the plaintiff’s fall. I accept the plaintiff’s version that
he was the
one that provided the stepladders or instructed his
juniors to supply them. The fact that the defendant’s register of
employees
for the relevant period had inexplicably disappeared
without trace puts a question mark on the credibility of its case in
this regard.”
All of this makes it
necessary to deal with the question of negligence and the
respondent’s alleged duty to care towards the appellant.
[10]
Duty to take
care
. In paragraph 4 of the particulars of claim it is alleged
that it was a material term of the agreement that the respondent
would
supply all the necessary ladders required for the performance
of the appellant’s work. On that basis it is then alleged in
paragraph
5 of the particulars of claim that the respondent owed the
appellant a duty of care to supply ladders that were fit for the
intended
use.
[11] The appellant
himself testified that
“
I ask.... if they had ladders I
could use and the reply was the reply was more than, we have got more
ladders here than will ever
be necessary.”
Volume 2, page 70, lines
4 to 7.
This proves nothing more
that that the appellant would be allowed to make use of the
respondent’s ladders if such ladders suits
his needs. It does not
amount to prove that it was a term of any agreement that the
respondent would supply ladders fit for the
appellant’s use. Even
Mr. Kemp for the appellant did not submit that this constituted a
binding contract. He preferred to term
it
“a valuable
backdrop to put concrete content to the delictual obligations in
question”.
This being so it cannot be said that a
legal duty to take care was brought about by a term of a contract
between the parties. In
this regard the judgment of Coetzee J in
CATHKIN PARK HOTEL v J. D. MAKESCH ARCHITECTS
1993 (3)
SA 98
(W) to which we were referred is distinguishable.
[12] The question however
remains whether the circumstances in general under which the
appellant made use of the ladders constituted
a legal duty on the
appellant not to act negligently. In
TRUSTEES FOR THE TIME
BEING OF TWO OCEANS AQUARIUM TRUST v KANTEY & TEMPLER (PTY) LTD
2006 (3) SA 138
(SCA) at 144 Brand JA said:
“
[10] ... The imposition of such
a legal duty is a matter for judicial determination involving
criteria of public or legal policy
consistent with constitutional
norms....
[11] It is sometimes said that the
criterion for the determination of wrongfulness is ‘a general
criterion of reasonableness’’,
i e whether it would be reasonable
to impose a legal duty on the defendant (see e g
Government of the
Republic of South Africa v Basdeo and Another
1996 (1) SA 355
(A)
at 367E-G;
Gouda Boerdery BK (supra)
in para [12]. Where
that terminology is employed, however, it is to be borne in mind that
what is meant by reasonableness in the
context of wrongfulness is
something different from the reasonableness of the conduct itself
which is an element of negligence.
It concerns the reasonableness of
imposing liability on the defendant (see e g Anton Fagan
‘Rethinking
wrongfulness in the law of delict’
(2005) 122 SAL
J
90
at
109). Likewise, the ‘legal duty’ referred to in this context
must not be confused with the ‘duty of care’ in English
law which
straddles both elements of wrongfulness and negligence.”
[13] Given the
circumstances of this case I remain unconvinced that it
“would
be reasonable to impose a legal duty”
on the
respondent as the appellant contends for. I really do not think that
criteria of public or legal policy require that a citizen
gratuitously consenting to the request of a person experienced in the
field of the use of ladders to make use of it’s ladders should
be
saddled with a duty to take care that a safe ladder is selected by
the user there-of.
[14]
Negligence
:
Even if I am wrong in the conclusion that no legal duty as alleged
existed the appellant in my view failed to prove any negligence.
On
the appellant’s version he used two long ladders of the respondent
to do his work. Apparently this was the position for some
8 working
days before the incident occurred (Volume 2, pagina 75, line 15).
[15] The day the incident
occurred the appellant
“
...asked Israel (his own employee)
to have a look if he could find somebody to ask. He found
somebody... and he asked him a ladder,
for one of the ladders, ... a
little while later, ... the man we asked ... arrived with a ladder.”
Volume 2, pagina 78,
lines 1 – 7.
According to the
appellant he
“
...opened the ladder and had a
glance at the ladder, it looked reasonable,... and I climbed up the
ladder,... I got to the top, Israel
my assistant climbed up the
ladder with more tools.”
Volume 2, pagina 80,
lines 5 – 9.
“
... A glance, no, an educated
look.”
“
... After using ladders for 18
years ... it looked okay to me ... the ladder looked functional.”
Volume 2, pagina 111,
lines 8 – 19.
The appellant and his
assistant apparently then proceeded with their work on the roof.
Sometime later the appellant for some reason
or other wanted to get
down again.
“
I went to the edge... I hung onto
onto one of the overhangs and twisted myself sideways so that I could
climb down the ladder in a
conventional way.... I put my foot on the
first scotch... on the first actual run.... and the ladder slip in
half on me.”
Volume 2, pagina 81,
lines 6 – 15.
[16] The test for
negligence remains the one postulated in
KRUGER v COETZEE
1966 (2) SA 428A
at 430.
“
(a) a diligens paterfamilias in the
position of the defendant -
(i) would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial
loss; and
(ii) would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take such
steps.”
[17] It must be kept in
mind that the appellant was employed as an expert in his field. His
work required him to make use of ladders
apparently on an almost
daily basis. There is no evidence that the respondent’s worker was
asked to check the ladder beforehand.
The appellant himself checked
it and regarded it to be acceptable. If he reached that conclusion
it cannot be said that the respondent’s
worker was unreasonable in
not noticing any defects in the ladder. The required foreseeability
of harm to the appellant can therefore
not be attributed to the
respondent’s worker. My conclusion therefore is that the appellant
also failed to prove the required
negligence on the part of the
respondent.
[18] For these reasons
the appeal must be dismissed with costs.
_____________
C.
B. CILLIé, J
On
behalf of the appellant: Adv. K.J. Kemp SC
Instructed
by:
Webbers Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. W.R.E. Duminy SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
/em