Rauf v General Motors Corporation (1800/99) [2001] ZANCHC 25 (2 November 2001)

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[2001] ZANCHC 25
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Rauf v General Motors Corporation (1800/99) [2001] ZANCHC 25 (2 November 2001)

Verslagwaardig:
Ja/Nee
Sirkuleer
aan Regters: Ja/Nee
Sirkuleer
aan Landdroste: Ja/Nee
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Number:
1800/99
Date
Delivered:
02-11-2001
In
the matter between:
ARNOLD
RAUF Applicant/Plaintiff
and
GENERAL
MOTORS CORPORATION Respondent/Defendant
Coram: Majiedt J
JUDGMENT
MAJIEDT
J:
This interlocutory application came before me
in the Motion Court and I had, by agreement between the parties,
ordered that the
trial be postponed to a date to be arranged with
the Judge President in Chambers, after representations have been
made to the Judge-President
by the parties. I had reserved judgment
on the application for further and better discovery in terms of Rule
35(3) as well as
the costs of the application.
For
the sake of convenience, I shall refer to the Applicant as the
“Plaintiff”
and to the Respondent as the
“Defendant”
herein.
Plaintiff
seeks to recover from the Defendant a considerable sum of money as
damages for bodily injuries and their
sequelae
,
sustained when his motor vehicle, manufactured by the Defendant, had
overturned.
The
action had been set down for trial commencing on 5 November 2001 and
a further six weeks thereafter. The parties were
ad
idem
that the trial cannot proceed on that date, albeit for different
reasons.
The
application for postponement and to compel further discovery was
launched by the Applicant on 16 October 2001. It is necessary
that
I set out in full the events which had preceded this.
On
8 October 2001 Plaintiff’s attorney forwarded to Defendant’s
attorneys by telefaxed letter, a detailed list of items under
various headings, in respect of which it sought further discovery,
on the basis that same was relevant to the issues between
the
parties and that the Defendant had the documents in its custody or
under its control.
On
11 October 2001, the aforementioned letter was followed up with
another one, similarly forwarded by telefax to Defendant’s
attorneys. In this second letter Plaintiff’s attorneys advised
that Plaintiff was
“compelled
to seek a postponement of the trial until his discovery requests
have been complied with.”
On
12 October 2001, the Defendant’s attorneys replied to both the
aforesaid letters. They dealt
seriatim
with each and every one of the items complained about.
Significantly, they also indicated therein their stance that the
trial
be postponed indefinitely (primarily for security reasons,
having regard thereto that many of their witnesses would have to
travel
from the USA) and proposed as follows:
10.3 “In
the circumstances and because both parties clearly want a
postponement, we suggest that this be applied for by consent
and that
the wasted costs occasioned by the postponement should be reserved.
We are happy to prepare papers and make the necessary
application to
court. We believe that, out of courtesy to the court, this should be
done at the earliest opportunity with a view
to the application being
moved on Friday 19
th
October 2001.
Unless
we hear from you to the contrary by close of business on Monday
15
th
October 2001 we intend to proceed on the aforesaid basis.”
It
is quite apparent therefore that, on 12 October 2001, the
Plaintiff’s attorneys had become aware of the Defendant’s
position
vis-à-vis
:
the
question of a postponement; and
the
matter of further discovery, that is to say that Defendant had
adopted a very strong stand opposing the need for further discovery.
Notwithstanding the aforegoing, the
Plaintiff elected to press ahead to bring an application to court
on very short notice for
a postponement and for further discovery.
This
election was, in my view, ill-considered and unwise as I shall show
in due course. The more sensible approach, to my mind, was
to accept
the proposal for a postponement contained in the Defendant’s
attorneys’ letter of 12 October 2001, and to consider
the balance
of the contents of the letter relating to further discovery very
carefully and in consultation with Plaintiff’s experts.
Only then
would a
proper
application, brought on proper notice as contemplated in the Rules,
have been warranted.
4. The
Plaintiff has deposed to the founding affidavit to the application.
In his affidavit he makes extremely liberal use of hearsay
averments,
emanating primarily from one Byron Bloch, who is described as an
“automobile
safety design expert from Maryland, USA”.
There is no accompanying confirmatory affidavit from Bloch attached
to the papers.
Surprisingly, the
Defendant has not complained of these hearsay allegations nor has it
applied for same to be struck out. Upon enquiring
from Mr. Wise, who
appeared with Mr. Hutton for the Defendant, as to Defendant’s
attitude, I was informed from the Bar that Defendant
objected to the
hearsay and I was asked to disregard such averments. I have a wide
discretion to admit hearsay averments, by virtue
of the provisions
contained in section 3 of the
Law of Evidence Amendment Act, 45 of
1988
;
See:
Mnyama
v Gxalaba & another
1990(1)
SA 650 (C) at 653 A-C.
I am of the view that I
should do so in this case, in the interests of justice. As will
become clear, this matter is one of considerable
complexity,
magnitude and importance to both parties. Moreover, discovery and
the production of documents will be a crucial feature
therein,
particularly for the Plaintiff.
5. The
provisions of
Rule 35(3)
can be invoked only in respect of those
documents which may be relevant to the issues between the parties.
In the context of this
case,
“relevance”
is of utmost importance.
I say this because two
notable features which present themselves on the papers in the
interlocutory application and the pleadings
in the main action are: -
the
Plaintiff’s
Rule 35(3)
notice is couched in very wide terms; and
by
the very nature of the Plaintiff’s action, which is essentially
one of product liability, the Plaintiff is very heavily dependent
on
the Defendant making full and proper discovery, since most, if not
all, the relevant documents are in the Defendant’s custody
or
under its control.
In order to do justice to
the parties, a balance must be struck between these features.
It
is necessary that I repeat in detail the Plaintiff’s Intendit (as
amended) where he sets forth Defendant’s alleged negligent
conduct:
“
8. At all material
times hereto Defendant: -
Carried
on the business of the design and manufacture of Chevrolet motor
vehicles, and components, for use in such vehicles.
Exports
the vehicles to countries outside the United States of America
including South Africa, alternatively sells such vehicles
in the
United States with the knowledge that they will be so exported.
Designed
and/or manufactured the motor vehicle and its components including
the axle, seats, seat recliner and seat belt assembly
and side
window.
Knew
or ought to have known that members of the public and more
particularly the Plaintiff will suffer damages should the motor
vehicle be unsafe due to defects in its design and/or manufacture.
In
the premises Defendant had a duty to take all steps reasonably
necessary to ensure that:
the
motor vehicle is safe for its intended use.
Components
used in the vehicle were capable of serving the purposes for which
they were designed and manufactured and more particularly
safe and
effective operation under the conditions and subject to the hazards
to be expected in driving the motor vehicle.
The
motor vehicle is free of any defects in its design including all
parts and components thereof.
The
motor vehicle including its parts and components are manufactured
according to its design and specifications.
All
the manufactured components are safe for its intended use.
All
components be tested properly prior to the assembly of the motor
vehicle.
The
public and more particularly the Plaintiff is informed and/or
warned of any possible defects in the design or manufacture
of the
motor vehicle that might render the motor vehicle unsafe under
certain circumstances.
Proper
roll-over tests of the motor vehicle are conducted.
Occupants
of the motor vehicle and more particularly the Plaintiff are
properly and effectively restrained during a roll-over
accident.
Defendant
negligently breached the aforesaid duty in that it failed to take
those steps necessary to:
Ensure
that the motor vehicle is safe in all respects.
Ensure
that the components used in the motor vehicle, and more
particularly the components referred to in sub-paragraph 8.3 supra
were capable of serving the purpose for which they were designed
and manufactured and safe under the conditions the motor vehicle
was to be used, including the conditions arising under the
accident.
Prevent
the rear axle from failing as it did.
Properly
test the various manufactured components and the effectiveness of
its design.
Conduct
roll-over tests.
Ensure
that the Plaintiff was properly and effectively restrained during
the roll-over.
Warn
the public and more particularly the Plaintiff of the defects in
the design and/or manufacture of the motor vehicle stated
more
fully hereunder.
Defendant
further negligently breached the aforesaid duty in that it knew or
ought to have known that:
The
side window design was defective in the inadequacy of its thin
tempered glass to stay intact and in its inadequate retention
or
attachment to the vehicle body.
The
driver’s seat test, including the seat back recliner lever,
design was defective in that the seat back recliner mechanism
is
vulnerably exposed to the lower of the seat belt.
The
motor vehicle is not fitted with a seat belt pretensioner.
An
occupant of the motor vehicle is not effectively protected against
ejection from the motor vehicle during a roll-over.
The
rear axle design was defective in that it was too weak and/or too
brittle for its intended purpose.
The
incident and the accident was caused due to the Defendant’s
wrongful and negligent conduct as aforesaid.
Alternatively
to paragraph 12, the accident was caused due to the Defendant’s
wrongful and negligent conduct as aforesaid.”
The passages quoted hardly commend themselves
as a model of draftsmanship, most notably paragraph 11.2 thereof
which should, to
my mind, read:
“
11.2 The
driver’s
seat
,
including the seat back recliner lever, design was defective in that
the seat back recliner mechanism is vulnerably exposed to the
lower
portion
of the seat belt”.
(I have underlined the
words which should be substituted or added to make some sense of the
subparagraph).
Even
in its improved form, one is not entirely clear as to whether the
defective design complained of relates to the seat back recliner
lever
or the seat back recliner
mechanism.
The
Defendant has taken issue with Plaintiff on all these averments.
Before
I deal with the Plaintiff’s
Rule 35(3)
notice, it is of
considerable assistance to remind oneself again of the rationale
behind and the objective of
Rule 35(3)
and to examine how our Courts
approach the matter.
In
general discovery serves to prevent trial by ambush, to narrow the
issues and to eliminate the debating of incontrovertible
points;
See:
Durbach
v Fairway Hotel Ltd
1949(3)
SA 1081(SR) at 1083.
The
importance of proper and full discovery has been emphasized by our
Courts many times over.
See,
inter
alia: -
Van
Vuuren v Agricura Laboratoria (Edms). Bpk.
1974(2) SA 324 (NC) at 327;
Ferreira
v Endley
1966(3) SA 618 (E) at 621C;
Durban
City Council v Minister of Justice
1966(3) SA 529 (D) at 531B.
The
discoverability of documents is determined by the notion of
relevance.
The test for relevance
has been authoritatively laid down as being every document which
contains information which may either directly
or indirectly enable
(a party) either to advance his own case or to damage the case of his
adversary.
See:
Rellams
(Pty) Ltd v James Brown & Hamer Ltd
1983(1)
SA 556(N) at 564A;
Swissborough
Diamond Mines v Government of the RSA
1999(2)
SA 279(T) at 316 E-H.
Relevance
is to be ascertained by reference to the issues between the parties
ex
facie
the pleadings;
See:
Federal
Wine and Brandy Co Ltd v Kantor
1985(4)
SA 735(E) at 753 D-G;
Copalcor
Manufacturing (Pty) Ltd v GDC Hauliers (Pty) Ltd
2000(3) SA 181 (W) at 194A.
In
this regard, no reference can be made to a Request for Further
Particulars for Trial and the response thereto;
Swissborough
Diamond Mines v Government of the RSA,
supra
at 317C-E.
The
more complex the dispute between the parties, the greater the need
for precision in formulating the issues in the pleadings;
See:
Imprefed
(Pty) Ltd v National Transport Commission
1993(3) SA 94(A) at 106-7
9.6 A
discovery affidavit is
prima
facie
taken to be conclusive, also with regard to the relevancy of
documents;
Marais
v Lombard
1958(4) SA 224(E) at 227G.
Further discovery will be ordered if it
appears from the pleadings and/or the discovery affidavit itself
and/or admissions made by
the party making discovery and/or the
nature of the case or the documents that there reasonably may be
other relevant documents in
the possession of the party making
discovery;
Swissborough
Diamond Mines v Government of the R.S.A,
supra
at 320 F-H.
9.7 The onus rests on the
party who/which seeks to go beyond the discovery affidavit to
establish that there are other documents that
ought to be discovered;
Federal
Wine and Brandy Co. Ltd v Kantor,
supra
at 749A.
In order to curtail the length of this
judgment, I find it convenient to deal with each of the items where
further discovery is
being sought, Defendant’s answer thereto and
my finding in respect of the various issues raised. I should point
out that the
Defendant has already delivered a main and
supplementary discovery affidavit in terms of
Rule 35(1)
and has
also delivered two further affidavits in response to Plaintiff’s
Rule 35(3)
notice.
The
Plaintiff firstly requests discovery of a list of all past and
pending litigation cases in the USA, and elsewhere, concerning
GM
Chevrolet ‘Blazer’ of ‘Jimmy ‘ vehicles for any of the model
years 1989 to 1999, in which allegations were made that
any of the
aforesaid vehicles:
has
a propensity, tendency or history of going out of control;
has
a propensity, tendency or history of rolling over or overturning; or
has
a front seat backrest that has a propensity, tendency or history of
failing or not staying in an upright position during emergencies
or
accident situations.”
11.2 It will immediately
be apparent that not one of (a) or (b) had been pleaded by the
Plaintiff in his amended Intendit, referred
to hereinbefore.
Plaintiff has insisted through his Counsel, Mr. Trengove, that the
request is valid, since these documents may
provide alternative
explanations of why the accident occurred.
This
amounts, in my view, to a fishing expedition. The Plaintiff has
set his sails on the course mapped out in his amended Intendit.
He
cannot now midstream, as it were, seek to change course and require
the Defendant to map out an altered course for him.
Even
less persuasive is the submission that these documents
“may
prove or disprove Defendant’s theories of defence”.
Defendant
does
not bear any onus on the pleadings as they stand, nor has it
advanced any “theory of defence
”
on
the pleadings. I am mindful of the mountain which the Plaintiff
has to climb in his action. That does not entitle him, however,
to
obtain assistance outside the ambit of the Rules.
There
is some merit in the request under (c),
supra
.
Although it is framed very widely, I am of the view that the
request does cover the ground for negligence set forth in par.
11.2
of the Intendit. The failing of the seat backrest may well be
shown at the hearing to be related to the exposed recliner
lever.
The
Defendant is therefore ordered to discover the documents as requested
under par (c) supra.
Secondly,
the Plaintiff requests:
“
2. A complete copy
of all memoranda, reports, studies, test reports, the results of
tests conducted or recorded by experts or by other
persons, and
deposition transcripts and attachments to deposition transcripts,
(whether or not any such documents were produced by
GM or by others)
with regard to any of the GM Chevrolet “Blazer” or “Jimmy”
vehicles for any of the model years from 1989
to 1999, that contains
any information or opinion or allegation or suspicion that any such
vehicle does or does not:
Have
a propensity, or history of going out of control;
Have
a propensity, tendency or history of rolling over or overturning or
being unstable;
Have
a rear axle that has a propensity, tendency or history of
malfunctioning or falling or separating;
Have
a front seat backrest that has a propensity, tendency or history of
failing or not staying in an upright position during
emergencies or
accident situations;
Have
a seatbelt(s) that has a propensity, tendency or history of failing
or not restraining occupants in rollover or accident
or emergency
situations; or
Have
side windows of which the glass has deficient or insufficient
retention capabilities or qualities.”
The
Plaintiff’s case is that the Defendant has disclosed the
existence of several similar cases in the USA, but that it
mistakenly
claims privilege as far as production of these documents
are concerned. The Defendant has acknowledged the existence of
several
similar cases. It has referred to the practice in the USA
of issuing protective orders in respect of Court documents which
are
furnished to a party to a suit. These orders, as I understand
it, serve to secure the confidentiality and intellectual property
rights of a party.
The
Defendant has stated in its Answering Affidavit that it is in the
process of requesting and collating expert reports and depositions
in these cases from its attorneys. In doing so, it does not
concede an obligation to discover and produce same.
The cases referred to
may, in my view, be relevant and the Plaintiff’s request is
justified.
The
Defendant has at no stage conveyed an unwillingness to deliver these
documents. In fact, it has indicated to the Plaintiff that
it is in
the process of collating same for delivery. There was consequently
no need to approach this Court for assistance.
Rule 35(3)
should
only be invoked where there is a
refusal
to deliver relevant documents. That is not the case here.
13.1 Paragraph
3 of the Plaintiff’s Notice contains the following request: -
“
3. Produce a copy
of all correspondence and documents that contain any information
about any and all previous or pending investigations
by, or
complaints to, the National Highway Traffic Safety administration
(NHTSA) of the United States Department of Transportation
concerning
any of the issues described in paragraphs 2.1, 2.2 and 2.4 above with
regard to any GM Chevrolet ‘Blazer’ or ‘Jimmy’
vehicle for
any of the model years from 1989 to 1999.”
This
request relates to the same aspects as set forth in paragraph 11
supra
.
For the reasons set
forth in par. 11, I am of the view that the request as it relates to
par. 2.4 of the Notice is justified, whereas
that in par. 2.1 and 2.2
are not.
The Defendant is ordered to discover
the documents requested in par. 3 of the request as it relates to
par. 2.4 thereof.
Paragraph
4 of the Notice reads as follows: -
“
Produce a complete
list of all GM recall campaigns and all Technical Service Bulletins
(TSB’S) that concern any vehicle manufactured
by GM or any of its
subsidiary companies for any of the model years 1989 to 1999, and the
recliner mechanism for the backrest of
the front seat in such
vehicles, including the adjuster lever or handle. Attach copies of
such recall campaigns and TSB’s.”
At
the outset I must point out that the request relating to the
“backrest
of the front seat
”
is at variance with paragraph 11.2 of the amended Intendit, wherein
reference is made to
“the
driver’s seat”.
I
therefore deal with this aspect further on the understanding that
the request intended to refer to the driver’s seat.
A
careful perusal of the pleadings, more particularly par.11.2 read
with par.9.8 and par. 9.9 of the amended Intendit, reveals
that
Plaintiff’s averment relating to defective design of the driver’s
seat, is that
the
seat back recliner mechanism is
vulnerably
exposed
to the lower (portion) of the seat belt"”
(my underlining and my insertion).
Par. 7 of the amended
Intendit bears relevance to this aspect and it reads:
“
7. As a direct
result of the incident the motor vehicle overturned and rolled
causing Plaintiff to be ejected through the rear side
window (‘the
accident’).”
If
one reads these averments in context, it is abundantly clear that the
Plaintiff’s case is that the
“vulnerably
exposed”
seat back recliner mechanism/lever caused the seatbelt webbing to
become entangled therein, causing the seat back to fall back and,
presumably, thereby
“ejecting”
the Plaintiff through the rear side window.
In
his affidavit, James Lee Cnossen Jnr., on behalf of the Defendant,
responded to this request by: -
complaining
about the
“inordinately
and unacceptably wide”
framing of the request, and
stating
that, having searched diligently therefor, no such documents (i.e.
in respect of recall campaigns and Technical Service
Bulletins)
could be found in respect of GM Chevrolet
“Blazer”
or
“Jimmy”
vehicles. The Plaintiff, in his Founding Affidavit in this
application, rejects this explanation and makes reference to a
recall
campaign in 1997 affecting some 586 058 Chevrolet Blazer 1996
vehicles. He annexes a copy thereof and avers that this recall
campaign
relates to the same or a closely related problem to the one
he sets forth in par. 11.2 of his amended Intendit. He avers
further
that it is a design flaw which Defendant had sought to
correct by installing a
“protective
cover over the recliner mechanism”
(the quotation comes from the recall campaign notice).
It
is noticeable that the Plaintiff did not deem it necessary to
attach as annexures copies of the correspondence between the
Defendant’s attorneys and his attorneys, to which I have referred
in par. 3 s
upra
.
The letter of 12 October 2001, annexure
“JLC4”
to Defendant’s Answering Affidavit, is of particular relevance
and the omission in attaching same or making reference thereto
at
all, is quite startling. In that letter, Defendant’s attorneys
deal in great detail
seriatim
with the various complaints relating to the alleged non-disclosure
and non-production of documents. They deal extensively with
this
alleged related recall campaign (alluded to by Plaintiff’s
attorneys in their letter to the Defendant’s attorneys) and
even
go as far as
to
annex a copy of the relevant Bulletin
.
Of further significance is that Plaintiff’s attorney deemed it
unnecessary to annex a copy of the recall campaign notice
(which
the Plaintiff alludes to in his Affidavit) to his letter of 8
October 2001.
In
the Defendant’s response, Mr. Cnossen and an expert, Mr. Gerald
Cooper, point out that: -
the
recall campaign concerned 2 door utility vehicles, whereas Plaintiff
had a 4 door utility vehicle; and
that
the recall had been actuated by a different problem, unrelated to
the one referred to by the Plaintiff. According to them,
that
recall concerned a potential for the lap seatbelt webbing to be cut
through contact with a sharp steel edge on the seat back
recliner
(not the handle) in an angular frontal collision. Since the 4 door
models had a different geometrical design as that
of the 2 door
models as far as seatbelt routing was concerned, no recall was
necessary for 4 door models.
Mr.
Trengove has:
questioned
whether the recall campaign notice referred to by the Defendant is
the same as the one which the Plaintiff alluded to;
and
submitted
that, in any event, the request is valid, since the recall campaign
concerns at the very least, a
related
problem.
Annexure
“AR2”
to the Plaintiff’s Founding Affidavit appears to have been
downloaded from the Internet, probably from the National Highway
Traffic Safety Administration (NHTSA) website, if one has regard to
the bottom of that page.
Annexure
“JLC5”
to Defendant’s Answering Affidavit, on the other hand appears to be
a General Motors product recall campaign notice addressed to
all its
agencies and distributorships.
In comparing these two
documents, the following similarities present to the reader: -
Both
of them refer to two door utility vehicles.
Virtually
identical language is used in the two documents in describing the
problem which actuated the recall, namely
“.
. . the outboard safety (seat) belt webbing on the driver’s and/or
passenger’s seat can separate during a frontal impact”.
The
consequences which the problem may cause in an accident is described
in almost the same terms “:
.
. if a separation occurred and there were secondary crash events or
(vehicle) rollover, there would be no belt restraint of the
occupant
and increased injuries could occur.”
The
NHTSA notice declares that
“owner
notification will begin during September 1997”
;
the Defendant’s Notice is indeed dated September 1997.
Both
notices indicate that, in order to remedy the defect, the General
Motors dealerships would be required to install a protective
cover
over the recliner mechanism.
I therefore have no doubt
whatsoever that these two documents relate to the same recall
campaign.
Does
the recall campaign notice under discussion have any relevance to
the issues between the parties, more particularly as enunciated
in
par 11.2 of Plaintiff’s amended Intendit?
I believe not – there
is, to my layman’s mind, a vast difference between
the
danger presented by a
“vulnerably
exposed”
seat recliner lever which may snag or entangle a seatbelt causing
the seatback to fall back; and
the
risk of a front outboard seatbelt webbing separating during a
frontal impact.
14.10 Having
come to the conclusion aforestated, I am of the view that there is no
merit in die Plaintiff’s averment that the Defendant
has, with
reference to this campaign notice, failed to disclose
relevant
documentation.
There is nothing to
suggest that the Defendant is less than truthful and not forthcoming
when it claims not to have located any documents
as sought by the
Plaintiff in par. 4 of its Notice.
I therefore find that there is no
basis upon which I should order further and better discovery in
respect of the documents referred
to in par. 4 of the
Rule 35(3)
Notice.
Par 5 of the Plaintiff’s Notice requests documents
concerning design, manufacturing or materials changes or
adaptations for
the front seat belts, recliner mechanism for the
front seat (including the adjuster lever or handle), rear axle and
side windows
of all GM Chevrolet
“Jimmy”
,
“Blazer”
and other GM sport utility vehicles manufactured since 1996 until
date.
The Defendant’s response was
that the request is framed unreasonably wide in that it seeks
documentation relating to changes
and adaptations, whether they are
relevant to the specific issues at hand or not.
It then declared
that, insofar as it has a bearing on changes and adaptations relevant
to the issues between the parties, Defendant
has been unable to
locate any such documents, after a diligent search.
Plaintiff has now averred in his
founding Affidavit that there have been significant design changes
to the driver’s seatbelt
and the seatback recliner levers of the
1998 and 2002 Blazers. He annexes four photographs forwarded to
him by Bloch, which
depicts these changes.
According to the
Plaintiff, Mr. Bloch’s opinion is that the design change (through
the addition of a plastic sleeve to the seatbelt)
was in all
likelihood intended to prevent the seatbelt webbing from becoming
snagged by the recliner lever.
Defendant’s
answer to the aforementioned averments is advanced by Mr. Cooper
and Mr. William McMillan Jnr. The latter is an
engineer employed
in the Field Performance Assessment Section of the Defendant.
Their response can be paraphrased as follows:
-
Cooper
denies that the plastic sleeve was designed to avoid snagging of the
belt with the recliner lever. It was in fact designed
in the 1998
Blazer to house a loop which acts as a warning when seat belt loads
are exceeded.
McMillan
explains that the 2002 model is being marketed as an entirely new
vehicle design under the name
“Trailblazer”
.
It therefore has new designs in almost all of its systems (i.e.
including seats and seatbelts). He denies therefore that any
design
changes in the Trailblazer have been as a consequence of safety
concerns regarding the interaction between the seat recliner
release
handle and seat belt system.
There is, in my view,
no merit in the Plaintiff’s request as far as the 2002
Trailblazer is concerned. This is an entirely
new model range,
with different systems and designs in many different spheres. Any
design changes or adaptations can simply
be explained away on this
basis. It bears no relevance to the issues between the parties.
I
have considered very carefully Cooper’s explanation. While there
is a lot to be said for it, I am of the view that design
changes
and adaptations to the 1998 Blazer may well be relevant. There are
conceivably a myriad reasons why a manufacturer implements
design
changes/adaptations, e.g. aesthetics, practicality, etc. One of
such reasons may indeed be to enhance safety. That immediately
suggests that the previous design was unsafe or, at the very least,
less safe than the new design.
I therefore take
the view that the design changes in the 1998 Blazer may be relevant
to the issues herein. The request should, however
be limited so as
to be relevant to the issues between the parties.
The
Defendant should therefore discover such further documents as may
relate to design changes to the driver’s seatbelt and seatback
recliner mechanisms of the 1998 Chev “Blazer”.
16. Par.
6
of the Plaintiff’s
Rule 35(3)
notice requests copies of all
correspondence relating to the matters in the preceding paragraph
hereof. Such correspondence is sought
as between the Defendant (or
its subsidiaries/agents) and the NHTSA.
In
this regard, the conclusion which I have reached herein above applies
a
fortiori
for the reasons given.
The
last aspect in the
Rule 35(3)
Notice is to be found at par. 7
thereof. This relates to documentation concerning the vehicle’s
rear axle. No complaint about
non-discovery and non-production of
relevant documentation is leveled by the Plaintiff on this matter.
There are, however, certain
other aspects raised by the Plaintiff in
his Founding Affidavit which requires discussion.
The
Plaintiff makes mention of the fact that it can be gleaned from the
Defendant’s expert notices that Defendant has changed
the designs
of the seatbelts by adding a pre-tensioner mechanism. According to
Bloch, this was one of the problems with the
Plaintiff’s
vehicle’s seatbelt – it did not have a pre-tensioner, thereby
allowing the seatbelt to hang slack and in so
doing, snag the
recliner lever. Plaintiff avers that it is clear that Defendant
has added pre-tensioners in its seatbelts since
1996, if regard is
to be had to its expert notices. There has been a redesign of the
restraint systems in other vehicles, which
is relevant to the
present matter, so the Plaintiff alleges.
Mr.
Cooper, one of the Defendant’s expert witnesses, counters these
averments as follows: -
The
fact is that other GM vehicles have had pre-tensioners fitted to
their seatbelt systems is irrelevant to the seatbelt system
of the
Blazer vehicles.
Vehicle
restraint systems are designed for specific vehicles within specific
criteria and parameters, which he lists.
These
attributes and criteria will inform the designer as to what will be
required to achieve the desired belt restraint system
performance in
a particular vehicle – no pre-tensioners were necessary to achieve
the desired level of performance in the type
of vehicle which the
Plaintiff had been driving.
Notwithstanding
Mr. Cooper’s detailed explanation which at first blush appears to
be fairly convincing, I have considerable
doubt in my mind as to
the real reason for the design change. It seems to me from a lay
perspective that Bloch’s theory of
the snagging of the lever by a
slack, hanging seatbelt is not without merit.
It
would appear that a seatbelt fitted with such a pretensioner
mechanism may have avoided a scenario where a slack seat belt can
become snagged in the recliner lever. Moreover, the Plaintiff, to
his credit, has
specifically
pleaded this aspect in its amended Intendit (see par. 11.3 thereof).
While the request is
therefore valid, it should be limited to Chev “Jimmy” and
“Blazer” vehicles, in my view.
The Defendant must
therefore discover all documents relating to the design change of
adding a pre-tensioner mechanism to the seatbelt
systems in all Chev
“Jimmy” or “Blazer” vehicles subsequent to 1996.
Plaintiff
furthermore complains about the Defendant’s
“unreasonable”
refusal to furnish any information about recall campaigns concerning
the restraint systems and recliner mechanism of the front
seats of
other
model vehicles with the Defendant manufactures.
He
avers that Defendant is unreasonable in limiting its responses to
“Blazer”
and
“Jimmy”
vehicles only.
I
have already, in the preceding paragraph, alluded to the criteria for
relevance – this limitation by the Defendant is therefore,
to my
mind, eminently reasonable. In addition, it is correct as the
Defendant avers, that the Plaintiff’s request is significantly
characterized by postulations, hypotheses and conjecture such as
“if”
and
“may
be”.
Discovery and further and
better discovery are not to be turned into exercises of trawling the
waters or casting one’s net – this
is what the Plaintiff seeks to
do here.
The
Plaintiff has submitted that Cnossen is not a suitable person to
respond authoritatively and reliably on behalf of the Defendant
to
a request to produce documents. He bases this submission on the
fact that:-
Cnossen
does not have demonstrable knowledge of the subject matter
requested;
he
does not specify where searches have unsuccessfully been made for
documents; and
he
is not located in the USA.
Defendant’s
answer is that: -
due
to Defendant’s size of operations, it is not practically possible
for one single person to conduct all the searches; and
the
Defendant has extensive and organized structures, databases and
systems in place and searches would therefore have been done
as
extensively and as far reaching as is reasonably possible to locate
relevant documentation.
There
is no reason to question the veracity and accuracy of Cnossen’s
statements.
Moreover,
in applying one’s common sense, his averments particularly as
paraphrased in 20.2(a),
supra
are quite clearly correct.
One needs to bear in
mind, further, that the Defendant has already made extensive
discovery as I have indicated at the beginning of
this judgment. In
the course of such discovery it has :-
In
its first discovery affidavit of 6 July 2000 listed some 166
documents in the schedule; these documents include those relating
to
recall campaigns dealing with possible rupture of the fuel tank in a
crash as well as problems with the windshield wipers.
On
28/9/2000 it responded to Plaintiff’s first
Rule 35(3)
Notice and
it discovered some 35 documents, including video tapes and some 298
photographs. These documents include recall campaign
bulletins and
technical service bulletins.
On
9/11/2000 the Defendant served a supplementary affidavit, disclosing
some 90 further documents, including the investigation of
customer
complaints about axle failures, seat recliner or seat adjuster
problems and seat belt lock up problems in Chev
“Jimmys”
,
“Blazers”
and
“Bravadas”
.
Another
startling feature of note is how the Plaintiff and his legal
representatives have responded to the aforementioned discovery.
The documents discovered
on 6/7/2000 by the Defendant, have been delivered to Plaintiff’s
attorneys by Defendant’s attorneys;
this notwithstanding the fact
that inspection of only some of the documents so discovered, had been
requested.
In
respect of the documents which had been discovered on 28/9/2000, the
Defendant’s attorneys had issued an invitation to the Plaintiff’s
attorneys to inspect same, but the invitation had not been taken up.
The position is exactly the same in respect of the documents
which
had been discovered on 9/11/2000 by the Defendant by way of
supplementary discovery affidavit.
This
begs the question: - is the Plaintiff
bona
fide
and honest in its complaints that the Defendant is unreasonably
refusing to produce relevant documents?
The
Plaintiff complains in his Founding Affidavit that he is being
severely prejudiced by the non-discovery, inasmuch as Bloch is
not
able to finalise his expert report. The Plaintiff also states that
the documentation could provide vital cross-examination
material.
As is apparent from this
judgment, the Plaintiff has not succeeded in persuading me that the
documents sought, except for those requested
in par. 1 of the Notice,
are relevant to the issues between the parties. In respect of the
documents referred to in par. 1 of the
Notice, the Defendant is
already in the process of searching for and collating same.
The
Defendant has made extensive and detailed discovery of documents. A
litigant who fails to inspect discovered documents when invited
to do
so, can hardly be heard to complain of inadequate and incomplete
discovery by the other side. Who is to say that the documents
which
such litigant seeks to have discovered, do not form part of that
which have already been discovered but not inspected !
As
a further possibility – how is one to know that a careful perusal
and analysis of the discovered documents may not perhaps lead
the
Plaintiff into the direction in which it has set its course on the
pleadings?
In
short – prejudice cannot exist where discovered documents are not
inspected and where irrelevant matters are pursued by a litigant.
There
remains the matter of costs. My strong
prima
facie
view was that the Plaintiff should bear the costs of his mostly
futile effort insofar as the application for further and better
discovery goes.
The Plaintiff has been
decidedly ill-advised in pressing on with his application (on very
short notice to the Defendant, it needs
to be said), notwithstanding
the fact that he, or at the very least his attorneys, knew on 12
October 2001 that the Defendant not
only agreed to a postponement of
the trial, but was even prepared to move the necessary application by
consent.
The
inference is irresistible and inescapable that no further advices had
been obtained from Bloch on the very detailed response from
the
Defendant’s attorneys in their letter of 12 October 2001. Surely
it would have been prudent for the Plaintiff to obtain such
further
advices having regard thereto that most, if not all, his technical
information seemingly emanates from Bloch? A case in
point is the
recall campaign notice, which was annexed to and fully explained in
the said letter. A referral to Bloch may well have
resulted in him
acknowledging that the recall was not relevant to the issues between
the parties.
This
is the third opposed interlocutory application in this case which has
come my way in the Motion Court, if my memory serves me
correctly.
All these applications have been characterised by emotive language,
much mudslinging from both sides and a decidedly
frosty atmosphere
between the parties, to put it mildly.
This
is a matter of great complexity, but also of great importance to both
parties, for different reasons. I reiterate my views
enunciated
during the hearing, that it is in everybody’s best interests to
rise above the niggling skirmishes and to get this matter
to trial as
expeditiously and as properly as possible.
My
strong
prima
facie
views notwithstanding, I believe that it would be proper for the
trial judge to decide on the costs of this application. It may
well
be that it transpires at the hearing that the Defendant did indeed
have in its custody or under its control further relevant
documentation which had not been produced.
Over and above the order for postponement of the trial which I
have already ordered during the hearing on 19 October 2001, I issue
the following further orders: -
1. The Defendant is
ordered to discover the following documents:
1.1 As set forth in
par. 1.3 of Plaintiff’s
Rule 35(3)
Notice dated 23 August 2001.
1.2 Listed
in par. 3 of the said Notice which relate to the aspects raised in
par. 2.4 of the Notice.
1.3 All documents in
its custody or under its control which relate to design changes to
the driver’s seatbelt and seat back recliner
mechanisms of the 1998
GM Chevrolet “Blazer.”
1.4 All documents in
its custody or under its control which relate to the design change of
adding a pre-tensioner mechanism to the
seatbelt systems in all GM
Chevrolet “Blazer” or “Jimmy” vehicles subsequent to the 1996
model.
2. Costs of the
application is reserved for determination at the trial.
______________________
S.A. MAJIEDT
JUDGE
Date
heard: 25-05-2001
Date
delivered: 02-11-2001
Counsel
for Plaintiff: Mr. R.M. Wise SC and Mr. R. Hutton
Elliott, Marris, Wilmans & Hay
Counsel
for Defendants: Mr.Trengove
Frank
Horwitz & Hugo