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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No. 4420/2017
In the matter between:

ALBERTINO LORENZO BENNET Plaintiff

And

PRIMA TOYS AND LEISURE TRADING (PTY) LTD First Defendant
FOCUS ASBESTOS REMOVAL SERVICES CC Second Defendant

Coram: Pangarker J
Hearing dates: 10, 12 - 13 February, 17 March and 29 April 2025
Judgment delivered: 7 November 2025

Summary: Delict – Claim for damages against owner of warehouses and asbestos
contractor – Contractor employed to clean warehouse roofs – Plaintiff, employed by
contractor, fell through roof when he stepped on a skylight and injured himself – Duty of
care and liability of defendants distinguished – Contributory negligence of plaintiff in not
wearing fall arrest equipment while on the roof, considered

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ORDER

a. The defendants are liable to the plaintiff, jointly and severally, the one
paying the other to be absolved, for 60% of his proven or agreed damages.

b. The defendants are liable to pay the plaintiff’s party and party costs , jointly and
severally, the one paying the other to be absolved (counsel’s fees on scale C).

c. The trial on quantum is postponed sine die, pending the completion of the pretrial
and/or case management process on quantum.



JUDGMENT


PANGARKER J

Introduction

[1] On 13 March 2014, the plaintiff, who was working on an asbestos roof on the first
defendant’s warehouse in Epping 1, fell through a skylight onto the concrete floor of the
warehouse. He pleads that as a consequence of the fall he sustained various injuries to
his right elbow, right wrist, pelvis and lacerations to the face and that as a result of these
injuries, he suffered damages comprising past and future medical expenses and general
damages, totalling R1 640 000. In view of the issues in the trial, it is necessary to set
out the pleadings in some detail. For convenience sake, Prima Toys is referred to as

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“PT” and Focus Asbestos as “FA” and the plaintiff’s fall through the skylight is referred
to as “the incident”.


The pleadings

[2] On 9 March 2017, the plaintiff caused a Summons to be issued against both
defendants, who are sued jointly and severally liable. The salient averments in his
Amended Particulars of Claim are summarised in the following paragraphs. At all
material times, the plaintiff was employed by Johan Fourie who was sub-contracted by
the second defendant, Focus Asbestos Removal Services (CC) (FA) as a mandatary as
defined in the Occupational Health and Safety Act, 85 of 1993 (OHS Act)

[3] On 13 March 2017, Mr Fourie instructed him to climb onto the roof of the plaintiff’s
warehouse to paint a section of the asbestos roof. The plaintiff, in carrying out the
instruction, stepped unknowingly onto a skylight obscured by dirt and hence fell through
it, onto the concrete ground below.

[4] The first defendant, Prima Toys and Leisure Trading (Pty) Ltd (PT) and/or the
second defendant allowed the plaintiff to work in an elevated position on the roof when
they knew that such work could not be performed safely unless the plaintiff had a safety
harness and/or fall arrest lanyard as required by Regulation 8 of the Construc tion
Regulations1, read with Regulations 4, 5 and 7 thereof and Regulations 6 of the General
Safety Regulations of the Act. The plaintiff pleads that PT and/or FA and their
employees and/or Mr Fourie (who were acting in the course and scope of their
employment with the defendants), were negligent in one or more ways in that they:

8.1 Failed to prepare health and safety specifications for the work to be performed
on the warehouse roof of First Defendant as required by Regulations 4 and 5 of
the Constructions Regulations promulgated under the Act;


1 In terms of the Act

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8.2 Failed to discuss and negotiate the content of the health and safety plan
contemplated in Regulations 5(1) of the Act and thereafter to finally approve the
health and safety plan for implementation as required by Regulation 4(2) of the
Construction Regulations;

8.3 Failed to take reasonable steps to present a suitable health and safety plan as
required by Regulation 5(1) of the Construction Regulations and that such plan
would be implemented in terms of Regulation 4(1) (d) of the Construction
Regulations before the work commenced;

8.4 Failed to stop Plaintiff from executing the work when they knew or ought to
have known that the work was not being carried out in accordance with a
suitable health and safety plan and the failure to do so posed a threat to the
health and safety of the Plaintiff as they were required to do in terms of
Regulation 4(1)(e) read with Regulation 5(1) of the Construction Regulations.2

[5] It is thus further pleaded that by virtue of the above, PT and/or FA were guilty
of wrongful conduct. They breached their duty towards the plaintiff by failing to ensure
that he was not exposed to hazard, when they knew or ought to have known that it was
dangerous to allow him to work on the roof without the use of fall arrest equipment to
prevent him from falling.


[6] Furthermore, PT and/or FA failed to take any adequate steps to prevent the
plaintiff from falling through the roof when they could and should have done so. As a
result of the injuries which he sustained, the plaintiff was hospitalized, received medical
treatment, endured pain and suffering and suffered a loss of earning capacity.
[7] In its further Amended Plea, PT admits that the plaintiff was working at its Epping
1 warehouse on 13 March 2014 and that he fell from a height onto the concrete floor.
PT pleads that it has no knowledge of the circumstances surrounding the plaintiff’s fall,

PT pleads that it has no knowledge of the circumstances surrounding the plaintiff’s fall,
nor of the allegations and puts the plaintiff to the proof of his allegations. In response to

2 Par 8, Amended POC

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the averments in the Amended Particulars of Claim regarding the provision of adequate
fall protection equipment3, PT pleads as follows:

7.1A In amplification of the aforesaid denial, but without derogating from the
generality thereof, the first defendant pleads as follows:

7.1A.1 Only in the event that it is sought to be affirmatively alleged that
the first defendant and/or second defendant and/or Johan
Fourie, being obliged to do so, failed to provide the plaintiff with
adequate fall protection equipment, such allegation is denied.

7.1A.2 On the day in question the plaintiff received from or on behalf of
Johan Fourie adequate fall protection equipment which he either
failed to wear or otherwise removed prior to his fall.

7.1A.3 The plaintiff’s aforesaid conduct

(a) Was the proximate cause of his fall, which broke the causal
nexus between any wrongful and negligent conduct ascribed
to the first defendant in the plaintiff’s particulars of claim
(none of which is admitted) and the plaintiff’s fall

(b) Constituted a novus actua interveniens, which broke the
causal nexus b etween any wrongful and negligent conduct
ascribed to the first defendant in the plaintiff’s particulars of
claim (none of which is admitted) and the plaintiff’s fall, and/or

(c) Constituted a voluntary assumption by the plaintiff, who at all
material times k new of and fully appreciated the danger,
absent the use of adequate fall protection equipment, of
falling from an elevated position on the roof of the warehouse
and injuring himself on the floor below, of the risk of so falling.

3 Para 7, Amended POC

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7.2 In further amplification of the aforesaid denial, but without derogating from
the generality thereof, the first defendant pleads that it had entered into a
contract with the second defendant in terms whereof the second defendant
executed certain specialised works at the premises of the first defendant,
which works were executed under the exclusive control of the second
defendant in its capacity as an independent contractor.

7.3 First and second defendants had entered into a written agreement on
occupational health and safety in accordance with the provisions of Section
37(2) of the Occupational Health and Safety Act 85 of 1993 in terms whereof
the parties agreed to arrangements and procedures between them to
ensure compliance by the Second defendant in its capacity as mandatory
with the provisions of the aforementioned act. A copy of the agreement is
annexed hereto, marked annexures PT1 and the first defendant prays that
it shall please this Honorable court to incorporate the agreement herein and
read the same herewith.

[8] Furthermore, the further Amended Plea denies that PT was wrongful but if the
Court should find that its conduct was wrongful, then in that event, such wrongful and
negligent conduct did not cause or contribute to the fall. In the alternative, and only in
the event that it is found that PT was wrongful and negligent and that su ch conduct
contributed to the plaintiff’s fall, PT pleads that FA was contributorily negligent as
pleaded in paragraphs 8.1 to 8.4 of the Amended Particulars of Claim and the plaintiff
was contributorily negligent in the following respect:

8.3.1 He had, without the knowledge of the second defendant or any of its
representatives, including the mandatory, removed his personal protective
equipment and safety harness.

8.3.2 He had failed to keep a proper lookout and in so doing executed a
dangerous maneuver when he stepped onto a skylight.

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8.3.3 He failed to have due regard for his own safety.

8.3.4 He failed to have regard to issues pertaining to safety and warnings
imparted to him during toolbox talks.

8.3.5 He failed to avoid the incident when by the exercise of reasonable care he
could and should have done so.

[
[9] In respect of the plaintiff’s further averments as pleaded, PT denies the
allegations and puts the plaintiff to the proof thereof


The second defendant

[10] FA was legally represented and delivered a Plea in early 2018. Subsequently in
May 2020, its legal representatives withdrew as attorneys of record . During pre-trial
proceedings, and while FA still participated in the action, the parties had agreed that the
trial should proceed on the merits first.

[11] In the 29 May 2020 pre -trial, it was noted that the correspondent attorney on
behalf of FA withdrew and that despite attempts by the plaintiff’s legal representative to
enquire about FA ’s position, such attempts proved unsuccessful. Several pre -trials
followed, and on 7 December 2020 Kusevitsky J granted an order whereby FA was
ordered to furnish a reply to the plaintiff’s Rule 35(3) notice within 10 days of service of
the order, failing w hich the plaintiff was entitled to apply on the same papers, duly
supplemented, that FA’s defence be dismissed and judgment be entered in the plaintiff’s
favour. It is evident from the Court file and its contents that a subsequent application for
a dismissal of the defence in terms of the order never occurred.

[12] In a later pre -trial conference on 3 March 2022, it was recorded that FA had
ceased operating approximately three years prior, that it had no assets and was in the
process of de -registering, hen ce no further application to dismiss its defence would

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follow. FA also filed a statement which does not take the form of a Plea. The statement
addressed by Gerald Pietersen, the member of FA, and dated 29 October 2020,
indicates, inter alia, that the close corporation ceased trading two/three years prior and
toolbox records from the day of the incident (the plaintiff’s fall) were held on site in a
safety file at PT’s warehouse, which was standard practice.

The trial
[13] The trial proceeded on the merits. The plaintiff and Dr Willem Johannes du Toit,
an e ngineer, testified. On behalf of PT, only Michael Webster testified, and as
anticipated, FA did not participate in the trial.

The plaintiff

[14] The plaintiff testified that he was working for FA for three months prior to the
incident, employed to paint roofs and remove asbestos, and was working at the PT site
for about two weeks prior to the incident occurring. He previously worked at the Paarden
Eiland and I & J sites where he assisted with asbestos removal for FA. At the I&J project,
he worked at a height of approximately three storeys.

[15] The plaintiff was living in Malmesbury and he secured the job with FA through
friends living in the same area. Transport was arranged from Malmesbury to PT ’s
premises and back every working day, and he explained that they were about eight to
nine employees who worked on the project.

[16] On the I&J project, the workers were required to wear a safety harness when
working on the roof. The harness consisted of straps which could be secured to a safety
line which was anchored or secured to the building, thus if the worker fell from the roof,
his fall would be arrested, leaving him hanging in mid-air. A similar safety protocol was
followed at the Paarden Eiland site.

[17] At the PT site, which forms the subject of the trial, the workers (including the
plaintiff) were not required to clean asbestos from the roofs. His job was to clean fungus
from the asbestos roofs and then paint the roofs. On the first day, the plaintiff and his

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colleagues arrived via bakkie at around 07h00 and they received a safety briefing which
is referred to as a “toolbox talk” provided by one Johan Fourie . The purpose of the
toolbox talk was to inform the workers about their boots, harnesses and safety
equipment which they were required to wear.

[18] Mr Fourie was concerned about the health and safety of the wor kers and gave
the only toolbox chat and demonstrated to them how to wear the harnesses and clip
them onto the safety lines. In cross -examination, the plaintiff clarified that during the
toolbox demonstration, there was no safety line as the talk occurred i n a room. The
plaintiff nonetheless knew how to use the hook on the safety line when wearing a
harness as he did so during the I&J project.

[19] The plaintiff expected that there would be a safety line on the building with which
he and his colleagues coul d use the harnesses but there were none . He agreed with
the statement from PT’s counsel that it would be absurd to provide the workers with the
safety gear and harnesses yet not provide a safety line onto which these harnesses
could be attached.

[20] Providing more detail regarding the safety gear/equipment, the plaintiff explained
that it comprised of white masks, asbestos safety hazmat suits and harnesses, and the
equipment was stored on site. The workers would be provided with a new suit (and
presumably masks) every day and were informed by Mr Fourie that they were always
required to wear the harnesses. The plaintiff testified that when he climbed onto the roof
he did not clip his harness onto any safety line because there was no line available. He
explained, when questioned by his counsel as to the reason why they (the workers)
wore the harnesses when there was no safety line to which it could be hooked, that they
wore the harness “so that we could just have it on”.4

[21] The plaintiff was not taken onto the roof to show/demonstrate to him what needed

[21] The plaintiff was not taken onto the roof to show/demonstrate to him what needed
to be done. The job entailed scrubbing the roofs with a wire brush and then painting it.
The plaintiff made it clear that he knew what needed to be done /what the job entailed
because they had done this kind of work before on other projects.

4 Transcript, 10 February 2025

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[22] When they walked out on site in the morning, the workers wore the safety
harnesses, and to the best of his recollection, nobody from PT was present to check on
the work which they were doing. On 1 3 March 2014, the plaintiff was not wearing a
harness because the harnesses were collected by FA from the site for a job at the
harbour, two days prior. The plaintiff saw the removal of the harnesses.

[23] On the day of the incident, the workers went up onto the roof and the incident/fall
occurred before 10h00. Two of the workers went down the stairs and the plaintiff
returned with a half -full bucket of paint up the side -stairs of the building in order to
access the roof. He walked across the roof along the heads and had not walked across
that area of the roof in the two weeks prior to the incident. As he walked on the roof in
the building marked “X” on Exhibit B, and put his foot down, his foot “vanished” and he
fell through a skylight to the concrete ground below and suffered various injuries: a
cracked pelvis; his elbow and wrist were injured and he had knocked his head lightly on
the ground. The plaintiff spent a month in hospital and was not contacted by PT, Mr
Fourie or Mr P ietersen after his fall. He was aware that someone else fell through the
roof of the building some time prior to his incident.

[24] The plaintiff denied that it was his fault that he fell through the skylight and also
denied PT’s averment that he had not paid attention to the toolbox chat. Those skylights
that had already been cleaned w ere not painted over , and the plaintiff remained
steadfast on this point.

[25] The plaintiff also denied that he received his fall protection equipment, including
a harness, from Mr Fourie on the day of the incident. He had no idea where PT came
upon the story that he had removed his harness prior to the fall. He reiterated that there
was no safety line attached to the building during the two weeks when he worked on the
roofs.

roofs.

[26] The workers spoke amongst each other regarding the fact that they were
unhappy/uncomfortable about wearing a harness when there was no safety line to
attach it to . In cross -examination, the plaintiff agreed with counsel for PT that the
harnesses were useless in the circumstance where there was no safety line to attach

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them to. They were unhappy about this but did not complain to Mr Fourie because they
were simply workers and if there was no work, they would have t o go home . The
foreman was one Recardo, a friend of the plaintiff. The workers spoke about the lack of
a safety line but did not ask Recardo to take up the issue with FA, at the same time, the
plaintiff testified that he was unaware if Recardo had taken up the issue with FA.

[27] Furthermore, the plaintiff denied that it was his fault that he fell th rough the
skylight because he had stepped on it. In cross -examination, he disagreed with PT’s
version that point “Y” on Exhibit B marked the place where he had fallen through the
skylight. The plaintiff also clarified that point “Z”, which was diagonally opposite “X”, was
the point where the workers commenced cleaning and painting the roof after the toolbox
talk. This area did not have skylights and there were no safety lines in area “Z”.

[28] The plaintiff agreed with the first defendant’s counsel that the harnesses were
useless. The absence of the safety line was not reported to anyone because they were
just workers. He denied that he could wa lk on the roof as allowed by the safety ropes,
which is the version put to him by PT’s counsel.

[29] The plaintiff also testified that four workers worked on one roof and the other four
co-workers, were on another roof. The plaintiff did not have knowled ge as to whether
there were safety lines/cables in areas on a roof where he did not work.

[30] The plaintiff did not see Mr Webster, PT’s only witness, on the scene after his
fall, and stated that he also did not see the latter before the incident occurre d. The
plaintiff confirmed his version in chief that on the day of the fall, he was not wearing the
harness because there were none provided, and the eight workers (including him) went
onto the roof.

[31] In re-examination, the plaintiff maintained that the cleaning process started on

[31] In re-examination, the plaintiff maintained that the cleaning process started on
point “Z”5. The plaintiff was on the roof for three to five days before he fell and no
scaffolding was provided to ascend and descend the roof.



5 Exhibit B

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Dr Willem du Toit, plaintiff’s expert

[32] Dr du Toit, an engineer, provided a report dated 15 September 2020 wherein he
offered his expert opinion on the cause of the incident against the backdrop of the Health
and Safety legislation and the responsibilities and duties of the parties and Mr Fourie.
Dr du Toit’s credentials and experience as set out in his curriculum vitae were not in
issue.

[33] Two import aspects regarding Dr du Toit’s evidence are highlighted at the outset
of the summary of his testimony: firstly, he reported and was of the view that Mr Fourie,
as sub-contractor to FA, was the plaintiff’s employer. The evidence of the plaintiff clearly
does not support this view and it was accepted at the trial that FA was his employer.
Secondly, the 2014 Construction Regulations did not apply to the defendants; rather, it
was accepted that the 2003 Construction Regulations applied. Unless the co ntrary is
indicated, the reference to “the Regulations” is a reference to the 2003 Construction
Regulations.

[34] In the matter at hand, PT was the client and FA was the principal contractor. The
relationship between the contractor and principal contract or was governed by
Regulation 5 which indicates each party’s duties . Regulation 4 concerns the client’s
duties and obligations. Dr du Toit explained that PT was required to prepare a baseline
risk assessment for the intended construction work project to th e roofs of the
warehouses but failed to do so. In his report he found that the methods used to mitigate
risks (such as the p laintiff working on a roof without a safety harness connected to a
safety line) were not employed on site.

[35] In respect of the mandat ary contract concluded between the defendants , PT1,
Dr du Toit testified that it was outdated and did not comply with applicable Regulations
at the time.

[36] Insofar as FA’s first quotation6 to PT, the asbestos works would be in terms of

[36] Insofar as FA’s first quotation6 to PT, the asbestos works would be in terms of
asbestos Regulations but there was no reference to working at heights. According to

6 First quote, 2 June 2012

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the witness, a fall prevention plan and fall arrest equipment w ere needed. As to the
scope of work to be performed by FA, guidance was provided by Mr Webster of PT and
information was supplied by the AIA, Asbestos Inspection Authority7.

[37] Dr du Toit was questioned further about FA’s scope of work8 and was of the view
that FA’s second quote contained an asbestos plan. Furthermore, he was of the view
that there was an obligation on PT as the client to identify anything that posed a risk on
site and he reiterated that there was no fall arrest plan when working at heights.

[38] In cross-examination, Dr du Toit agreed with the statement that it was expected
that there would have been a safety harness hooked to a safety rope. He had visited
the site. With reference to the mandat ary agreement in terms of section 37(2) of the
OHS, he agreed that the client was concerned about safety, 9 but his view was that PT
did not quite get it right.

[39] Dr du Toit also agreed that when the incident occurred on 13 March 2014, the
project had been up and r unning for 10 weeks already. He stated that the Regulations
applicable were the 2003 Construction Regulations and that at the time of
commencement of the project, there was no obligation on PT to prepare a baseline risk
assessment, because Regulation 5(1) (a) did not exist in the 2003 Regulations10.

[40] Additionally, Dr du Toit did not verify the place where the plaintiff fell through the
roof and no specific place was pointed out to him. He confirmed that it was not reported
to him that according to the plaintiff, there were no safety ropes attached to the roof.
Had he known this, he would have included it in his report.

[41] Furthermore, had he been informed that the PPE equipment (including
harnesses) were removed from site two days before the incide nt, as testified by the
plaintiff, he would have referred thereto in his report. His testimony was that in those
circumstances, “they” should have ceased work immediately.

circumstances, “they” should have ceased work immediately.


7 Dr du Toit testified that he did not see such information in AIA report
8 See p52
9 Dr du Toit could not comment that PT1 was prepared by FA.
10 The 2014 Regulations were published in GG 37305 of 7 February 2014, at a time when the project of
PT had already commenced.

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[42] Dr du Toit confirmed/agreed that PT was not in the business of roof construction.
According to his professional opinion, if there was a broken roof sheet and PT was not
competent enough in construction then they should have appointed an expert in
construction to attend to the damaged roof sheets. He also denied that Ms Cecilia Keet
of the Occupational Hygiene Monitoring Services CC was the kind of expert he referred
to as she attended to an asbestos risk assessment11. He testified further that if the risk
of falling from height was apparent to the contract or, then it would also have been
apparent to PT.

[43] From the AIA Report, Dr du Toit could not infer that a health and safety report
was received. He had no issue with the asbestos removal procedures and when
questioned about the AIA report, clarified th at it related to asbestos removal, not
construction and was not a health and safety plan. In respect of the content of a health
and safety plan, the witness referred in some detail to Regulation 7.

[44] Furthermore, as PT had failed to discuss and negotiate a health and safety plan
with FA as required by Regulation 4(2), it had not absolved PT from complying with
Regulation 5(1) in that as client, it was required to have its own health and safety plan.
Dr du Toit explain ed that the contractor, FA, would have had to be given P T’s health
and safety specifications in accordance with Regulation 5(1) in order to provide its health
and safety plan as the contractor 12. He agreed that it was FA’s obligation to supervise
construction work and appoint an employee as construction supervisor as required by
Regulation 6(1).

[45] On the facts, Ricardo was the foreman of FA, who should have seen that there
were no safety ropes/lines attached to the roof, and which led to the plaintiff’s fall. The
witness also blamed the plaintiff for failing to refuse to work without a harness and added
that the appointment of a construction safety officer in terms of Regulation 6(6) was the

that the appointment of a construction safety officer in terms of Regulation 6(6) was the
responsibility of FA and not PT, the client. He stated that if there were hidden risks, and
such officer did nothing to monitor the site and keep documentation, then the
responsibility would be that of FA.


11 Ms Keet’s report could only be referred to insofar as it referenced a factual scenario and not insofar
as what it purported to be.
12 Regulation 5(1), 2003 Regulations

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[46] Dr du Toit confirmed that FA was also required to comply with Regulation 7(4)
which called for t he appointment of competent person to inform, instruct and train
workers regarding any hazard and procedures before work commenced. It was FA’s
responsibility to have a risk assessment done by a competent person and the failure of
FA to do so, was not to b e blamed on PT. Where the workers (such as plaintiff) were
not adequately trained by a competent person, 13 PT cannot be blamed as the
responsibility lay with FA.

[47] The contractor was required in terms of Regulation 8 to have a fall protection
plan implemented and the provision of PPE was the responsibility of FA. Despite efforts
to distance PT from Regulation 8, which was clearly the obligation of FA, PT was
required to discuss a health and safety plan, which included fall protection.

[48] It was put to the witness that PT provided the AIA report to FA and regarded it as
a health and safety plan, but Dr du Toit remained steadfast that such report was in terms
of asbestos removal. The failure to comply with Regulation 8(4) would be that of the
contractor.

[49] When pressed further Dr du Toit was adamant that he saw no fall protection plan
in terms of Regulation 8(3) and if a proper fall protection plan had been implemented,
the fall would not have occurred. Dr du Toit could not comment on whether there was a
health and safety file as he never saw one. As far as the skylights were concerned, he
testified that written indication should have been given of the risk associated with
skylights14.

[50] In re-examination, Dr du Toit stated that Mr Webster, if he walked around the site
and observed that the workers were not wearing hazmat suits and masks, was obliged
to report it to the contractor.15 Furthermore, the client was required to stop the contractor
from executing construction work if it was observed that the latter was not complying

from executing construction work if it was observed that the latter was not complying
with its own health and safety plan referred to in Regulation 5(1). He also agreed that
fungal growth occurs on skylights, and depending on where in the warehouse it

13 Regulation 7(4), 2003
14 Presumably by the client, PT
15 Regulation 4(1)(e), 2003

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occurred, one may misjudge oneself in that the roof sheets and skylights may look
similar.


Michael Webster

[51] Prima Toys at one stage had several factories dealing with the manufacturing of
toys but due to the advent of Chinese imported toys, the factories were forced to close.
At the time of the incident, the business was confi ned to warehousing and distribution
of toys. Mr Webster had been employed by PT for 25 years and was retired and residing
in Zimbabwe. At the time of the incident, he was the loss control manager and attended
to building maintenance.

[52] On behalf of PT, Mr Webster commissioned Occupational Hygiene Monitoring
Services CC16 to prepare an asbestos risk assessment in respect of the asbestos roofs
on the PT site. He made enquiries regarding repairs and cleaning to the asbestos roofs
and was provided with the names of three companies. Ms Keet’s AIA report was
provided to the competing companies.

[53] Focus Asbestos was represented by Gerald Pietersen who visited the PT site for
purposes of a walking inspection. Mr Webster and Mr Pietersen conducted an inspection
of the premises for one and a half hours, whereafter the latter was left on his own to
freely inspect the buildings. Mr Webster tes tified that he presumed Mr P ietersen took
measurements and looked at the roofs of the warehouses.

[54] According to the witness, both men entered the warehouse building where the
plaintiff stated he had fallen through a skylight . According to Mr Webster, the incident
occurred at point “Y”17. Both men looked up at the roof from their vantage positions
inside the warehouse and the roof seemed normal and the skylights were clear.


16 Exhibit A, p55-75
17 It is noted that there remained a dispute as to the place where the plaintiff fell through the skylight:
according to the plaintiff, it occurred at point “X” and according to Mr Webster, the fall occurred at point
“Y”

17

[55] Mr Webster testified that the skylights in the building in question were not
manufactured of fibreglass, rather of polycarbonate18, and the result was that they were
a lot cleaner and clearer than in the old buildings. According to Mr Webster, the older
warehouse buildings contained fibreglass skylights. After the inspection on 2 June 2012,
FA provided a quotation to PT 19. The scope of the work to be performed by FA as per
the June 2012 quotation, included the replacement of dirty fibreglass with polycarbonate
sheets instead.

[56] Mr Webster had attended other sites where FA performed asbestos roofing work
in order to inspect their standard of work, and satisfied himself with the standard of
workmanship. Accordingly, he recommended FA to his supervisor, after a discussion
about the quotes. Mr Webster w as satisfied that FA was a fully certified asbestos
removal business and were one of the businesses recommended by Ms Keet who was
registered as an asbestos expert with the Department of Labour.

[57] In respect of the mandatary agreement, PT1, Mr Webster testified that FA drafted
the contract which was on PT’s letterhead. Changes were made thereto and it was
signed on 9 April 2013, but work had already commenced on the site prior to signature.
Mr Webster was referred to various clauses in the mandat ary agreement, all of which
he confirmed.20 The purpose of the agreement in respect of FA’s employees was to
ensure that the contractor complied with the OHS Act.

[58] Mr Webster had no knowledge of the 2003 and 2014 Construction Regulations
when concluding the contract and had only become aware of them during the trial. He
confirmed the June 2012 quote provided by FA and explained that a decontamination
chamber for the workers’ removal of PPE equipment was built by FA and provision
made, inter alia, for a lock-up garage for storing PPE.21

[59] Mr Webster signed the mandat ary contract on behalf of PT. The terms were

[59] Mr Webster signed the mandat ary contract on behalf of PT. The terms were
retyped by PT, and despite some confusion, it was accepted that FA was the mandatary
and PT was the client/principal. On the date the mandatary agreement was signed, FA

18 Point “y” on Exhibit B.
19, Quotation, p50, Exhibit A
20 Clauses 3,5,6,8,11 and 20
21 Point A on Exhibit B

18

rendered an invoice to PT for a first payment by PT and payment was subsequently
made.

[60] After FA commenced work on the site, Mr Webster would walk around the PT
site/premises at least once a day. From ground level, he saw FA staff on the roof
watering, scrubbing and performing various tasks. As the project progressed, every
three to four weeks, he would climb up a ladder to roof height and inspect whether the
workers were performing the work they were required to do.

[61] He recalled what he observed: the FA workers were dressed in hazmat suits and
masks, wearing the harnesses which had clasps hooked onto safety lines which
stretched acros s the building. He explained that when the workers arrived in the
morning, they donned the hazmat suits, masks and harnesses before being admitted to
the area where they were required to work. Mr Webster did not know how the safety
lines were attached to the roofs. He understood that the purpose of the safety harness
was to allow the workers to move along the roofs. However, he admitted that there were
not safety lines across the roofs of the entire complex as shown on Exhibit B.

[62] Mr Webster also denied the plaintiff’s version that there were no safety lines and
harnesses and confirmed that there would be no point having a safety harness if there
were no safety lines attached across the roofs. He also confirmed that he did not climb
up a ladder to view the roof at point “Y” so did not see if there were (or were not) safety
lines. He was adamant that point “Y” on the building complex was where the incident
had occurred.

[63] After being alerted to the incident, Mr Webster proceeded to point “Y” and found
the plaintiff lying on the ground inside the warehouse. He called for an ambulance and
testified that a first aider 22 attended to him, but the plaintiff’s injuries were beyond her
expertise. According to Mr Webster, the plaintiff was not wearing a mask, hazmat suit,

expertise. According to Mr Webster, the plaintiff was not wearing a mask, hazmat suit,
nor a safety harness and was dressed in normal clothes. The foreman, who himself was
wearing a harness, was summoned.


22 The first aider was on the PT premises

19

[64] Mr Webster could not address the plaintiff’s testimony that the PPE equipment
suits and harnesses were removed by FA two days prior to his fall. He stated that had
he been informed thereof, he would have spoken to Mr P ietersen or Mr Fourie and
halted the work until the equipment was returned and a safe working environment/
premises was restored. Common sense informed him that if you work at heights, you
take certain precautions.

[65] As for the skylights, he testified t hat FA had marked off the skylights with sticky
tape across the skylight. Mr Webster testified that from underneath 23, meaning inside
the warehouse building, he could see fungal growth on the skylights and they (the
skylights) were lighter in colour than the roofs. He admitted that he was not up on the
roofs so could not comment on the plaintiff’s statement that the colour of the skylights
and roofs were similar. Notwithstanding the latter testimony, Mr Webster stated that one
could not be mistaken as the polycarbonate skylights were distinguishable from the roof.

[66] Mr Webster testified that Mr Pietersen conveyed to him that he would report the
incident as he/FA was the plaintiff’s employer. Mr Webster considered that in terms of
the mandatary agreement, the OHS Act would be complied with.

[67] During cross-examination, Mr Webster, when questioned about whether PT had
a document in place in respect of the health and safety requirements, testified that he
did not recall but that PT had complied with the OHS Act. With regard to the mandatary
agreement, Mr Webster could not recall whether PT/he were satisfied as to the budget
for health and safety measures for the duration of the contract. 24 He could not dispute
the plaintiff’s testimony that on some days, the workers did not have hazmat suits and
PPE equipment though he was not aware of this.

[68] Mr Webster explained that initially there was a safety committee on the premises,

[68] Mr Webster explained that initially there was a safety committee on the premises,
but conceded that the safety and condition of PT’s roofs was not really a concern of the
safety committee which dealt mainly with “housekeeping” issues. Furthermore, he was
unable to confirm that the clauses in PT1, were in conformity with the OHS Act. The

23 Inside the warehouse building
24 Exhibit A, PT1, par 3, p35

20

introduction of PT1 was read out to Mr Webster 25 and he was asked about the
company’s (PT) health and safety requirements and rules and regulations and admitted
that he was unsure whether PT had a document setting out the company’s health and
safety requirements.

[69] Furthermore, Mr Webster did not satisfy himself as to whether the mandatary had
made adequate financial provision for health and safety, when he forwarded FA’s quote
to PT’s chief executive officer for approval. With reference to PT1, Mr Webster conceded
that clause 3 dealing with “warranty of compliance” was confusing and that PT had not
checked up on FA and/or Mr P ietersen prior to accepting the quote . He assumed that
FA had performed the kind of work agreed to many times and that “they had everything
in order”26.

[70] After the plaintiff’s fall, Mr Webster spoke to Recardo (the foreman) and thereafter
to Mr Pietersen. When he reported to Recardo and Mr Fourie that the plaintiff was not
wearing a hazmat suit and harness, their response was that the plaintiff should not have
been on the roof. He testified that Recardo , who came upon the plaintiff in the
warehouse when alerted to the incident , was wearin g a harness. Mr Webster was
unaware whether Mr Petersen reported the plaintiff’s fall to the factory inspector or
whether FA’s investors paid out on the insurance.27

[71] Notwithstanding his response that he could not comment on the plaintiff’s version
that the suits and harnesses were removed two days prior, Mr Webster’s view was that
he found it hard to believe that the plaintiff would be happy to go onto the roof without a
harness. He understood though that, as counsel put it, “the average man on the side of
the road needs to earn his crust”28.

[72] Nonetheless, the witness’s view was that as the plaintiff had worked with FA for
quite some time prior to the fall, he was /would be aware of FA’s rules and regulations.
Mr Webster conceded that FA’s rules and regulations (regarding employees, health and

Mr Webster conceded that FA’s rules and regulations (regarding employees, health and

25 Exhibit A, p35
26 Transcript, p481
27Exhibit A, p47 (FA’s Old Mutual policy)
28 Transcript, p484

21

safety) were unknown. As far as supervision, discipline and reporting were concerned,29
he presumed the foreman of FA would be responsible therefor.

[73] Mr Webster and Mr Pietersen signed PT1 on behalf of the respective defendants,
and as for the quotations, Mr Webster could not explain why FA’s two quotes were
almost a year apart. He understood that PT was being quoted for the “removal of old
dirty fibreglass and yellowed plastic sheets and fitting of new polycarbonate sheets in
their place”.30 The quotation was for the entire roof area of PT31.

[74] According to Mr Webster, Mr Pietersen inspected the roofs of the buildings shown
as situated between points “A” and “Y” on Exhibit B. When asked about the “roof
cleaning” description in PT132, he stated that neither he nor the CEO of PT knew what
the company’s working at heights regulations were.

[75] In respect of the AIA Report, Mr Webster agreed that the report does not refer to
working at heights nor regulations related thereto. Furthermore, he agreed with the
plaintiff’s counsel’s statement that the purpose of such report related to the cleaning and
removal of asbestos.

[76] With reference to the two quotes, it was put to Mr Webster that it was unclear
why FA quoted twice: in quote 2 of 29 July 2012, additional amounts for bird proofing
and repairs to vents were quoted, yet these items/work were quoted for in the 2 June
2012 quote33. Mr Webster was unclear why this was the case.
[77] With regard to the skylights, and the two quotes, Mr Webster was unable to
indicate when it came to FA’s attention that it (FA) were not only removing old, dirty
fibreglass and yellowed plastic sheets and replacing these with polycarbonate sheeting
(quote 1) but w ere also to remove and replace broken and damaged fibreglass and
plastic sheets (quote 2).


29 Par 6, PT1, p35
30 First quote, Exhibit A, p50
31 This includes all the buildings, and points A, X, Y and Z, Exhibit B
32 PT1, Exhibit A, p52
33 PT1, Items (b) and (e), p50

22

[78] Mr Webster stated that he was not initially aware that there were broken and
damaged fibregl ass and plastic sheets on the roo fs and admitted during cross
examination that neither he nor PT brought any broken and damaged fibreglass or
plastic sheet skylights to anyone’s attention. He clarified that on the day of his visit prior
to quoting for the work, he showed Mr P ietersen the roo fs then left him to do his
assessment.

[79] Various Regulations were put to Mr Webster and are not repeated in the
judgment for the sake of brevity. Mr Webster admitted that PT did not prepare the health
and safety specification for the work34 because PT relied on FA to “do a job in terms of
whatever regulations were enforceable” 35. He explained further that PT relied on the
fact that FA were a reputable construction compa ny and had knowledge of the
legislation and relied on FA in respect of issues related to the roofs such as construction
issues and condition.

[80] In respect of Regulation 4(1)(b)36, Mr Webster indicated that the only information
brought to the attention of FA was the AIA report and he admitted that the latter report
did not refer to broken or damaged skylights, not working at heights and the
requirements applicable thereto. Furthermore, with reference to Regulation 4(1)(d), Mr
Webster also admitted that m onthly audits to ensure that PT’s health and safety plan
were implemented, were not done officially. There was only unofficial contact with FA
as to the progress of the project.

[81] In respect of Regulation 5(1) he stated th at PT was not provided with a health
and safety plan by FA. Furthermore, PT did not comply with Regulation 4(2) in that there
was no negotiation with FA regarding the contents of the health and safety plan
contemplated in Regulation 5(1), nor was there compliance with Regulation 4(3).

[82] In respect of Regulation 4(4), Mr Webster admitted that he did not speak to any

[82] In respect of Regulation 4(4), Mr Webster admitted that he did not speak to any
references nor previous clients of FA prior to contracting with the latter . He concluded
that FA was a reputable firm in view of his reliance on Ms Keet’s refe rence and the

34 Regulation 4(1)(a), 2003 Regulations
35 Transcript, p512
36 The client shall promptly provide the principal contractor/its agent with any information which might
affect the health and safety of any person at work carrying out construction work.

23

standard of their work on other projects. Furthermore, Mr Webster candidly stated that
the Construction Regulations were not complied with because he was unaware of them
at the time and had relied upon the AIA Report and FA’s knowledge of the Regulations
and their guidance.

[83] When pressed, he admitted/conceded that he/PT assumed that FA knew the
Regulations. He agreed with the plaintiff’s counsel that the agreement, PT1, did not deal
with the Regulations referred to earlier. He also did not disagree with the statement that
in view of its failure to address and include the Regulations, therefore the mandatary
agreement was not in compliance with the OHS Act. Mr Webster testified that he was
unaware at the time, of PT’s statutory obligations and relied on FA which was contracted
to carry out a job.

[84] He also admitted that nobody at PT in the 25 years that Mr Webster was
employed there, had received training in health and safety. The reason for obtaining
quotes for asbestos removal on roo fs was because he became aware that legis lation
regarding asbestos and their risks had changed and thus he alerted the CEO thereto ,
and he was given the green light to source quotes and obtain an AIA report. He frankly
admitted that PT did not undergo any “conscientizing” about health and safety.

[85] PT was able to afford to comply with the health and safety Regulations at the
time but nobody at PT ensured that the contract with FA complied with the Regulations.
Initially, when FA started, Johan Fourie represented the latter, but Mr Webst er was
introduced to the foreman Recardo, who would deal with day -to-day issues. He
confirmed that there were eight to nine workers and he had on an occasion seen a
worker without a hooked-up harness and took it up with Recardo which resulted in the
situation being rectified immediately.

[86] According to Mr Webster, it was FA’s responsibility to secure safety lines to the

[86] According to Mr Webster, it was FA’s responsibility to secure safety lines to the
buildings and to ensure a safe working environment on the roof. Mr Webster confirmed
under cross examination that he did not inspect the roof where the plaintiff stated he fell
through nor check to see if there was a safety line attached to that building37.


37 Identified as the building marked with “X”, Exhibit B

24

[87] Mr Webster also conceded that it was never put to Dr du Toit that there was a
hazard tape to denote the skylights. Mr Webster saw the tape on the area of the two
buildings opposite the building marked “X”, which was not where the plaintiff stated that
he fell through the skylight.

[88] In re-examination, Mr Webster testified that he never felt it necessary to inform
Mr Pietersen that what he was looking up at, were skylights and that there was thus a
fall hazard there. He assumed that Mr Pietersen, in his experience in working at heights,
would appreciate the heights problem, but admitted, that he had made such assumption
as to FA’s expertise and knowledge.

Material issues in the matter

[89] One of the challenges in this matter is that the main role players in the parties’
versions were never called as w itnesses: Recardo the foreman, Mr Fourie the
supervisor and the first aider on the scene after the plaintiff’s fall. I appreciate that
Recardo and Mr Fourie would potentially have been witnesses for the second
defendant, FA, and could have been subpoenaed, but the absence of possible
corroboration and clarity on certain alleged facts regarding the fall protection equipment
and safety lines, has been problematic.

[90] Another difficulty is that the contractor, FA, never participated in the trial, which
created a situation where the question of the supply or removal of PPE/harnesses, and
the absence or not of safety lines on the building where the plaintiff fell through, all turns
on what the most probable version was . This is not a matter where it can be said that
any of the three witnesses in the trial – the plaintiff, Dr du Toit and Mr Webster - were
bad or evasive witnesses. The fact that the plaintiff was unsophisticated has, in my view,
little bearing on my findings as to the acceptance or otherwise of his version. Ultimately,
as far as the working conditions, state of the roof(s) and the incident are concerned, one

as far as the working conditions, state of the roof(s) and the incident are concerned, one
is left with the testimonies of the plaintiff and Mr Webster. As an expert, Dr du Toit’s
testimony was largely about the relationship between the defendants and the obligations
in terms of the Regulations. His testimony is accepted.

25

[91] While much was made of the various Construction Regulations, in my view, the
case turns largely on the following issues: the probabilities of the plaintiff’s version (as
referred to above) , negligence, causation and whether there was contributory
negligence on the plaintiff’s part. It goes without saying that the parties were not at liberty
to stray beyond their pleadings.

[92] The first consideration is whether the plaintiff has managed to prove on a balance
of probabilities, that he was not provided with adequate or any fall arrest equipment ,
and that there was no safety line on the roof , which resulted in his fall through the
skylight. Significantly, counsel for the plaintiff, at the commencement of closing
submissions, disavowed a reliance on the statutory Construction Regulations as a basis
for stating that the defendants are liable to the plaintiff for damages which he pleads he
incurred because of the incident.

[93] The plaintiff’s c ounsel submitted, however, that the statutory Regulations must
be considered against the backdrop of the conduct of the defendants in the matter, and
in this respect, I agree with the submission . That said, regard must still be had to the
basis upon which the plaintiff pleads that each or both defendants were negligent, which
negligence resulted in his fall to the ground. Counsel for the first defendant, on the other
hand, submitted that the first hurdle which the plaintiff was required to overcome was to
prove on a balance of probabilities that he was not provided with adequate fall protection
on the day of the incident. This submission is also correct.


Failure to provide the plaintiff with fall arrest equipment and a safety line

[94] It bears emphasising that the plaintiff’s case, as pleaded, is that a legal duty was
imposed on the defendants to prepare a health and safety plan, to discuss and negotiate
such plan and to comply with Regulations 5(1) read with 4(1)(d) and 4(1)(e) respectively.

such plan and to comply with Regulations 5(1) read with 4(1)(d) and 4(1)(e) respectively.
As alluded to above, I shall accept that the applicable Construction Regulations at the
time were the 2003 Regulations.

[95] It is further pleaded that the defendants breached their duty to the plaintiff when
they failed to ensure that he was not exposed to hazards when they knew or ought to

26

have known that it was dangerous to allow him to work at an elevated level without fall
arrest equipment. The plaintiff further relies on the common law when he pleads that PT
and/or FA failed to take any or adequate steps to prevent him from falling through the
roof when they could and should have done so.

[96] PT, as the client and owner o f the premises, denies that the contractor failed to
provide the plaintiff with adequate fall arrest equipment on the day of the incident.
Instead, its case is that Mr Fourie supplied the plaintiff with such equipment but that he
(the plaintiff) had failed to wear it or removed it prior to his fall and thus , the plaintiff’s
own conduct was the proximate cause of his fall ; alternatively, it amounted to a novus
actus interveniens, alternatively, it constituted a voluntary assumption of risk38. The first
defendant pleads further that FA and the plaintiff were contributorily negligent in the
circumstances.

[97] The plaintiff was the only witness other than Mr Webster regarding the events of
13 March 2014. It was undisputed that he was one of eight or nine workers employed
by FA to clean and maintain the roo fs on the PT buildings as shown on Exhibit B , for
the duration of the project. It was also not disputed that half the team would work on one
building and the other half would work on another building. A most crucial part of his
case was that the contractor had removed the harnesses two days prior to his fall and
thus there was no safety harness to wear while on the roof and furthermore, there was
no safety line either.

[98] In my view, it was insufficient for the plaintiff to prove, on a balance of probabilities
that on other roofs depicted on Exhibit B, there were no safety lines attached for workers
to clip their harnesses into place. While this may be relevant in the assessment of
whether he discharged the onus of proof, the plaintiff was required to prove on the

whether he discharged the onus of proof, the plaintiff was required to prove on the
probabilities that on the morning of the incident, there was no safety line on the roof he
worked and walked on and no harness worn as they were unavailable.

[99] Having ring-fenced what the plaintiff was required to prove, the assessment as
to whether he discharged this onus resting on him, follows. Due to his work on other
projects for FA, it is accepted that the plaintiff was familiar with the fall arrest equipment

38 Further Amended Plea, A15-A16

27

as he had worked at heights prior to this incident, and I also accept and find that he was
aware of the necessity and significance of having to use such equipment when working
at a height on a roof of a building.

[100] Whether there was only one toolb ox talk by Mr Fourie or daily talks prior to the
workers starting their tasks for the day, the evidence indicates that FA indeed provided
toolbox talks to alert the workers, including the plaintiff, to the necessity of using fall
arrest equipment including a harness. The plaintiff’s denial that he did not heed the
toolbox talks, as pleaded by PT, was consistent, and there is no further evidence in the
trial to suggest that he ignored Mr Fourie’s explanations and demonstrations.

[101] From the evidence considered holistically, it is accepted that the plaintiff was not
wearing a safety harness on the day he fell . This version is c onfirmed by Mr Webster
who testified that he arrived on the scene in the warehouse to find the plaintiff lying
injured on the ground without a harness and PPE gear , and wearing normal clothes.
The plaintiff also pleads that he was not wearing fall arrest equipment on the morning
in question.

[102] The question then arises as to how it came about that the plaintiff was without a
harness on the morning of the incident. The plaintiff’s case is that he was not provided
with a harness as the harnesses were remo ved by the contractor two days prior and
that he witnessed the removal from the storage area on the site. His version that the fall
arrest equipment was removed from site was not contradicted by Mr Webster, who had
no knowledge of such removal.

[103] This is unsurprising as on Mr Webster’s version, even though he walked around
the buildings once a day and climbed ladders mounted against buildings every three to
four weeks to check the progress of the roof work, he could not gainsay the plaintiff’s
version regarding the removal of harnesses. There was also no evidence led to establish

version regarding the removal of harnesses. There was also no evidence led to establish
any kind of timeline as to the whereabouts of Mr Webster on the day of the incident.

[104] To add, Mr Webster recalled an incident prior to the plaintiff’s fall w here he saw
a worker on the roof without a harness and he immediately alerted Recardo about this
failure. The work was immediately halted, the situation rectified and apologies were

28

offered to Mr Webster/PT. It is evident from this testimony, considered with that of the
plaintiff, that there was on PT’s version, at least one occasion where a harness was not
worn by a worker who was working on a roof, though the reason is unknown.

[105] Aside from the above, Mr Webster’s testimony was that removal of PPE from the
site two days prior to the plaintiff’s fall, was never mentioned to him either by Mr
Pietersen or Recardo. Then again, Mr Webster was also not informed that on an
occasion, a worker was allowed on the roof39 without a harness.

[106] Added to the above factors, the plaintiff’s testimony that on some days, the
workers did not have hazmat suits and harnesses to wear remained consistent
throughout his testimony including lengthy and persistent cross examination.
Furthermore, Mr Webster testified that on arrival at the injured plaintiff, he was later met
by Recardo who was wearing a harness. The submission by PT’s counsel was along
the line that if Recardo, the foreman, wore a harness, then the plain tiff’s version
regarding removal and thus unavailability of harnesses, was questionable.

[107] On the plaintiff’s version, the removal and unavailability of PPE and harnesses
was raised with other workers and Recardo . The plaintiff testified that despite the
workers talking about the lack of provision of safety equipment, Recardo and/or Mr
Fourie seemed not to have remedied the situation. Once again, there is no evidence to
contradict this version of events , which leads me to the following query: if Recardo/Mr
Pietersen/Mr Fourie had intervened regarding the “missing” harnesses and PPE, by all
accounts it would have been expected that work on the roofs would be halted until the
harnesses were returned or replaced. Furthermore, had the work been halted, Mr
Webster would have testified so, but aside from one incident referred to above, there
was no evidence that work was halted because FA had to obtain replacement harnesses
or the like.

or the like.

[108] The picture painted by the plaintiff, which was not contradicted, was that safety
equipment was held at a lock up garage on the PT site and sporadically provided to the

39 Presumably with other workers as they were split into two teams

29

workers, who were at times seen without harnesses. Mr Webster could not dispute the
plaintiff’s version that on some days, workers did not have hazmat suits and harnesses.

[109] This brings me to Mr Webster’s testimony that when he came upon the injured
plaintiff on the warehouse floor, he later saw Recardo who was indeed wearing a
harness. Counsel for PT has argued that if regard is had to this evidence, then the
probabilities of the plaintiff’s version are questionable. In my view, it is not so
straightforward. The evidence of the two witnesses, must be considered objectively and
holistically, as opposed to focussing on one aspect to bolster a view that the plaintiff’s
version is improbable.

[110] To clarify, it must be remembered that while Mr Webster did a daily walk -about,
he also stated that he only climbed a ladder every three to four weeks to check the
progress of the work and did not climb onto the roofs. Secondly, there is no evidence to
suggest that Mr Webster saw Recardo earlier the morning on the building “X” where the
plaintiff says he was when he fell. Thirdly, the workers worked in two teams, with one
team on one building and the other team on another building.

[111] No evidence was presented that Recardo was on the same roof (and therefore
the same work team) as the plaintiff. In fact, the testimony of Mr Webster that he called
Recardo from the warehouse when he was alerted to the plaintiff’s fall, supports the
more probable view that Recardo and the plaintiff were not on the same building prior
to the plaintiff’s fall . The point is that it cannot simply be concluded that because
Recardo was seen to be wearing a harness, therefore there must have been a harness
available for the plaintiff and he either failed to wear it or removed it prior to the fall.

[112] In view of the above assessment of the evidence, I find that the plaintiff’s version
as to the removal of harnesses prior to the incident is the more probable version and

as to the removal of harnesses prior to the incident is the more probable version and
cannot be discounted. While counsel for PT argued that it would make no sense for the
contractor to remo ve this equipment given the contract concluded with PT, the
submission is unsubst antiated by any evidence presented at the trial and opens the
door to speculation. Furthermore, Mr Webster’s version that Recardo and Mr Fourie
made certain utterances to him about the plaintiff being on the roof without a harness,
was never independently corroborated.

30


[113] In respect of the plaintiff’s version that there was no safety lines attached to the
building, Mr Webster, during his walk-abouts, observed that there were safety lines but
not attached to all the buildings forming part of the complex seen on Exhibit B. Mr
Webster did not have independent knowledge of safety lines and thus, could not, in my
view, dispute the plaintiff’s version that at the building marked “X”, where he maintained
he fell, no safety lines were attached to the building.

[114] Aside from the plaintiff agreeing that there would be no point in wearing a harness
if there was no safety line to attach it to, there is no other evidence to gainsay the
plaintiff’s version regarding no safety lines on building “X”. At the same time, and despite
the potentially illogical (though dangerous) situation where a worker would wear a
harness knowing that there was no safety line to which he was to attach it, if the
probabilities indicate that PPE was removed to take to another site, then it is not a far
stretch to conclude on the probabilities that it was not strange that some buildings would
not have safety lines.

[115] In the normal course of working at heights the suggestion of “no harness but a
safety line”, and vice versa, seems illogical but in the circumstances of this matter a nd
having the benefit only of Mr Webster and the plaintiff, who se version was not so
improbable when considered against the peculiar facts of the case, the conclusion does
not seem so unrealistic.

[116] I agree with PT’s submission that it would have made little sense for FA to have
complied with its legal duty to provide fall arrest equipment to workers on some days,
but not on others, but the problem is that there is no version from the contractor to shed
more light on the issue. Mr Webster was clearly not available 24/7 to check on the
workers, and on his own admission, stated that safety lines were not attached to all the
buildings.

buildings.
[117] On the aspect of Dr du Toit’s lack of knowledge that the plaintiff had no harness
(due to its removal from the site) and there being no safety lines attached to building
“X”, it is correct that he was only made aware of this during the trial, for reasons unknown
to the Court. However, I accept that had he been aware of these aspects of the plaintiff’s
case, Dr du Toit would have included it in his report.

31


[118] As the essential averment and facts upon which the plaintiff relies in respect of
liability against FA is that h e was not provided with adequate fall arrest equipment by
them at the time of the incident, in view of the above discussion, and the pleadings, I
find that the plaintiff has proved on a balance of probabilities that no fall arrest equipment
(harness) was supplied or made available to him by FA on the morning of the incident
and no safety lines were secured on the building on which he fell through the roof.


The contractor’s liability

[120] I agree with the submission by PT’s counsel that from the plaintiff’s pleadings,
the liability of FA is simply that it failed to provide him with fall arrest equipment . As set
out above, having found that his version is the more probable, and hence it follows that
the plaintiff has established that FA failed in its duty to him as pleaded in paragraph 9
of the amended Particulars of Claim. In this regard, the plaintiff has succeeded in
showing a wrongful omission by FA toward him.

[121] In the result, it is found that the plaintiff has proved on a balance of prob abilities
that FA breached its duty toward him by allowing him to work at a height and in an
elevated position on the roof of a building and thus exposing him to hazards in such an
environment, without the use of fall arrest equipment to prevent him from f alling.40
Accordingly, the further finding is that the plaintiff has established that FA failed to take
any or adequate steps to prevent him from falling through the skylight of the roof when
it could and should have done so. Accordingly, the plaintiff’s claim against the second
defendant on the merits, succeeds.
The liability of Prima Toys

[122] In respect of the first defendant, the position is slightly different. The plaintiff’s
pleaded case on the reliance of the Construction Regulations and breach of the OHS
Act does not create liability in delict although, in terms of section 37(1) of the Act, there

Act does not create liability in delict although, in terms of section 37(1) of the Act, there

40 Dr du Toit’s evidence, which is accepted, is that FA was required to appoint a construction safety
officer in terms of Regulation 6(6) which it failed to do; and it was required to do a risk assessment in
respect of working at heights, which it also failed to do.

32

may be criminal sanction upon conviction. While FA was an independent contractor, PT
cannot be held vicariously liable for the conduct of the contractor41.

[123] The liability, if any, which PT has is a personal liability which relates to, generally,
a failure to prepare health and safety specifications, the failure to have a health and
safety plan in place and the breach of a common law legal duty towards the plaintiff to
ensure that he was not exposed to hazards while on the roof. In respect of PT, as owner
of the premises, the hazard relates to the danger caused by skylights which were
covered by dirt and moss as the plaintiff pleads and broken and damaged skylights and
the consequence of stepping on such skylight.

[124] A defendant owes a duty of care to a plaintiff if he is a person in respect of whom
harm may reasonably be foreseen 42. The parties referred to Langley Fox Building
Partnership (Pty) Ltd v De Valence 43, a judgment in which the SCA considered the
contractual relationship between a building contractor and sub-contractor but where the
principles largely also apply to the relationship between a principal/employer and an
independent contractor. In applying the test to determine the existence of a duty of care
in a particular case, Goldstone AJA44 stated the following:
“In my opinion, it follows from the aforegoing that in 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,

41 See Law of Delict Seventh Edition Neethling Potgieter Visser p391
42 Premier of the Province of the Western Cape v Faircape Property Developers (Pty) Ltd 2003 (2) All
SA 465 (SCA) par [42]
43 1991(1) SA 1 (AD) 37-40 (Saflii version)
44 As he was

33

(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?
Only where the answer to the first two questions is in the affirmative does a legal
duty arise, the failure to comply with which can form the basis of liability.
It follows from the aforegoing that the existence of a duty upon an employer of
an independent contractor to take steps to prevent harm to members of the
public will depend in each case upon the facts. It would be relevant to consider
the nature of the danger, the context in which the danger may arise, the degree
of expertise available to the employer and the independent contractor,
respectively, and the means available to the employer to avert the danger. This
list is in no way intended to be comprehensive. It does follow, however, that the
duty of an owner of premises such as the present may not be the same as that
of the building contractor employed by him to do the work. That question, too,
must be answered with due regard to the facts.”

[125] Considering the above test in Langley Fox , and the facts of the matter, the
reasonable owner of the premises would have foreseen the risk of working at height s
on the roofs of its buildings in consequences of the cleaning work which it employed FA
to do. This is especially so knowing that in terms of the quotes, FA was required to
remove old dirty fibreglass and yellow plastic sheets and in terms of the second quote,
it was also to remove and replace broken and damaged fibreglass and plastic sheets.

[126] The very nature of the work at a height was dangerous but the added danger
lurked in having old, damaged, broken and moss-covered skylights and roof panels on
the roofs where the workers generally and plaintiff particularly, worked. A reasonable
owner of the buildings in the first defendant’s position, in my view, applying the Langley

owner of the buildings in the first defendant’s position, in my view, applying the Langley
Fox test, would have foreseen the risk of danger inherent in stepping on such skylights.

34

[127] Would a reasonable owner in the place of PT have taken steps to guard against
the danger? In my view, the answer must be in the affirmative. It was insufficient to
simply pass off the responsibility of diverting the danger of working on the roofs, to the
contractor. The contractor’s role, as seen above, was to ensure that the protocol for
working at heights was met and that it performed the work as contracted: toolbox talks,
demonstrations of the use of harnesses and safety lines, provision of PPE, securing
safety lines to the building , ensuring that workers wore the PPE , supervising the work
and acting in accordance with the Regulations.

[128] In respect of the second question, the reasonable owner of the premises would
have taken steps to guard against the danger. Aside from employing a contractor to do
the dangerous work, it would have disclosed the dangers of potentially slippery and
moss-covered fibreglass skylights which were old and damaged. Accepting, in view of
the earlier finding, that the plaintiff was on the roof without a harness, the undisputed
fact is that he fell through the roof when he stepped on a moss-covered skylight. There
is no contrary evidence that the skylight was not obscured by moss and/or was not dirty.

[129] The moss-covered, clearly old and possibly broken and damaged skylight posed
a risk to anyone who walked on the roof and stepped on the skylight , whether an
employee of FA or not , and whether he wore PPE or not. PT’s role and responsibilit y
related to the skylights is evident in the evidence by Mr Webster: he did not go up onto
the roofs, did not point out the fibreglass skylights to Mr Pietersen and his/PT’s actions
were limited to standing in the warehouse and looking up at it. At the risk of repeating
what was stated when summarising his testimony, Mr Webster confirmed that he saw
from inside the warehouse(s) that there was moss on the skylights. This confirms not

from inside the warehouse(s) that there was moss on the skylights. This confirms not
only the plaintiff’s testimony, but also his case as pleaded in the amended Particulars of
Claim.

[130] To the extent that PT wished to convey that the skylights were marked and
noticeable to all who worked on the roof, my view is that it failed to establish such
averment or fact in the trial. Notwithstanding dispute d versions as to which building’s
roof the plaintiff fell from , the plaintiff was consistent in his testimony that he could not
distinguish between roof sheets/tiles and the skylight . In my view, it then befell PT to

35

prove on a balance of probabilities that indeed t he skylights on the roof the plaintiff fell
from, were clearly marked and distinguishable, thus presenting a warning to all who
worked and walked on that roof. PT failed to do so.

[131] The significance of this cannot be underplayed for the following reas ons: firstly,
in terms of the 2003 Regulations, the first defendant was required to have a health and
safety specification in accordance with Regulation 4(1) (a) read with Regulation 1, which
entailed a documented specification of all health and safety requirements related to the
cleaning and painting of the roofs in order to ensure the health and safety of all persons.
In my view, the reference to “persons”45 includes the workers such as the plaintiff .
Furthermore, “all health and safety requirements” would entail a reference to all hazards,
including those related to the skylights. The Regulations are considered against the
backdrop of the duty of care and compliance with Regulation 4 was compulsory for the
client, PT.

[132] Thus, having regard to Langley Fox and Regulations 4 read with Regulation 5,
PT had a legal (common law) and also statutory duty to the plaintiff in respect of ensuring
health and safety on its premises. Furthermore, Dr Du Toit’s view was that there was a
duty on PT as the client to identify anything that posed a risk and certainly, on my
understanding, there was a risk of harm associated with the skylights and roof panels.

[133] Langley Fox recognises that the duty of an owner of a premises (such as PT)
may not be the same as the duty of the contractor46. This was clearly the case here. Mr
Webster and/or PT were aware of the foreman and workers on the roo fs and aware of
the inherent danger which the damaged, old and moss -covered skylights posed. The
fact that the defendants concluded a mandatary agreement, does no absolve it of its
common law duty and added statutory duty toward persons on its premises, such as the

common law duty and added statutory duty toward persons on its premises, such as the
plaintiff. It was admitted by Mr Webster that the contract was outdated and defective for
want of non-compliance with the health and safety legislation at the time and this view
is confirmed by Dr du Toit. Clearly, the mandatary agreement did not disclose the safety
issues related to the roof and skylights, nor di d the AIA report , which was ultimately

45 Regulation 1
46 Langley Fox, p13 C

36

irrelevant in this matter as it concerned asbestos, which is not what this dispute turns
on.

[134] Having regard to the above discussion, and in answer to the first two questions
in Langley Fox, firstly, a reasonable client/owner of the premises would have foreseen
the risk of danger in consequence of the work on the roofs which it employed the
contractor to perform; and secondly, a reasonable client would have taken steps (as set
out above) to guard against it. As the two questions are answered in the affirmative, I
am satisfied that the client, PT, owed the plaintiff a legal duty and a secondary statutory
duty of care.

[135] In Chartaprops 16 (Pty) Ltd and Another v Silberman47 the SCA recognised
the category of cases where the reasonable person in the employer/client’s position is
expected to ensure that reasonable precautions are taken to avoid harm from befalling
the plaintiff. As discussed in Chartaprops48, which considered the liab ility and duty of
care of a shopping mall owner vis a vis the cleaning contractor, in the circumstances
which ensued (water spillage) it was reasonable to expect Chartaprops to take
precautions to keep the floors safe and it would be liable if those precautions were not
taken by the contractor. It was found that Chartaprops owed a legal duty to shoppers
and on the basis set out in the judgment it was found to be liable.

[136] In this matter, the duty of care owed by each of the defendants toward the plaintiff
is different. The existence of the first defendant’s duty to prevent harm depends on a
consideration of: the nature of the danger, which was that someone could slip and walk
on a moss -covered, old, damaged and broken fibreglass skylight on the roof ; the
danger could arise when someone working on the roof walks on/upon the skylight which
in all probability would have been vulnerable due to age, breakages, wear and tear; the
client was in a position to afford to pay for a roofing or construction expert to attend to

client was in a position to afford to pay for a roofing or construction expert to attend to
an assessment of the roof , roof tiles and skylights, but failed to do so; and, the client
had the means available to av ert the danger by providing a report on the conditions of
the roof, by pointing out the skylights, by itself inspecting the roof and by clearly marking

47 [2008} ZASCA 115 para [14]-[15]
48 Par [18]

37

the dangerous areas on the roof. The first defendant failed to acquit itself of its duty to
the plaintiff in these circumstances.

[137] I agree with the plaintiff’s counsel that the liability of the first defendant comes
down to an issue of foreseeability. Furthermore, the defendants were clearly pre -
occupied with working with asbestos, yet as far as the first defendant went, no
consideration was given to the unsafe conditions on the roof , as described above.
Having regard to Langley Fox , Chartaprops and Cenprop Real Esta te v
Hotlzhausen49, this is a case where, having regard to the roofing and skylight conditions
and the dangers it posed, the client was personally at fault. The duty of care related to
the latter conditions did not rest with the contractor.

[138] In my view, the failure to alert the plaintiff and other workers to the risks on the
roofs including slippery tiles and dangerous skylights , in circumstances where,
according the Cenprop50, the client/principal was clearly wrong, leads me to conclude
that the first defendant was negligent in relation to the plaintiff’s harm or injury.
Accordingly, I also agree with the plaintiff’s submission that the nature of the danger
was proceeding on a roof where skylights looked virtually identical to the roof sheets.
The application of tape to identify the skylight was not visible to the plaintif f on the top
of the roof so does not assist the first defendant.

[139] The plaintiff led evidence on the roof conditions, and not merely non-compliance
with the Regulations. If anything, the non -compliance with the Regulations certainly
supports the view that PT had a general disregard for the safety issues related to the
state of the roof. The reasonable person in the position of Mr Webster/ Prima Toys would
have foreseen the dangers posed by walking and working on the unsafe roofs, but it did
highlight this in its agreement with the contractor.

highlight this in its agreement with the contractor.

[140] In failing to act positively as set out above, PT’s conduct amounted to an omission
which is wrongful51. In determining whether PT was negligent, regard is had to the test

49 2023 (3) SA 54 (SCA) par [26]
50 Supra
51 Principles of Delict, p84

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for negligence as set out in Kruger v Coetzee 52: liability of the defendant arises i f a
diligens paterfamilias in the position of PT would foresee the reasonable possibility of
his conduct injuring another and causing him patrimonial loss; and would take
reasonable steps to guard against such occurrence and the defendant failed to take
such steps.

[141] In my view, the above questions must be answered in the affirmative. As the
owner of the building, and having regard to the Regulations referred to, PT ought to
have known that there were broken, damaged and old fibreglass skylights covered in
moss, and would have foreseen the reasonable possibility that its failure to point these
out to workers such as the plaintiff and people on the roof , created the risk of harm or
injury when someone walked upon the skylights . A reasonab le owner in PT’s place
would have alerted the plaintiff thereto and PT did not do so. It simply left the roof in its
entirety to the contractor, which was not a roofing expert nor construction expert, but an
asbestos cleaning business. In light of the disc ussion and findings above, the harm to
the plaintiff (and others) was foreseeable and PT, in not taking the various
precautionary measures to ward off the harm to the plaintiff, acted negligently in relation
to the plaintiff.

[142] The enquiry does not end there because causation must be considered . PT
pleads that it is the plaintiff’s conduct in removing the PPE or failing to wear it which was
the proximate cause of his fall which broke the causal nexus between any wrongful and
negligent conduct ascribed to it and the plaintiff’s fall 53. Furthermore, such con duct
constituted a novus actus inter veniens and/or a voluntary assumption of risk by the
plaintiff, who at all material times knew of and fully appreciated the danger of falling from
an elevated position on the roof in the absence or wearing fall protection equipment. In
so doing, he voluntarily assumed the risk of falling.

so doing, he voluntarily assumed the risk of falling.

[143] Is there a causal connection between PT’s negligent conduct in failing to
alert/highlight/draw attention to the risks associated with the old, moss -covered,
damaged and broken sk ylights, and the plaintiff’s injuries? In Minister of Police v

52 1966(2) SA 430 E-G
53 Par 7.1A.3, A15, Further amended Plea

39

Skosana54 the SCA identified factual causation as relating to “the question whether the
negligent act or omission in question caused or materially contributed to… the harm
giving rise to the claim”55 If it did, then the second question is whether the negligent act
or omission is linked to the harm directly or sufficiently close enough for legal liability to
follow or whether the harm is too remote.56

[144] Insofar as factual causation is conc erned, the “but for” test applies. In this
respect, I have to enquire whether the harm to the plaintiff would nonetheless have
ensued even if the omission ( PT’s failures regarding the condition of the roof and
skylights) had not occurred. This presupposes applying a hypothetical scenario as to
what probably would have happened but for the wrongful conduct of PT. Here, I am
required to super-impose PT’s unlawful conduct/omission for (its) lawful conduct and
ask whether, in such a case, the plaintiff’s fall would have occurred or not.

[145] Applying this exercise : if PT had alerted the plaintiff and/or pointed out the
conditions on the roof , including the slippery, old, broken and damaged skylights and
included these references in PT1 and in a health and safety plan for working at heights,
and clearly marked out the skylights, would the plaintiff’s loss have ensued or not? The
answer must be No. The plaintiff would have been alerted to the clearly identified
skylights covered in moss, which w ould have been distinguished from the roof tiles. In
such a hypothetical scenario, and had he been keeping a proper lookout as to where
he was walking, the plaintiff would not have stepped on a skylight, and had he not
stepped upon it, his step or impact thereon would not have caused it to give in/break
and he would not have fallen through the roof.
[146] The second enquiry is whether the wrongful act/omission is sufficiently closely or
directly linked to the loss for legal liabil ity to arise or whether the loss is too remote. 57

From the facts of this matter, the conduct of PT amounted largely to omissions and had
it acted positively (and pro-actively, as opposed to supinely relying on an AIA report and

54 1977(1) SA 31 (A) 34-35
55 34-35
56 Principles of Delict, Third Ediiton, JC van der Walt andJR Midgley, p197; International Shipping Co
(Pty) Ltd v Bentley 1990(1) SA 680 (A) 700
57 International Shipping Company (Pty) Ltd v Bentley [1990] 1 All SA 498(A) 700E-701A

40

an asbestos cleaning contrac tor), the plaintiff would not have walked on to the skylight
and fallen through.

[147] There would, in my view, have been no situation where he would step onto a
dangerous, unreliable and possibly fragile skylight, which gave way under the plaintiff’s
weight. He explained that his leg had vanished, indicating that likely, the skylight was
not only moss -covered, but probably old and damaged. In the event that PT had
employed an expert in roofing or construction or even an e xpert in skylights, the risks
would have been identified , assessed and been known . It did not do so. In the
circumstances, I am satisfied that the omissions are closely linked to the plaintiff’s loss
for legal liability to arise.


Contributory negligence of the plaintiff

[148] There remains the issue of the plaintiff’s conduct in entering upon the roof without
fall arrest gear. I do not repeat my findings regarding the issue of the gear which on the
probabilities, I found were not made available to him a nd so too the absent safety line.
It is, in my view, a useless exercise to ask “what would have happened had the plaintiff
not been on the roof”?

[149] The authorities referred to above and the academic work referenced in a
footnote, make it clear that causation must be approached logically and with reference
to the peculiar facts and circumstances of a case. The fact is that the plaintiff was on
the roof without PPE gear and walked upon a skylight, the conditions of which should
have been made aware to him , and had he not been on the roof in the first instance ,
there would have been no claim.

[150] In my view, the issue is not that the plaintiff voluntarily assumed the risk when he
was on the roof without a safety harness, nor that the failure to wear fall arrest equipment
constituted a novus actus interveniens. The issue is, and the conclusion reached, is that
even if he wore a harness attached to a safety line, he would still have (hypothetically

even if he wore a harness attached to a safety line, he would still have (hypothetically
speaking) walked upon an obscured, dirty and probably damaged or broken skylight,

41

which would have given in under the impact of his weight and he would still have gone
through the skylight and the roof.

[151] The safety harness, had it been worn and attached to a safety line as required,
would have arrested his fall and stopped the plaintiff from plunging to the ground below
and landing on the cement floor, which resulted in injury . However, it must be
emphasised that even wearing a harness, the plaintiff would have plunged through the
skylight, though (logically-speaking) certainly not as far down to the cement ground as
was the case. How far he would have plunged and whether he still would have sustained
minor injuries is unknown and calls for speculation.

[152] It must be remembered, even in the circumstance where I have found on the
probabilities that no fall arrest equipment was made available to the plaintiff on the
morning of the incident and no safety line was secured, the plaintiff certainly knew that
he was not allowed to work at an elevated position without fall arrest equipment. Yet,
notwithstanding the absent safety gear, knowing the dangers of working at heights due
to his experience in similar jobs, and having bee n privy to toolbox talks, the plaintiff
forged ahead and entered the roof without protective gear.

[153] There is no evidence to indicate that the plaintiff failed to keep a proper lookout
on the roof and there is no basis to infer such conduct from the evidence. The plaintiff’s
conduct, in entering the roof area when he had no safety gear available to him, was
negligent and this negligence was causally connected to the loss which he had suffered
and certainly contributed to it58.

[154] Ultimately, there is no evidence to contradict the plaintiff’s version as to the state
of the roof including the skylights. In comparing the respective degrees of negligence of
the first defendant and plaintiff, the extent of each of these parties’ negligence in causing

the first defendant and plaintiff, the extent of each of these parties’ negligence in causing
the damages to the plaintiff has been discussed above. The defendants’ omissions as
described above bear a slightly greater portion of the liability in the circumstances and
an appropriate apportionment follows.

58 South British Insurance Co Ltd v Smit 1962(3) SA 826(A); Amler’s Pleadings, Tenth Edition, LTC
Harms and MR Townsend p278

42

Costs

[155] Lastly, on the issue of costs, the matter in my view, was by no means straight
forward and has certainly been challenging, especially having regard to the issue related
to the Regulations, the differentiation between the defendants’ liability and the
consideration of the plaintiff’s own conduct.

[156] Having regard to Rule 67A and the observations and findings of Wilson J in
Mashavha v Enaex (Pty) Ltd 59, the matter certainly presented some complex issues,
and I am of the view that an award of costs, jointly and severally, with counsel’s fees on
scale C is warranted.


Order


[157] Accordingly, the following order is granted:

a. The defendants are liable to the plaintiff, jointly and severally, the one
paying the other to be absolved, for 60% of his proven or agreed damages.

b. The defendants are liable to pay the plaintiff’s party and party costs, jointly
and severally, the one paying the other to be absolved (counsel’s fees on
scale C).

c. The trial on quantum is postponed sine die, pending the completion of
the pre-trial and/or case management process on quantum.


_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT

59 2025(1) SA 466 (GJ) par [25]-[27]

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Appearances
For Plaintiff: Adv P Eia
Instructed by: A Batchelor Attorneys
Cape Town

For Defendant: Adv T R Tyler
Instructed by: Dicks van der Merwe Attorneys
Cape Town