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[2010] ZAWCHC 60
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Betko Products CC v Grasso (Pty) Ltd (618/2008) [2010] ZAWCHC 60 (26 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
Case
No.: 618/2008
In
the matter between:
BETKO
PRODUCTS CC
Plaintiff/Respondent
and
GRASSO
(PROPRIETARY) LIMITED
Defendant/Excipient
KOEN
AJ.
JUDGMENT
DELIVERED THIS 26
th
DAY OF MARCH 2010
1.The
defendant in this matter has noted an exception to the plaintiff's
particulars of claim on the grounds that it discloses no
cause of
action against the defendant in either contract or delict,
alternatively on the ground that it is vague and embarrassing.
For
the sake of convenience I propose, for the purposes of this judgment,
to refer to the excipient as the defendant and to the
respondent as
the plaintiff.
2.
At the commencement of the argument it was accepted that the action
wasone in delict
2.At the commencement of the
argument it was accepted that the action was one in delict and the
exception based on the ground that
no cause of action in contract had
been pleaded was not pursued. This turn of events has a bearing on
the vague and embarrassing
ground of exception, but I shall advert to
this later.
3.In
order to decide whether or not the particulars of claim make out a
cause of action it is necessary, firstly, to distil from
them the
facts upon which the claim is based. I do not intend to quote from
the particulars at length, only to summarise the essential
facts upon
which I understand the claim to be based.
4.The
particulars of claim allege that in or about 2002 a cold storage room
had been
"designed,
installed and maintained"
by
Grenco (SA) Pty Limited, a company which is not a party to the
action. The defendant had manufactured a component of the cold
storage room in question, namely the evaporator unit. The defendant,
it was alleged, publically held itself out as an expert manufacturer
and seller of cold storage systems which include evaporators.
5.During
2007 the plaintiff's apples, whic
h
were stored in the cold storage room, were damaged by ammonia gas.
The ammonia gas had escaped as a result of weld defects in
the
evaporator manifold which had arisen during the manufacture of the
evaporator unit. In consequence the plaintiff claimed that
it had
suffered a loss in the amount of R 1 710 622 being the dimunition in
the value of its apples as a result of the damage caused
to them by
exposure to ammonia gas.
6.In
the particulars of claim the plaintiff alleged, further, that the
defendant's employees were negligent in the manufacture of
the
evaporator unit in one or a number of respects. These were that they
had failed to ensure that there were no weld defects in
the
evaporator manifold; that they had failed to ensure that the welding
equipment would not produce weld defects; that they had
failed to
ensure that the materials which had been used in the welding and
manufacturing process would not produce weld defects;
and/or, in that
they had failed to test the evaporator unit to make sure that weld
defects did not exist.
7.It
was alleged, further, that the conduct of the employees of the
defendant, acting in the course and scope of their employment,
was
wrongful and that the defendant could and should have foreseen that
as a result of defects in the manufacture of the evaporator
unit
damage could be caused to the property of end-users of the evaporator
unit and its components.
8.Those
facts, as I read the particulars of claim, form the basis of the
claim brought against the defendant. Because the plaintiff's
claim is
in delict it is necessary to examine, briefly, what the requirements
for delictual liability in our law are.
9.That
delictual liability flows from a wrongful and negligent act or
omission on the part of the defendant which causes loss to
the
plaintiff requires no authority. Each one of the ingredients which
appear from this formula must be present in every claim
based in
delict. In this case the first question to be answered is whether the
plaintiff has alleged in its particulars of claim
sufficient facts to
constitute a cause of action for damages in delict, with the focus
being on the element of wrongfulness.
10.
I n general, our law requires that every fact necessary to sustain a
cause of action must be pleaded.
1
If facts necessary to underpin a cause of action are not pleaded the
pleading discloses no cause of action. But this is a general
proposition only, because our law has evolved in such a way that in
most delictual cases it is not required that facts which underpin
the
requirement of wrongfulness be pleaded. Wrongfulness is assumed - and
facts which underpin it need not therefore be pleaded
- in cases
where the loss arises from physical damage to the person or property
of the plaintiff.
2
11.
But where a plaintiff seeks to recover by way of an action in delict
loss of a purely economic kind, or loss resulting from
an omission,
wrongfulness is not implied or assumed. This is because a negligent
act or omission causing pure economic loss, or
a failure to act which
causes loss, is not regarded in our law as being necessarily
wrongful. In such cases facts to underpin an
allegation of
wrongfulness must be pleaded and proved.
3
12.
The parties were agreed that this was not a case where loss of the
"purely" economic kind was being claimed. "Pure"
economic loss is loss caused
"without
the interposition of a physical lesion or injury to a person or
corporeal property".
The
loss claimed followed upon actual damage to apples owned by the
plaintiff, caused - it was alleged - by their exposure to ammonia
gas. This is what the pleading states and the pleaded facts must be
accepted, this being an exception.
4
13.
Counsel for the defendant contended, however, that this was a case
where the loss resulted from an omission. Referring to the
language
used to describe the negligent conduct alleged
it was argued that the plaintiff's case was founded upon a failure to
act in a particular manner, namely to weld properly. The
failure
properly to weld constituted an omission, so the argument went, and
therefore facts to support a conclusion that the defendant's
conduct
was wrongful should have been pleaded for a complete cause of action
to have been disclosed.
14.
In the context of the law of delict an omission is a
"failure
to take any positive steps whatsoeverto prevent damage to
otherpeople"
.
Omissions
have a particular significance in delict because of the time-honoured
reluctance in our law to impose liability for damages
upon persons
who have done nothing. As Marais JA put it in
Cape
Town Municipality v Bakkerud
2000
(3) SA 1049
(SCA),
"Society
is hesitant to impose liability in law for, as it is sometimes put,
minding one's own business"
5
15.
At the outset it should be said that it does not escape attention
that the defendant in this case was not, according to the
pleading
under scrutiny, minding its own business. On the contrary, it was in
fact going about its business, namely the manufacture
of evaporator
units. In a sense this observation addresses the submission as it
seems obvious that a positive act - the manufacture
of the evaporator
unit - is the conduct under consideration in this action. But this
may be too glib and as it was earnestly contended
that the negligent
conduct alleged by the plaintiff amounted to an omission a more
detailed consideration of the argument is desirable.
The question
which is to be answered is whether the defendant's negligent failure
to take certain steps during the manufacturing
process amounts to an
omission, at least in the way the word is understood in the context
of the wrongfulness element of an action
in delict in our law.
16.
Although it is true that many negligent positive acts can be
described in language which connotes a failure to act it does not
follow that such acts are treated in our law of delict as
constituting omissions.
6
An obvious example, as I see it, is the case of the negligent driving
of a motor vehicle in failing to keep a proper lookout, or
in failing
to apply the vehicle's brakes when this becomes necessary. Although
the failure to keep a lookout, or to apply brakes,
when driving a
motor vehicle are - in a loose sense - omissions they are not
omissions in the context of a consideration of the
wrongfulness
element of a delictual claim in our law. What is in issue is the
positive act of driving and a failure to take certain
steps whilst
doing this. To come back to this case, as I see it, the conduct under
consideration is the positive act of manufacturing
an evaporator
unit.
17.The
manner in which conduct in a delictual action is described or, to put
it another way, the language used by the framer of
a pleading, are
not the determining factors when it comes to deciding whether or not
the conduct under consideration amounts to
an act or to an omission.
The failure to take certain steps in the carrying out of a positive
act - in this case the welding process
in the fabrication of a part
of the evaporator unit - does not make such conduct an omission in
the sense that this word is used
in the context of the consideration
of the element of wrongfulness in delict. Such conduct is, as I see
it, nothing more than a
negligently performed commission.
18.
I n my judgment therefore this is not one of those cases where the
conduct which is alleged to have caused the loss is comprised
of an
omission, in the sense meant when one considers the wrongfulness
component of delictual liability.
19.
Counsel for the defendant, however, sought to persuade me that it was
nonetheless the kind of case where the facts alleged did
not speak of
themselves to wrongfulness, and that I ought to uphold the exception
because no facts to underpin the wrongfulness
element had been
alleged.
20.
To counter this argument counsel for the plaintiff submitted that the
claim could and should be characterised as a manufacturer,
or
product, liability case.
7
Professor Boberg in his work,
The
Law of Delict Vol. 1,
described
product liability cases in the following way:
"The
plaintiff's action is Aquilian, and its ordinary requirements must be
satisfied. A wrongful act is constituted by the
production of a
defective article that causes physical or purely economic damage to
any person. The fault requirement is satisfied
by showing that the
plaintiff's damage was reasonably foreseeable, that a reasonable man
would have guarded against it, and that
the defendant failed to do
so."
8
In
concluding his note under the rubric of "Products Liability"
Professor Boberg stated that
"It
is submitted that products liability in our law has perhaps been
puffed up a little beyond its true importance. The reason
for
regarding it as a special form of Aquilian liability requiring its
own dogmatic framework is not readily apparent. Wrongfulness
is
hardly a problem. As we have seen ... , wrongfulness is not a
function of an act alone: it is a function of an act plus its
consequences. To harm others physically or financially by producing
or distributing a defective article is so socially undesirable
(or
objectively unreasonable, if you will) that the law should have no
difficulty in branding it wrongful."
9
21.
Although there was, at the time, little in the way of judicial
authority to support the opinion expressed by the learned author
it
seems well established now that he was correct. In
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd and Another
2002
(2) SA 447
(SCA) Brand JA said
"...aanspreeklikheid
wat uit die vervaardiging en verskaffing van n produk voortspruit wat
vanwee die een of ander tekortkoming
fisiese skade berokken, strek
via die ander kontraksparty na enige derde uit wat dit op die
voorgeskrewe wyse aanwend en as gevolg
daarvan skade ly
(vgl
Cooper
and Nephews v Visser
1920
AD 111
te
114;
Tsimatakopoulos
v Hemingway, Isaacs and Coetzee CC and Another
1993
(4) SA 428
(K) te 433A-E; 435H-I; Neethling, Potgieter en Visser
The
Law of Delict
3de
uitg te 321 en volgende).
Dat
so n vervaardiger volgens die regsoortuiging van die gemeenskap
verkeerd en dus onregmatig optree indien hy n produk kommersieel
beskikbaar stel wat in die loop van sy bestemde gebruik en as gevolg
van n gebrek vir n verbruiker daarvan skade veroorsaak, volg
eintlik
vanself (vgl
De
Jager
Vervaardigingsaanspreeklikheid
te 629 - 32).
10
22.
That the breach of a legal duty
"to
avoid reasonably foreseeable harm resulting from defectively
manufactured"
products
is wrongful was confirmed a year later in the decision in
Wagener
v Pharmacare Ltd; Cuttings v Pharmacare Ltd
2003
(4) SA 285
(SCA). Although that case was concerned with the
imposition of strict liability in product liability cases it seems
clear that
the Court accepted that the causation of loss flowing from
the negligent manufacture of a product is wrongful
23.
I must, therefore, conclude that our law assumes that the negligent
manufacture of a defective product which causes physical
damage and
loss to another is wrongful. It follows that it is not necessary to
plead facts in support of the conclusion that such
conduct is
wrongful. Theexception on the ground that the particulars of claim
are wanting because facts to underpin the element
of wrongfulness are
absent must therefore fail.
24.
Having characterised the claim as a so-called manufacturer or product
liability claim - which, it must be emphasised, is nothing
more than
an action in delict to which the normal principles of delictual
liability apply -the exception on the grounds of vague
and
embarrassing became of lesser moment. This is because many of the
grounds upon which it was contended that the pleading was
vague and
embarrassing had their origin in an apprehension that the claim was
based in contract. Although the particulars contain
allegations not
strictly necessary to support a claim in delict
they nonetheless expressly characterise the claim as being one in
delict. As indicated above, after counsel for the plaintiff indicated
that the claim was not one in contract, not much attention was
devoted in argument by counsel for the defendant on the exception
based upon the vague and embarrassing ground.
25.
Be that as it may it is nonetheless desirable, in my view, briefly to
deal with the exception on the grounds that the particulars
of claim
are vague and embarrassing. The attack on the pleading on this basis
was directed, firstly, at those allegations in the
particulars of
claim whichascribe the manufacture of the cold storage room and the
evaporator unit to the defendant, without the
pleading elaborating
upon the standard to which the defendant had contracted that it be
built. As I see it this objection misses
the point. Whilst it is so
that the breach of a contractual obligation may impose liability in
delict towards someone who is not
a party to the contract
11
this is not the plaintiff's case. The case which is made is a not a
case of a product not being up to a contractually determined
specification, but a case about a product which was defectively
manufactured, and which eventually caused loss to the plaintiff
when
its apples were damaged as a result of ammonia gas escaping because
of the defect. That delictual liability can flow in these
circumstances, provided that every element for such liability as our
law prescribes is present, has been authoritatively established
in
Ciba-Geigy.
26.
It was argued, further, by counsel for the defendant that the
particulars of claim were vague and embarrassing because the basis
upon which the cold storage facility was operated by the plaintiff
had not been disclosed. Again, as I see it, this objection is
off
target. Whether or not the cold storage room was operated by the
plaintiff is in my view irrelevant to the pleaded claim. As
I see it
the pleading makes it reasonably clear what the case of the plaintiff
is, namely an action in delict of the product liability
variety. The
allegation in question - that the cold storage facility was operated
by the plaintiff - is not anecessary ingredient
of the plaintiff's
cause of action and should cause no embarrassment to the defendant
12
.
27.
A third basis upon which it was contended by the defendant that the
particulars of claim were vague and embarrassing related
to the
allegations concerning negligent and wrongful conduct on the part of
employees of the defendant. In my view it is reasonably
clear that
these allegations are intended to do nothing more than inform the
defendant that the case against it is that its employees,
in the
course and scope of their employment, were negligent in failing to
manufacture the evaporator unit properly. I do not see
that the
allegation is vague or embarrassing, or that any prejudice to the
defendant can flow from the manner in which this portion
of the
particulars have been formulated.
28.
Counsel for the plaintiff sought a special costs order, in the event
that the exception was dismissed, it being contended that
the
defendants were pursuing a baseless objection to the claim, with the
intention of delaying the matter. I do not think that
such a step is
warranted. There was nothing about the conduct of the case to suggest
that the defendant was not
bona
fide,
or
that it was
"buying
time"
as
was suggested in argument. Moreover, as I have indicated above, the
pleaded case included allegations not directly relevant to
a claim in
delict and although the pleading may not have been vague and
embarrassing it can with some justification be said that
it was not a
model of clarity.
29.
Both parties submitted that any costs order should authorise the
recovery of the costs of two counsel. In view of the nature
of the
matter
I
agree.
30.
For the above reasons I do not think that there is merit in the
exception. In the circumstances I make the following order:
The
exception is dismissed with costs, such costs to include the costs of
two counsel.
S
J
KOEN AJ
1
See H Daniels, Beck's Theory and Principles of Pleading in Civil
Actions, 6th Ed at 49
2
S
ee
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander
2002 (2)
SA 447
(SCA) at 471 B - 471C; Lillicrap, Wassenaar and Partners v
Pilkington Brothers 1985 (1) 475 (AD) at 497 B - C; LTC Harms
Amler's
Precedents of Pleadings 6th Ed at 222
See Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander
2002
(2) SA 447
(SCA) at 471 B - 471C; Lillicrap, Wassenaar and Partners
v Pilkington Brothers 1985 (1) 475 (AD) at 497 B - C; LTC Harms
Amler's
Precedents of Pleadings 6th Ed at 222.
3
See
LTC Harms, Amler's Precedents of Pleadings, 6th Ed. at 222 where it
is stated that "If on the other hand wrongfulness
cannot be
inferred from the nature of the loss suffered, which will be the
case if the plaintiff claims for a loss resulting
from an omission
or for pure economic loss, the defendant's legal duty towards the
plaintiff must be defined and the breach alleged."
See LTC Harms, Amler's Precedents of Pleadings, 6th Ed. at 222 where
it is stated that "If on the other hand wrongfulness
cannot be
inferred from the nature of the loss suffered, which will be the
case if the plaintiff claims for a loss resulting
from an omission
or for pure economic loss, the defendant's legal duty towards the
plaintiff must be defined and the breach alleged.".
4
See
Natal Fresh Produce Growers Association and Others v Agroserve(Pty)
Ltd and Others
1990 (4) SA 749
(N) at 754J - 755B.
5
At 1054E
At 1054E.
6
See Van Der Walt and Midgley Principles of Delict 3rd Edition at
pages 65 to
66.
7
Nothing turns on the terminology used.
8
At
page 194.
9
At
page 196
10
At
470 E - H
11
See
P Q R Boberg,
"Liability
for Omissions - The case of the Defective Motor Car"
1972
SALJ at 214.
12
See
Joubert
v Impala Platinum Holdings Ltd
1998
(1) SA 463
(BHC) at 471 E - F where it was stated that:
"It
has long been established that the general principles of pleading
endorsed by the Courts is to move away from formality
towards
simplicity and that if it is reasonably clear what the defendant is
sued for, then, in the absence of prejudice, technical
objections
will not be upheld."