D & E Earthworks & Plant Hire CC v Lezmin 3030 CC (37427/2009) [2011] ZAGPPHC 92 (6 June 2011)

D & E Earthworks & Plant Hire CC v Lezmin 3030 CC (37427/2009) [2011] ZAGPPHC 92 (6 June 2011)

The court found that the defendant's driver was negligent in failing to ensure that the excavator was loaded in a manner that would allow safe passage under bridges and in failing to take reasonable steps to check the height before attempting to pass under the bridge. The plaintiff's operator loaded the excavator according to the instructions of the defendant's employees and could not have foreseen the risk of collision. The disclaimer notices relied on by the defendant were not incorporated into the contract and did not exempt the defendant from liability. The evidence presented by the defendant was found to be fabricated and unreliable. The court concluded that the defendant's...

Citation
[2011] ZAGPPHC 92
Parties
Plaintiff: D & E Earthworks & Plant Hire CC; Defendant: Lezmin 3030 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 June 2011
Case Number
37427/2009
Procedural Posture
Civil Trial / Liability Phase Separated From Damages Under Rule 33(4)
Outcome
Defendant found solely liable for the collision and all proven damages; costs awarded to plaintiff.
Judges
Southwood
Legal Topics
Negligence, Apportionment of Liability, Contributory Negligence, Exemption Clauses
Delict Civil Procedure Negligence Apportionment of Liability Contributory Negligence Exemption Clauses

Case Brief

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Parties

D & E Earthworks & Plant Hire CC

Plaintiff

Lezmin 3030 CC

Defendant

Procedural Posture

Civil Trial / Liability Phase Separated From Damages Under Rule 33(4)

Legal Issues

  1. 1 Whether the defendant's negligence was the sole cause of the collision between the excavator and the bridge.
  2. 2 Whether the plaintiff's operator was negligent in loading the excavator onto the low-bed trailer.
  3. 3 Whether the defendant is exempted from liability due to disclaimer notices.

Ratio Decidendi

The court found that the defendant's driver was negligent in failing to ensure that the excavator was loaded in a manner that would allow safe passage under bridges and in failing to take reasonable steps to check the height before attempting to pass under the bridge. The plaintiff's operator loaded the excavator according to the instructions of the defendant's employees and could not have foreseen the risk of collision. The disclaimer notices relied on by the defendant were not incorporated into the contract and did not exempt the defendant from liability. The evidence presented by the defendant was found to be fabricated and unreliable. The court concluded that the defendant's...

Court Disposition

Defendant found solely liable for the collision and all proven damages; costs awarded to plaintiff.

Orders

  • It is declared that the defendant's negligence was the sole cause of the collision between the plaintiff's excavator and the bridge on 12 May 2008 and that the defendant is liable for all of the damages which the plaintiff can prove were caused by that collision.
  • The defendant is ordered to pay the costs of this hearing including the costs of a senior counsel wherever a senior counsel was employed.