Newstadt v H Amm (Pty) Ltd (2) (A153/2005) [2006] ZAFSHC 60 (14 December 2006)

IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Case No.: A153/2005

In the case between:

ALLAN HENRY NEWSTADT Appellant

and

H AMM (PTY) LIMITED Respondent

______________________________________________________

CORAM: CILLIé, J, et EBRAHIM, J et

VAN DER MERWE, J

JUDGMENT: EBRAHIM, J

HEARD ON: 21 AUGUST 2006

DELIVERED ON: 14 DECEMBER 2006

[1] The appellant sued the respondent in the court a quo for damages for injuries he sustained after falling off a ladder whilst conducting certain repairs to the roof of a bean sprout installation on a farm owned by the respondent. The appellant’s claim in the court a quo was one based in contract.

[2] The court a quo dismissed the claim on the basis that no contract had been proved to have been in existence between the parties and that no contractual duty for the provision of ladders by the respondent to the appellant had come into existence.

[3] In argument before us, on behalf of the appellant it was contended that the court a quo had erred in this respect. It was also submitted that even though the appellant had not pertinently in its summons and particulars of claim pleaded its case in delict it was manifest from the manner in which the particulars of claim are set out that the appellant was in fact relying on a breach of a legal duty, which it alleged rendered the respondent liable for damages for economic loss suffered by the appellant.

[4] I have decided to approach the determination of this appeal purely on the basis of whether a non-contractual duty of care was owed by the respondent to the appellant. I do so strongly emphasizing the fact that I am in full agreement with the approach adopted by the court a quo to the adjudication of this matter in that forum and with the ultimate conclusions of fact reached by the learned judge.

[5] For the appellant to succeed in this appeal the primary legal enquiry to be conducted is into the elements of wrongfulness and negligence as necessary pre-requisites for aquilian liability. The question to be asked therefore is whether the appellant has proved that the respondent breached a legal duty owed by it to the appellant to provide a safe ladder for use by the appellant. Only once this question has been answered in the affirmative can there be any enquiry into the element of negligence. Negligence in the air does not attract aquilian liability.

The position in our law was described succinctly by Harms JA in TELEMATRIX (PTY) LTD t/a MATRIX VEHICLE TRACKING v ADVERTISING STANDARDS AUTHORITY SA 2006 (1) SA 461 (SCA) at 468, paragraph 12, as follows:

“The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that 'skade rus waar dit val'. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. But the fact that an act is negligent does not make it wrongful although foreseeability of damage may be a factor in establishing whether or not a particular act was wrongful. To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of negligence into our law, thereby distorting it.”

[6] I turn therefore to an analysis of the evidence relating to the provision of the ladder in question to the appellant in the context of these two requirements. In synopsis the appellant’s evidence was that he asked his assistant Isreal Miya to find him a ladder. He was given a free standing fruitpickers ladder by one whom he thought was an employee of the respondents who then erected the ladder (a tripod) on the concrete surface. The appellant examined the ladder and described it thus:

“It looked reasonable”;

“It looked functional”.

He climbed up the ladder, taking tools with him and got to the top where he began to climb onto the work surface and began working. Thereafter his assistant climbed up with tools, both commenced doing their electrical work until the appellant realised that he needed to obtain a metre box. He started descending the ladder facing the rungs and as he placed his foot on the first rung, the ladder split in half and he fell to the concrete surface, landing on his head.

[7] I am of the view that on this evidence the appellant has failed abysmally to prove the element of wrongfulness. The onus is on the appellant to prove on a balance of probability:

(a) That the ladder was one which it was patently and obviously unsafe for him to use and on his own evidence he has not shown this. In fact, the opposite is true that he climbed the ladder because he believed it was safe for him to do so. Moreover, his assistant also climbed the ladder because it was manifestly safe to do so, and

(b) That it was an employee, alternatively someone connected to the respondent who provided him with a ladder.

There is a lack of cogent evidence as to how the appellant came to be placed in possession of the ladder in question. His own evidence in this regard is not clear and his assistant was unable to positively identify the person from whom he obtained the ladder. His assistant was also unable to testify with conviction that that person was in the employ of the respondent. I quote from the evidence of Mr. Miya:

“The person who brought you the ladder that you and Mr Newstadt used on that particular day, do you know whether he was in the employment of Mr Amm? If I refer to Mr Amm, I am also referring to his company? --- I have no certainty concerning that.

Was the person who brought you the ladder the same person as the one that you referred to as the foreman? --- Not at all. 5

Do you know the name of the foreman or the person that you are referring to as the foreman? --- Since this has happened a long time ago, I will not commit myself or tell lies concerning his name.

And the person who brought you the ladder, do you know his name? --- I started before that, at the stage when I accompanied some of them to their residences. Their houses 10

were arranged in a row, it was the first and the second and the stout man who is the foreman occupied the second house. If I can remember well, I am under the impression that both the man who stayed in the first house and the one who stayed in the second house, namely the foreman, had the same surname, namely Maile. 15

So are you then saying that the surname of the foreman is Maile?

--- I am saying that if in case I remember well.

As far as your memory serves your? --- As far as my memory serves me. 20

Are you also saying that the person who brought your the ladder, his surname is also Maile? --- No.

Are you just saying there is another person on the farm, staying in one of the houses there, whose name is also Maile? --- That makes me remember the foreman’s surname. 25

All right. When you had testified you said that they had a foreman, if I noted down your evidence correctly, but according to my notes they had a foreman that appeared to be in charge of them at the site, is that correct? --- Yes.

So you did not know for certain whether he was the foreman? --- 5

I will be able to say it for certain, because everyone that I met concerning anything that I needed, referred me to the person.

Especially if you would ask for a ladder? --- Especially concerning the ladders.

You would have to approach this person who you deemed to be 10

the foreman for permission to get a ladder? --- Exactly.

As you could see, he was the only person authorise to furnish you with a ladder? --- I would say so, because everybody that I approached for something, he would then say I have no authority to give you anything since you are not a worker amongst us here. 15

Yes, and this person, the foreman, would normally then instruct one of the other workers to go and fetch a ladder? --- Yes, since there is a lot of work he would say I will soon send somebody to bring what you need.

What else did give you the impression that he was the foreman, 20

Apart from the fact that he was the only person who would give you permission for a ladder? Was he in charge of any of the activities there that you could see? --- There is nothing I can say it makes him a foreman.

You could not see whether he was n charge of for instance 25

casting the concrete slabs or of building operations? --- I cannot put it that way, but in Sesotho the one who leads us, he is our controller.”

“The person that gave you permission on that particular day for that ladder in question to be used, was the older person by the surname of Maile, whom you regarded to be the foreman on the 10

farm? --- He was the gentleman who said that he would send somebody with the ladder.

Yeas, but I want to know his identity, was this the Mr Maile that we have now been discussing for some length of time? --- He is the gentleman. 15

And the person who brought you the ladder did so on the instructions of Mr Maile, the foreman? --- I will put it that way, because he was the person who got there with the ladder.

Yes, and he was so instructed by the foreman? --- I will put it that say because if he arrives with the ladder, it leaves the 20

Impression with me that he has been instructed.

Yes, but did you not ask the foreman on that particular day to supply you with a ladder? --- I had spoken to him.

And asked him for a ladder? --- And asked him for a ladder.

And he duly complied by instructing somebody else to bring the 25

ladder? --- Thank you, sir.”

“I heard you say before that it was not Mr Maile but somebody else, am I mistaken or are you mistaken, sir? --- It is problematic, because the one who brought the ladder even spoke to me, I would say it is Maile. I conversed with him as I was busy arranging the tools. 15

Are you positively sure or not really? --- I will say that I am sure concerning that.”

Maile, called by the respondent, consistently denied any involvement in the furnishing of the ladder or indeed in the incident at all. Moreover, he denied being employed by the respondent in the capacity of a foreman at any stage.

[8] In the result there is no basis upon which to infer the existence of a legal duty such as that contended for by the appellant and accordingly the appeal fails. It is dismissed with costs.

_____________

S. EBRAHIM, J

/em