Newstadt v H Amm (Pty) Ltd (3) (2328/2002) [2006] ZAFSHC 61 (14 December 2006)
The court held that the appellant's claim was based on delict, although it arose in a contractual setting. The respondent was not contractually obliged to supply ladders, and merely gave permission for their use. There was no evidence that the respondent's employee, Mr. Maile, acted negligently in providing the...
Source-derived case information.
- Citation
- [2006] ZAFSHC 61
- Parties
- Appellant: Allan Henry Newstadt; Respondent: H. Amm (Pty) Ltd
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 2328/2002
- Procedural Posture
- Civil Appeal / Appeal From Trial Court
- Outcome
- Appeal dismissed; trial court's decision upheld.
- Judges
- Cillié, Ebrahim, Van der Merwe
- Legal Topics
- Negligence, Wrongfulness, Vicarious Liability, Defective Product, Contractual Context
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Henry Newstadt
Appellant
H. Amm (Pty) Ltd
Respondent
Procedural Posture
Civil Appeal / Appeal From Trial Court
Legal Issues
- 1 Whether the respondent was negligent in providing a dangerous ladder to the appellant.
- 2 Whether the respondent manufactured the ladder defectively.
- 3 Whether the respondent's conduct was wrongful in the context of the contractual relationship.
Ratio Decidendi
The court held that the appellant's claim was based on delict, although it arose in a contractual setting. The respondent was not contractually obliged to supply ladders, and merely gave permission for their use. There was no evidence that the respondent's employee, Mr. Maile, acted negligently in providing the ladder, as he was not informed of its intended use and the ladder appeared functional to an experienced user. The appellant failed to prove that the ladder was defectively manufactured by the respondent, and this issue was not raised in the pleadings. Accordingly, negligence attributable to the respondent was not established, and the appeal was dismissed.
Court Disposition
Appeal dismissed; trial court's decision upheld.
Orders
- The appeal is dismissed.
- No order as to costs was made.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION
Case No. 2328/2002
In the matter between:-
ALLAN HENRY NEWSTADT Appellant
and
H. AMM (PTY) LTD Respondent
_______________________________________________________
CORAM: CILLIé J et EBRAHIM J et VAN DER MERWE J
JUDGMENT BY: VAN DER MERWE J
HEARD ON: 21 AUGUST 2006
DELIVERED ON: 14 DECEMBER 2006
[1] I have read the judgments prepared in this matter by Cillié J and Ebrahim J. I agree that the appeal must fail and with the order proposed. However, I consider it necessary to briefly set out the reasons for my conclusion.
[2] In my view, the appellantâs claim is clearly based on delict, although it arose in a contractual setting. The trial court found however, that on the appellantâs own evidence, the respondent was not contractually obliged to supply the appellant with ladders required for the performance of the work in terms of the contract. I agree with the trial court, for the reasons stated by him. In my judgment the respondent gave permission to the appellant to use the respondentâs ladders, but did not give an undertaking animo contrahendi to provide ladders. I make reference to this as the questions of wrongfulness and negligence must be determined in this context.
[3] For purposes hereof I accept that the ladder in question was unsuitable or unsafe for the purpose for which it was required by the appellant. I also assume, without deciding, that if the respondent was negligent in making the ladder available as alleged, its conduct would be wrongful.
[4] The question then is whether negligence attributable to the respondent was proved. On appeal the appellant relied in this regard on two aspects, namely first, that the respondentâs employee Mr. Maile provided the appellant with a dangerous ladder and second, that the ladder in question was defective as a result of poor manufacturing thereof by the respondent.
[5] The trial court found that at the time Mr. Maile was employed by the respondent and acted in the course and within the scope of his employment as such. This finding was not challenged on appeal. According to the evidence the appellantâs assistant, Mr. Miya, requested Mr. Maile to provide a ladder. I accept that Mr. Maile made the ladder in question available, either in person or through another employee of the respondent. I am not satisfied that Mr. Maile acted negligently in providing the ladder in question. There is no evidence that Mr. Miya told Mr. Maile what the ladder was to be used for. To the appellant, a man with approximately 18 years experience of regular use of ladders, the ladder in question appeared to be functional and in reasonable condition. A reasonable man in the position of Mr. Maile could therefore not be faulted for having the same impression. Moreover, Mr. Maile could in the circumstances reasonably expect that the appellant would not make use of the ladder in conditions that are unsafe or if the ladder appeared to be dangerous.
[6] The question of the negligent manufacture of the ladder was not raised in the pleadings. I am also not sure that a firm finding can be made on the evidence that the ladder in question was actually manufactured by the respondent. It matters not however, as in my judgment it was not shown by the appellant that the ladder was manufactured defectively.
_______________________
C.H.G. VAN DER MERWE, J
/sp