Newstadt v H Amm (Pty) Ltd (1) (A153/2005) [2006] ZAFSHC 59 (14 December 2006)

Download original filesPDF formatIN THE HIGH COURT OF SOUTH AFRICA(ORANGE FREE STATE PROVINCIAL DIVISION)Case No.: A153/2005In the matter between:ALLAN HENRY NEWSTADTAppellantandH AMM (PTY) LTDRespondent___________CORAM:CILLIé J,etEBRAHIM, JetVAN DER MERWE, J___________JUDGMENT BY:CILLIé, J___________HEARD ON:21 AUGUST 2006___________DELIVERED ON:14 DECEMBER 2006_____________[1] I have read the judgment of Ebrahim J and agree that the appeal must fail. However, I prefer to dismiss the appeal for somewhat different reasons. As the outcome remains the same I find it unnecessary to deal with these reasons in the same detail as would otherwise have been the case. I also find it unnecessary to set out the background of the dispute as it is sufficiently detailed in the judgment of Ebrahim J.[3] The courta quoconsidered the appellant’s claim on the basis that it was contractual. The particulars of claim however are in this regard all but an example of clarity.[4] In paragraph 3 of the particulars of claim the conclusion of a verbal agreement between the parties is alleged. The terms thereof are also set out in the particulars of claim although not as detailed as would be

expected. However it is alleged in paragraph 4 of the particulars of claim that the respondent undertook to supply all the necessary ladders for the performance of applicant’s work.[5] Contrary to this it is alleged in paragraph 7 and further of the particulars of claim that an employee of the respondent in the course and scope of his employment, acted negligently, thereby causing the appellants alleged injuries and subsequent damages. The grounds of the alleged negligence is then set out in detail. The nature of the damages allegedly sustained is typical delictual.[6] In paragraph 3 of his plea the respondent denies the existence of any agreement as alleged. In paragraph 5.2 thereof the alleged negligence is denied. This is understandable as the respondent is after all required to plead on all the allegations in the particulars of claim including the alleged negligence referred to above. The respondent however did not content with this. An elaborate alternative plea of contributory negligence is raised fully setting out the grounds of the appellant’s alleged contributory negligence. The prayer concluding the plea prays for the dismissal of appellant’s claim alternatively diminishing it as provided for in the Apportionment of Damages Act Nr. 34 of 1956.[7] All of this lead Mr. Kemp, for the appellant, to submit that the appellant’s claim was in essence one of delict and

not of contract. He emphasises that contributory negligence cannot be raised as a defence to a contractual claim. That justifies the assumption, so the argument ran, that the respondent throughout understood this to be a claim in delict. Mr. Kemp submitted that the courta quo’s dismissal of the claim on the basis that the appellant failed to prove the alleged contract and its terms can therefore not be sustained. He submitted that the claim should have been considered on the basis that it was a claim in delict and he asked this court to do so.[8] Some debate between counsel ensued as to the somewhat vexed question whether a delictual claim is sustainable within a contractual relationship. The way I see the matter makes it unnecessary to deal with this at all. It is sufficient to say that even if the claim is considered to be delictual as Mr. Kemp suggests the appeal cannot succeed.[9]Vicarious liability: If the claim is to be considered on the basis of delict, as I intend to do, it was incumbent on the appellant to prove that the person who supplied the ladder to the appellant acted within the course and scope of his employment with the respondent. Failure thereof would put an end to the matter. The courta quofound that the appellant succeeded in proving this, but rightly pointed out that, this finding was rendered irrelevant by the finding that the appellant failed to prove

the alleged contract and it’s terms. The courta quonevertheless detailed the reasons for it’s view that the appellant’s vicarious liability was properly proven. In her judgment Ebrahim J came to the conclusion that the appellant failed to prove that Maile was in the respondent’s employment. If this is correct the question of negligence does not need consideration at all. I differ with the view of Ebrahim J. A consideration of the evidence as a whole convinced me that the courta quowas correct in its finding. Although all of what the courta quosaid in this regard was in fact obiter the reasons set out in its judgment is convincing. I can do no better than to quote it:“[24] In the same breath, the question of whether Isaac Maile, who according to the plaintiff’s version, provided the defective stepladder, was an employee of the defendant is rendered irrelevant by my finding aforesaid.It is my view though, that Isaac Maile was indeed an employee of the defendant and was acting within the course and scope of his employment as such of the reasons set out hereunder.[25] The evidence of Thys Spamer is clear that he was at the relevant time so employed. Thys was the manager of the defendant at the time and he surely must have known who was employed by the defendant. I have found Thys to be a credible witness and insofar as there is a conflict between his evidence and that

of Amm and Maile, on the other hand, I would prefer Thys’s version.[26] Isaac Maile’s resignation on 31 May 1996 as per exhibits “J” and “K” appears to have been a ploy to circumvent the provisions of the labour laws. According to Thys it was done on the advice of a labour consultant. Isaac Maile himself does not seem to know precisely what was happening. All he knew is that he was told that there was no money or work and that had to go but that he could return when work or money was available. He was made to sign exhibits “J” and “K”, which he did not comprehend, as he is an illiterate who only knows how to sign his name. He says that he had no option in the matter. Interestingly, under cross examination he initially denied that he had voluntarily resigned but then quickly somersaulted and said that he could not recall fully what happened. What he was certain about was that he went away and did some independent work at Marseilles. In 1999 he returned to Alpha Estate and was virtually reinstated on the farm. I say this because in spite of his insistence that he was now an independent contractor, the evidence shows that his position was the same as that of other permanent employees on the farm:(a) He worked the normal hours, was given similar benefits, was paid on a monthly basis, was reinstated in a house on the farm and, according to Thys, he was subject to

Thys authority like all other employees. The only difference was that Maile earned more than the others, to wit R800,00 or R1 000,00 per month. According to Thys, this was because he was a versatile worker and led the group that worked with him. No wonder that Miya regarded him a foreman.(b) Significantly, Maile was given his unemployment insurance fund card (UIF) only when he finally left Alpha Estates after 1999.[27] Isaac Maile did not impress as a witness. He worked on the very plant that the plaintiff and Maile were working for at least two weeks according to his own evidence. Yet he claimed that he had no contact with them and never saw them using stepladders. This is so improbable that it is safe to say that he was lying. He also claimed that he only heard of the plaintiff’s fall from Mahlako Maile after the latter had attended this trial during 2003, when he himself had been working on the same plant as the plaintiff. It is clear that he is falsely distancing himself from the plaintiff’s fall. I accept the plaintiff’s version that he was the one that provided the stepladders or instructed his juniors to supply them. The fact that the defendant’s register of employees for the relevant period had inexplicably disappeared without trace puts a question mark on the credibility of its case in this regard.”All of this makes it necessary to deal with the question of

negligence and the respondent’s alleged duty to care towards the appellant.[10]Duty to take care. In paragraph 4 of the particulars of claim it is alleged that it was a material term of the agreement that the respondent would supply all the necessary ladders required for the performance of the appellant’s work. On that basis it is then alleged in paragraph 5 of the particulars of claim that the respondent owed the appellant a duty of care to supply ladders that were fit for the intended use.[11] The appellant himself testified that“I ask.... if they had ladders I could use and the reply was the reply was more than, we have got more ladders here than will ever be necessary.”Volume 2, page 70, lines 4 to 7.This proves nothing more that that the appellant would be allowed to make use of the respondent’s ladders if such ladders suits his needs. It does not amount to prove that it was a term of any agreement that the respondent would supply ladders fit for the appellant’s use. Even Mr. Kemp for the appellant did not submit that this constituted a binding contract. He preferred to term it“a valuable backdrop to put concrete content to the delictual obligations in question”.This being so it cannot be said that a legal duty to take care was brought about by a term of a contract between the parties. In this regard the judgment of Coetzee J inCATHKIN PARK HOTEL v J. D.

MAKESCH ARCHITECTS1993 (3) SA 98(W) to which we were referred is distinguishable.[12] The question however remains whether the circumstances in general under which the appellant made use of the ladders constituted a legal duty on the appellant not to act negligently. InTRUSTEES FOR THE TIME BEING OF TWO OCEANS AQUARIUM TRUST v KANTEY & TEMPLER (PTY) LTD2006 (3) SA 138(SCA) at 144 Brand JA said:“[10] ... The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms....[11] It is sometimes said that the criterion for the determination of wrongfulness is ‘a general criterion of reasonableness’’, i e whether it would be reasonable to impose a legal duty on the defendant (see e gGovernment of the Republic of South Africa v Basdeo and Another1996 (1) SA 355(A) at 367E-G;Gouda Boerdery BK (supra)in para [12]. Where that terminology is employed, however, it is to be borne in mind that what is meant by reasonableness in the context of wrongfulness is something different from the reasonableness of the conduct itself which is an element of negligence. It concerns the reasonableness of imposing liability on the defendant (see e g Anton Fagan‘Rethinking wrongfulness in the law of delict’(2005) 122 SALJ90at 109). Likewise, the ‘legal duty’ referred to in this context must not be

confused with the ‘duty of care’ in English law which straddles both elements of wrongfulness and negligence.”[13] Given the circumstances of this case I remain unconvinced that it“would be reasonable to impose a legal duty”on the respondent as the appellant contends for. I really do not think that criteria of public or legal policy require that a citizen gratuitously consenting to the request of a person experienced in the field of the use of ladders to make use of it’s ladders should be saddled with a duty to take care that a safe ladder is selected by the user there-of.[14]Negligence: Even if I am wrong in the conclusion that no legal duty as alleged existed the appellant in my view failed to prove any negligence. On the appellant’s version he used two long ladders of the respondent to do his work. Apparently this was the position for some 8 working days before the incident occurred (Volume 2, pagina 75, line 15).[15] The day the incident occurred the appellant“...asked Israel (his own employee) to have a look if he could find somebody to ask. He found somebody... and he asked him a ladder, for one of the ladders, ... a little while later, ... the man we asked ... arrived with a ladder.”Volume 2, pagina 78, lines 1 – 7.According to the appellant he“...opened the ladder and had a glance at the ladder, it looked reasonable,... and I climbed up

the ladder,... I got to the top, Israel my assistant climbed up the ladder with more tools.”Volume 2, pagina 80, lines 5 – 9.“... A glance, no, an educated look.”“... After using ladders for 18 years ... it looked okay to me ... the ladder looked functional.”Volume 2, pagina 111, lines 8 – 19.The appellant and his assistant apparently then proceeded with their work on the roof. Sometime later the appellant for some reason or other wanted to get down again.“I went to the edge... I hung onto onto one of the overhangs and twisted myself sideways so that I could climb down the ladder in a conventional way.... I put my foot on the first scotch... on the first actual run.... and the ladder slip in half on me.”Volume 2, pagina 81, lines 6 – 15.[16] The test for negligence remains the one postulated inKRUGER v COETZEE1966 (2) SA 428Aat 430.“(a) a diligens paterfamilias in the position of the defendant -(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and(ii) would take reasonable steps to guard against such occurrence; and(b) the defendant failed to take such steps.”[17] It must be kept in mind that the appellant was employed as an expert in his field. His work required him to make use of ladders apparently on an almost daily basis. There is no evidence that the

respondent’s worker was asked to check the ladder beforehand. The appellant himself checked it and regarded it to be acceptable. If he reached that conclusion it cannot be said that the respondent’s worker was unreasonable in not noticing any defects in the ladder. The required foreseeability of harm to the appellant can therefore not be attributed to the respondent’s worker. My conclusion therefore is that the appellant also failed to prove the required negligence on the part of the respondent.[18] For these reasons the appeal must be dismissed with costs._____C. B. CILLIé, JOn behalf of the appellant: Adv. K.J. Kemp SCInstructed by:Webbers AttorneysBLOEMFONTEINOn behalf of the respondent: Adv. W.R.E. Duminy SCInstructed by:Honey AttorneysBLOEMFONTEIN/em

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PDF formatIN THE HIGH COURT OF SOUTH AFRICA(ORANGE FREE STATE PROVINCIAL DIVISION)Case No.: A153/2005In the matter between:ALLAN HENRY NEWSTADTAppellantandH AMM (PTY) LTDRespondent___________CORAM:CILLIé J,etEBRAHIM, JetVAN DER MERWE, J___________JUDGMENT BY:CILLIé, J___________HEARD ON:21 AUGUST 2006___________DELIVERED ON:14 DECEMBER 2006_____________[1] I have read the judgment of Ebrahim J and agree that the appeal must fail. However, I prefer to dismiss the appeal for somewhat different reasons. As the outcome remains the same I find it unnecessary to deal with these reasons in the same detail as would otherwise have been the case. I also find it unnecessary to set out the background of the dispute as it is sufficiently detailed in the judgment of Ebrahim J.[3] The courta quoconsidered the appellant’s claim on the basis that it was contractual. The particulars of claim however are in this regard all but an example of clarity.[4] In paragraph 3 of the particulars of claim the conclusion of a verbal agreement between the parties is alleged. The terms thereof are also set out in the particulars of claim although not as detailed as would be expected. However it is

alleged in paragraph 4 of the particulars of claim that the respondent undertook to supply all the necessary ladders for the performance of applicant’s work.[5] Contrary to this it is alleged in paragraph 7 and further of the particulars of claim that an employee of the respondent in the course and scope of his employment, acted negligently, thereby causing the appellants alleged injuries and subsequent damages. The grounds of the alleged negligence is then set out in detail. The nature of the damages allegedly sustained is typical delictual.[6] In paragraph 3 of his plea the respondent denies the existence of any agreement as alleged. In paragraph 5.2 thereof the alleged negligence is denied. This is understandable as the respondent is after all required to plead on all the allegations in the particulars of claim including the alleged negligence referred to above. The respondent however did not content with this. An elaborate alternative plea of contributory negligence is raised fully setting out the grounds of the appellant’s alleged contributory negligence. The prayer concluding the plea prays for the dismissal of appellant’s claim alternatively diminishing it as provided for in the Apportionment of Damages Act Nr. 34 of 1956.[7] All of this lead Mr. Kemp, for the appellant, to submit that the appellant’s claim was in essence one of delict and not of contract. He

emphasises that contributory negligence cannot be raised as a defence to a contractual claim. That justifies the assumption, so the argument ran, that the respondent throughout understood this to be a claim in delict. Mr. Kemp submitted that the courta quo’s dismissal of the claim on the basis that the appellant failed to prove the alleged contract and its terms can therefore not be sustained. He submitted that the claim should have been considered on the basis that it was a claim in delict and he asked this court to do so.[8] Some debate between counsel ensued as to the somewhat vexed question whether a delictual claim is sustainable within a contractual relationship. The way I see the matter makes it unnecessary to deal with this at all. It is sufficient to say that even if the claim is considered to be delictual as Mr. Kemp suggests the appeal cannot succeed.[9]Vicarious liability: If the claim is to be considered on the basis of delict, as I intend to do, it was incumbent on the appellant to prove that the person who supplied the ladder to the appellant acted within the course and scope of his employment with the respondent. Failure thereof would put an end to the matter. The courta quofound that the appellant succeeded in proving this, but rightly pointed out that, this finding was rendered irrelevant by the finding that the appellant failed to prove the alleged contract

and it’s terms. The courta quonevertheless detailed the reasons for it’s view that the appellant’s vicarious liability was properly proven. In her judgment Ebrahim J came to the conclusion that the appellant failed to prove that Maile was in the respondent’s employment. If this is correct the question of negligence does not need consideration at all. I differ with the view of Ebrahim J. A consideration of the evidence as a whole convinced me that the courta quowas correct in its finding. Although all of what the courta quosaid in this regard was in fact obiter the reasons set out in its judgment is convincing. I can do no better than to quote it:“[24] In the same breath, the question of whether Isaac Maile, who according to the plaintiff’s version, provided the defective stepladder, was an employee of the defendant is rendered irrelevant by my finding aforesaid.It is my view though, that Isaac Maile was indeed an employee of the defendant and was acting within the course and scope of his employment as such of the reasons set out hereunder.[25] The evidence of Thys Spamer is clear that he was at the relevant time so employed. Thys was the manager of the defendant at the time and he surely must have known who was employed by the defendant. I have found Thys to be a credible witness and insofar as there is a conflict between his evidence and that of Amm and Maile, on

the other hand, I would prefer Thys’s version.[26] Isaac Maile’s resignation on 31 May 1996 as per exhibits “J” and “K” appears to have been a ploy to circumvent the provisions of the labour laws. According to Thys it was done on the advice of a labour consultant. Isaac Maile himself does not seem to know precisely what was happening. All he knew is that he was told that there was no money or work and that had to go but that he could return when work or money was available. He was made to sign exhibits “J” and “K”, which he did not comprehend, as he is an illiterate who only knows how to sign his name. He says that he had no option in the matter. Interestingly, under cross examination he initially denied that he had voluntarily resigned but then quickly somersaulted and said that he could not recall fully what happened. What he was certain about was that he went away and did some independent work at Marseilles. In 1999 he returned to Alpha Estate and was virtually reinstated on the farm. I say this because in spite of his insistence that he was now an independent contractor, the evidence shows that his position was the same as that of other permanent employees on the farm:(a) He worked the normal hours, was given similar benefits, was paid on a monthly basis, was reinstated in a house on the farm and, according to Thys, he was subject to Thys authority like

all other employees. The only difference was that Maile earned more than the others, to wit R800,00 or R1 000,00 per month. According to Thys, this was because he was a versatile worker and led the group that worked with him. No wonder that Miya regarded him a foreman.(b) Significantly, Maile was given his unemployment insurance fund card (UIF) only when he finally left Alpha Estates after 1999.[27] Isaac Maile did not impress as a witness. He worked on the very plant that the plaintiff and Maile were working for at least two weeks according to his own evidence. Yet he claimed that he had no contact with them and never saw them using stepladders. This is so improbable that it is safe to say that he was lying. He also claimed that he only heard of the plaintiff’s fall from Mahlako Maile after the latter had attended this trial during 2003, when he himself had been working on the same plant as the plaintiff. It is clear that he is falsely distancing himself from the plaintiff’s fall. I accept the plaintiff’s version that he was the one that provided the stepladders or instructed his juniors to supply them. The fact that the defendant’s register of employees for the relevant period had inexplicably disappeared without trace puts a question mark on the credibility of its case in this regard.”All of this makes it necessary to deal with the question of negligence and

the respondent’s alleged duty to care towards the appellant.[10]Duty to take care. In paragraph 4 of the particulars of claim it is alleged that it was a material term of the agreement that the respondent would supply all the necessary ladders required for the performance of the appellant’s work. On that basis it is then alleged in paragraph 5 of the particulars of claim that the respondent owed the appellant a duty of care to supply ladders that were fit for the intended use.[11] The appellant himself testified that“I ask.... if they had ladders I could use and the reply was the reply was more than, we have got more ladders here than will ever be necessary.”Volume 2, page 70, lines 4 to 7.This proves nothing more that that the appellant would be allowed to make use of the respondent’s ladders if such ladders suits his needs. It does not amount to prove that it was a term of any agreement that the respondent would supply ladders fit for the appellant’s use. Even Mr. Kemp for the appellant did not submit that this constituted a binding contract. He preferred to term it“a valuable backdrop to put concrete content to the delictual obligations in question”.This being so it cannot be said that a legal duty to take care was brought about by a term of a contract between the parties. In this regard the judgment of Coetzee J inCATHKIN PARK HOTEL v J. D. MAKESCH

ARCHITECTS1993 (3) SA 98(W) to which we were referred is distinguishable.[12] The question however remains whether the circumstances in general under which the appellant made use of the ladders constituted a legal duty on the appellant not to act negligently. InTRUSTEES FOR THE TIME BEING OF TWO OCEANS AQUARIUM TRUST v KANTEY & TEMPLER (PTY) LTD2006 (3) SA 138(SCA) at 144 Brand JA said:“[10] ... The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms....[11] It is sometimes said that the criterion for the determination of wrongfulness is ‘a general criterion of reasonableness’’, i e whether it would be reasonable to impose a legal duty on the defendant (see e gGovernment of the Republic of South Africa v Basdeo and Another1996 (1) SA 355(A) at 367E-G;Gouda Boerdery BK (supra)in para [12]. Where that terminology is employed, however, it is to be borne in mind that what is meant by reasonableness in the context of wrongfulness is something different from the reasonableness of the conduct itself which is an element of negligence. It concerns the reasonableness of imposing liability on the defendant (see e g Anton Fagan‘Rethinking wrongfulness in the law of delict’(2005) 122 SALJ90at 109). Likewise, the ‘legal duty’ referred to in this context must not be confused

with the ‘duty of care’ in English law which straddles both elements of wrongfulness and negligence.”[13] Given the circumstances of this case I remain unconvinced that it“would be reasonable to impose a legal duty”on the respondent as the appellant contends for. I really do not think that criteria of public or legal policy require that a citizen gratuitously consenting to the request of a person experienced in the field of the use of ladders to make use of it’s ladders should be saddled with a duty to take care that a safe ladder is selected by the user there-of.[14]Negligence: Even if I am wrong in the conclusion that no legal duty as alleged existed the appellant in my view failed to prove any negligence. On the appellant’s version he used two long ladders of the respondent to do his work. Apparently this was the position for some 8 working days before the incident occurred (Volume 2, pagina 75, line 15).[15] The day the incident occurred the appellant“...asked Israel (his own employee) to have a look if he could find somebody to ask. He found somebody... and he asked him a ladder, for one of the ladders, ... a little while later, ... the man we asked ... arrived with a ladder.”Volume 2, pagina 78, lines 1 – 7.According to the appellant he“...opened the ladder and had a glance at the ladder, it looked reasonable,... and I climbed up the ladder,... I got

to the top, Israel my assistant climbed up the ladder with more tools.”Volume 2, pagina 80, lines 5 – 9.“... A glance, no, an educated look.”“... After using ladders for 18 years ... it looked okay to me ... the ladder looked functional.”Volume 2, pagina 111, lines 8 – 19.The appellant and his assistant apparently then proceeded with their work on the roof. Sometime later the appellant for some reason or other wanted to get down again.“I went to the edge... I hung onto onto one of the overhangs and twisted myself sideways so that I could climb down the ladder in a conventional way.... I put my foot on the first scotch... on the first actual run.... and the ladder slip in half on me.”Volume 2, pagina 81, lines 6 – 15.[16] The test for negligence remains the one postulated inKRUGER v COETZEE1966 (2) SA 428Aat 430.“(a) a diligens paterfamilias in the position of the defendant -(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and(ii) would take reasonable steps to guard against such occurrence; and(b) the defendant failed to take such steps.”[17] It must be kept in mind that the appellant was employed as an expert in his field. His work required him to make use of ladders apparently on an almost daily basis. There is no evidence that the respondent’s worker was asked to

check the ladder beforehand. The appellant himself checked it and regarded it to be acceptable. If he reached that conclusion it cannot be said that the respondent’s worker was unreasonable in not noticing any defects in the ladder. The required foreseeability of harm to the appellant can therefore not be attributed to the respondent’s worker. My conclusion therefore is that the appellant also failed to prove the required negligence on the part of the respondent.[18] For these reasons the appeal must be dismissed with costs._____C. B. CILLIé, JOn behalf of the appellant: Adv. K.J. Kemp SCInstructed by:Webbers AttorneysBLOEMFONTEINOn behalf of the respondent: Adv. W.R.E. Duminy SCInstructed by:Honey AttorneysBLOEMFONTEIN/em

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IN

THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Case No.: A153/2005

In the matter between:

ALLAN HENRY NEWSTADTAppellant

ALLAN

HENRY NEWSTADT

and

H AMM (PTY) LTDRespondent

H AMM (PTY) LTD

_____________

CORAM:CILLIé J,etEBRAHIM, Jet

CORAM:

et

VAN DER MERWE, J

JUDGMENT BY:CILLIé, J

JUDGMENT BY:

HEARD ON:21 AUGUST 2006

HEARD ON:

DELIVERED ON:14 DECEMBER 2006

DELIVERED ON:

[1] I have read the judgment of Ebrahim J and agree that the appeal must fail. However, I prefer to dismiss the appeal for somewhat different reasons. As the outcome remains the same I find it unnecessary to deal with these reasons in the same detail as would otherwise have been the case. I also find it unnecessary to set out the background of the dispute as it is sufficiently detailed in the judgment of Ebrahim J.

[3] The courta quoconsidered the appellant’s claim on the basis that it was contractual. The particulars of claim however are in this regard all but an example of clarity.

a quo

[4] In paragraph 3 of the particulars of claim the conclusion of a verbal agreement between the parties is alleged. The terms thereof are also set out in the particulars of claim although not as detailed as would be expected. However it is alleged in paragraph 4 of the particulars of claim that the respondent undertook to supply all the necessary ladders for the performance of applicant’s work.

[5] Contrary to this it is alleged in paragraph 7 and further of the particulars of claim that an employee of the respondent in the course and scope of his employment, acted negligently, thereby causing the appellants alleged injuries and subsequent damages. The grounds of the alleged negligence is then set out in detail. The nature of the damages allegedly sustained is typical delictual.

[6] In paragraph 3 of his plea the respondent denies the existence of any agreement as alleged. In paragraph 5.2 thereof the alleged negligence is denied. This is understandable as the respondent is after all required to plead on all the allegations in the particulars of claim including the alleged negligence referred to above. The respondent however did not content with this. An elaborate alternative plea of contributory negligence is raised fully setting out the grounds of the appellant’s alleged contributory negligence. The prayer concluding the plea prays for the dismissal of appellant’s claim alternatively diminishing it as provided for in the Apportionment of Damages Act Nr. 34 of 1956.

[7] All of this lead Mr. Kemp, for the appellant, to submit that the appellant’s claim was in essence one of delict and not of contract. He emphasises that contributory negligence cannot be raised as a defence to a contractual claim. That justifies the assumption, so the argument ran, that the respondent throughout understood this to be a claim in delict. Mr. Kemp submitted that the courta quo’s dismissal of the claim on the basis that the appellant failed to prove the alleged contract and its terms can therefore not be sustained. He submitted that the claim should have been considered on the basis that it was a claim in delict and he asked this court to do so.

[8] Some debate between counsel ensued as to the somewhat vexed question whether a delictual claim is sustainable within a contractual relationship. The way I see the matter makes it unnecessary to deal with this at all. It is sufficient to say that even if the claim is considered to be delictual as Mr. Kemp suggests the appeal cannot succeed.

[9]Vicarious liability: If the claim is to be considered on the basis of delict, as I intend to do, it was incumbent on the appellant to prove that the person who supplied the ladder to the appellant acted within the course and scope of his employment with the respondent. Failure thereof would put an end to the matter. The courta quofound that the appellant succeeded in proving this, but rightly pointed out that, this finding was rendered irrelevant by the finding that the appellant failed to prove the alleged contract and it’s terms. The courta quonevertheless detailed the reasons for it’s view that the appellant’s vicarious liability was properly proven. In her judgment Ebrahim J came to the conclusion that the appellant failed to prove that Maile was in the respondent’s employment. If this is correct the question of negligence does not need consideration at all. I differ with the view of Ebrahim J. A consideration of the evidence as a whole convinced me that the courta quowas correct in its finding. Although all of what the courta quosaid in this regard was in fact obiter the reasons set out in its judgment is convincing. I can do no better than to quote it:

Vicarious liability

“[24] In the same breath, the question of whether Isaac Maile, who according to the plaintiff’s version, provided the defective stepladder, was an employee of the defendant is rendered irrelevant by my finding aforesaid.

[24] In the same breath, the question of whether Isaac Maile, who according to the plaintiff’s version, provided the defective stepladder, was an employee of the defendant is rendered irrelevant by my finding aforesaid.

It is my view though, that Isaac Maile was indeed an employee of the defendant and was acting within the course and scope of his employment as such of the reasons set out hereunder.

[25] The evidence of Thys Spamer is clear that he was at the relevant time so employed. Thys was the manager of the defendant at the time and he surely must have known who was employed by the defendant. I have found Thys to be a credible witness and insofar as there is a conflict between his evidence and that of Amm and Maile, on the other hand, I would prefer Thys’s version.

[26] Isaac Maile’s resignation on 31 May 1996 as per exhibits “J” and “K” appears to have been a ploy to circumvent the provisions of the labour laws. According to Thys it was done on the advice of a labour consultant. Isaac Maile himself does not seem to know precisely what was happening. All he knew is that he was told that there was no money or work and that had to go but that he could return when work or money was available. He was made to sign exhibits “J” and “K”, which he did not comprehend, as he is an illiterate who only knows how to sign his name. He says that he had no option in the matter. Interestingly, under cross examination he initially denied that he had voluntarily resigned but then quickly somersaulted and said that he could not recall fully what happened. What he was certain about was that he went away and did some independent work at Marseilles. In 1999 he returned to Alpha Estate and was virtually reinstated on the farm. I say this because in spite of his insistence that he was now an independent contractor, the evidence shows that his position was the same as that of other permanent employees on the farm:

(a) He worked the normal hours, was given similar benefits, was paid on a monthly basis, was reinstated in a house on the farm and, according to Thys, he was subject to Thys authority like all other employees. The only difference was that Maile earned more than the others, to wit R800,00 or R1 000,00 per month. According to Thys, this was because he was a versatile worker and led the group that worked with him. No wonder that Miya regarded him a foreman.

(b) Significantly, Maile was given his unemployment insurance fund card (UIF) only when he finally left Alpha Estates after 1999.

[27] Isaac Maile did not impress as a witness. He worked on the very plant that the plaintiff and Maile were working for at least two weeks according to his own evidence. Yet he claimed that he had no contact with them and never saw them using stepladders. This is so improbable that it is safe to say that he was lying. He also claimed that he only heard of the plaintiff’s fall from Mahlako Maile after the latter had attended this trial during 2003, when he himself had been working on the same plant as the plaintiff. It is clear that he is falsely distancing himself from the plaintiff’s fall. I accept the plaintiff’s version that he was the one that provided the stepladders or instructed his juniors to supply them. The fact that the defendant’s register of employees for the relevant period had inexplicably disappeared without trace puts a question mark on the credibility of its case in this regard.”

All of this makes it necessary to deal with the question of negligence and the respondent’s alleged duty to care towards the appellant.

[10]Duty to take care. In paragraph 4 of the particulars of claim it is alleged that it was a material term of the agreement that the respondent would supply all the necessary ladders required for the performance of the appellant’s work. On that basis it is then alleged in paragraph 5 of the particulars of claim that the respondent owed the appellant a duty of care to supply ladders that were fit for the intended use.

Duty to take care

[11] The appellant himself testified that

“I ask.... if they had ladders I could use and the reply was the reply was more than, we have got more ladders here than will ever be necessary.”

I ask.... if they had ladders I could use and the reply was the reply was more than, we have got more ladders here than will ever be necessary.”

Volume 2, page 70, lines 4 to 7.

This proves nothing more that that the appellant would be allowed to make use of the respondent’s ladders if such ladders suits his needs. It does not amount to prove that it was a term of any agreement that the respondent would supply ladders fit for the appellant’s use. Even Mr. Kemp for the appellant did not submit that this constituted a binding contract. He preferred to term it“a valuable backdrop to put concrete content to the delictual obligations in question”.This being so it cannot be said that a legal duty to take care was brought about by a term of a contract between the parties. In this regard the judgment of Coetzee J inCATHKIN PARK HOTEL v J. D. MAKESCH ARCHITECTS1993 (3) SA 98(W) to which we were referred is distinguishable.

This proves nothing more that that the appellant would be allowed to make use of the respondent’s ladders if such ladders suits his needs. It does not amount to prove that it was a term of any agreement that the respondent would supply ladders fit for the appellant’s use. Even Mr. Kemp for the appellant did not submit that this constituted a binding contract. He preferred to term it

This being so it cannot be said that a legal duty to take care was brought about by a term of a contract between the parties. In this regard the judgment of Coetzee J inCATHKIN PARK HOTEL v J. D. MAKESCH ARCHITECTS1993 (3) SA 98(W) to which we were referred is distinguishable.

CATHKIN PARK HOTEL v J. D. MAKESCH ARCHITECTS

1993 (3) SA 98

[12] The question however remains whether the circumstances in general under which the appellant made use of the ladders constituted a legal duty on the appellant not to act negligently. InTRUSTEES FOR THE TIME BEING OF TWO OCEANS AQUARIUM TRUST v KANTEY & TEMPLER (PTY) LTD2006 (3) SA 138(SCA) at 144 Brand JA said:

TRUSTEES FOR THE TIME BEING OF TWO OCEANS AQUARIUM TRUST v KANTEY & TEMPLER (PTY) LTD

2006 (3) SA 138

“[10] ... The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms....

[10] ... The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms....

[11] It is sometimes said that the criterion for the determination of wrongfulness is ‘a general criterion of reasonableness’’, i e whether it would be reasonable to impose a legal duty on the defendant (see e gGovernment of the Republic of South Africa v Basdeo and Another1996 (1) SA 355(A) at 367E-G;Gouda Boerdery BK (supra)in para [12]. Where that terminology is employed, however, it is to be borne in mind that what is meant by reasonableness in the context of wrongfulness is something different from the reasonableness of the conduct itself which is an element of negligence. It concerns the reasonableness of imposing liability on the defendant (see e g Anton Fagan‘Rethinking wrongfulness in the law of delict’(2005) 122 SALJ90at 109). Likewise, the ‘legal duty’ referred to in this context must not be confused with the ‘duty of care’ in English law which straddles both elements of wrongfulness and negligence.”

Government of the Republic of South Africa v Basdeo and Another

1996 (1) SA 355

Gouda Boerdery BK (supra)

‘Rethinking wrongfulness in the law of delict’

(2005) 122 SALJ90

J

[13] Given the circumstances of this case I remain unconvinced that it“would be reasonable to impose a legal duty”on the respondent as the appellant contends for. I really do not think that criteria of public or legal policy require that a citizen gratuitously consenting to the request of a person experienced in the field of the use of ladders to make use of it’s ladders should be saddled with a duty to take care that a safe ladder is selected by the user there-of.

[13] Given the circumstances of this case I remain unconvinced that it

on the respondent as the appellant contends for. I really do not think that criteria of public or legal policy require that a citizen gratuitously consenting to the request of a person experienced in the field of the use of ladders to make use of it’s ladders should be saddled with a duty to take care that a safe ladder is selected by the user there-of.

[14]Negligence: Even if I am wrong in the conclusion that no legal duty as alleged existed the appellant in my view failed to prove any negligence. On the appellant’s version he used two long ladders of the respondent to do his work. Apparently this was the position for some 8 working days before the incident occurred (Volume 2, pagina 75, line 15).

Negligence

[15] The day the incident occurred the appellant

“...asked Israel (his own employee) to have a look if he could find somebody to ask. He found somebody... and he asked him a ladder, for one of the ladders, ... a little while later, ... the man we asked ... arrived with a ladder.”

...asked Israel (his own employee) to have a look if he could find somebody to ask. He found somebody... and he asked him a ladder, for one of the ladders, ... a little while later, ... the man we asked ... arrived with a ladder.”

Volume 2, pagina 78, lines 1 – 7.

According to the appellant he

“...opened the ladder and had a glance at the ladder, it looked reasonable,... and I climbed up the ladder,... I got to the top, Israel my assistant climbed up the ladder with more tools.”

...opened the ladder and had a glance at the ladder, it looked reasonable,... and I climbed up the ladder,... I got to the top, Israel my assistant climbed up the ladder with more tools.”

Volume 2, pagina 80, lines 5 – 9.

“... A glance, no, an educated look.”

... A glance, no, an educated look.”

“... After using ladders for 18 years ... it looked okay to me ... the ladder looked functional.”

... After using ladders for 18 years ... it looked okay to me ... the ladder looked functional.”

Volume 2, pagina 111, lines 8 – 19.

The appellant and his assistant apparently then proceeded with their work on the roof. Sometime later the appellant for some reason or other wanted to get down again.

“I went to the edge... I hung onto onto one of the overhangs and twisted myself sideways so that I could climb down the ladder in a conventional way.... I put my foot on the first scotch... on the first actual run.... and the ladder slip in half on me.”

I went to the edge... I hung onto onto one of the overhangs and twisted myself sideways so that I could climb down the ladder in a conventional way.... I put my foot on the first scotch... on the first actual run.... and the ladder slip in half on me.”

Volume 2, pagina 81, lines 6 – 15.

[16] The test for negligence remains the one postulated inKRUGER v COETZEE1966 (2) SA 428Aat 430.

KRUGER v COETZEE

1966 (2) SA 428A

“(a) a diligens paterfamilias in the position of the defendant -

(a) a diligens paterfamilias in the position of the defendant -

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.”

[17] It must be kept in mind that the appellant was employed as an expert in his field. His work required him to make use of ladders apparently on an almost daily basis. There is no evidence that the respondent’s worker was asked to check the ladder beforehand. The appellant himself checked it and regarded it to be acceptable. If he reached that conclusion it cannot be said that the respondent’s worker was unreasonable in not noticing any defects in the ladder. The required foreseeability of harm to the appellant can therefore not be attributed to the respondent’s worker. My conclusion therefore is that the appellant also failed to prove the required negligence on the part of the respondent.

[18] For these reasons the appeal must be dismissed with costs.

_____

C. B. CILLIé, J

On behalf of the appellant: Adv. K.J. Kemp SC

Instructed by:

Webbers Attorneys

BLOEMFONTEIN

On behalf of the respondent: Adv. W.R.E. Duminy SC

Honey Attorneys

/em