Primegro Properties Limited v International Truss Systems (Pty) Ltd and Another (8803/03) [2005] ZAGPHC 66 (10 June 2005)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)CASE NO:8803/2003In the matter betweenPRIMEGRO PROPERTIES LIMITED PLAINTIFFandINTERNATIONAL TRUSS SYSTEMS (PTY) LTD FIRST DEFENDANTM S ROOFS SECOND DEFENDANTJ U D G M E N TVAN OOSTEN J[1] This is an exception taken by the first defendant to the plaintiff’s particulars of claim as lacking averments to sustain a cause of action.[2] The plaintiff sued the first and second defendants for damages in the sum of R1,7m arising out of the collapse of a section of the roof of the Brooklyn Mall Shopping Centre inPretoria. It is the plaintiff’s case that the roof collapsed as a result of the failure of a girder, which it is alleged was neither properly designed nor constructed to withstand the loads placed on it by the roof.[3] The shopping centre was constructed by Stocks & Stocks (Gauteng) (Pty) Ltd(“Stocks”)for the then owner of the property, Tembrook Properties (Pty) Ltd(“Tembrook”). The second defendant(“MS Roofs”)was selected by Stocks as sub-contractor for the design and erection of the roof. After completion of the roof, the first defendant issued a written guarantee in respect of the design and erection of the roof to Stocks(“the ITS-guarantee”)to which was annexed a further written guarantee by MS Roofs in respect of the design and manufacture of the roof(“the MS Roofs-guarantee”).[4] Some 4 years after completion of the building the plaintiff purchased the shopping centre from Tembrook. The plaintiff is still the owner of the property and in that capacity has sued the defendants for damages. MS Roofs is sued as the sub-contractor of Stocks, who as I have mentioned, was responsible for the design and erection of the roof. MS Roofs defends the action and its plea has already been filed.[5] The first defendant, whom I shall henceforth call the defendant, is sued on the basis of “having assumed” responsibility toward Stocks, in terms of the ITS- guarantee. The plaintiff’s main cause of action against the defendant is based on an alleged cession of “all contractual rights”arising out of the ITS-guarantee by Stocks to Tembrookin terms of the building contract, who in turn it is alleged, ceded its rights, including the rights under the ITS-guarantee to the Plaintiff pursuant to theagreement of salein respect of the shopping complex between Tembrook and the plaintiff. In the alternative to the plaintiff’s main claim two further claims are pleaded which I will revert to later in the judgment.THEFIRST EXEPTION: PLAINTIFF’S MAIN CLAIM[6] The first ground of exception relied upon by the defendant for the contention that the particulars of claim does not sustain a cause of action, concerns the plaintiff’s main claim, and is framed as follows:“Insofar as the plaintiff alleges either a contract of guarantee or an obligation arising out of the alleged guarantee, the plaintiff’s particulars of claim, reasonably construed, contain no allegations that the first defendant was a nominated or selected sub-contractor to Stocks. Clause 4.2 of the building contract, properly construed, cedes and transfers rights acquired from a nominated or selected sub-contractor only. Accordingly, there are insufficient allegations from which it may be inferred that Stocks ceded any rights in respect of obligations owed by the first defendant to it, including the “guarantee” in terms of the building contract.”[7] I have already touched on the nature of the plaintiff’s main claim. For a proper understanding of the claim and the exception taken to it, it is necessary to refer to the allegations in support of this claim in somewhat more detail. Paraphrased and summarised these allegations are the following: MS Roofs in terms of its sub-contract with Stocksinter aliahad the following obligations: to have the roof designed and erected by a professional engineer; to have the completed trusses checked for quality and to have them hoisted and erected in accordance with certain prescribed standards and procedures. MS Roofs in turn contracted with the defendant to provide it with the necessary engineering support to ensure compliance with its obligations under the sub-contact with Socks and to provide the required design and indemnity warranty envisaged in the sub-contract. On this basis the defendant assumed responsibility for the due performance by MS Roofs to Stocks. Stocks was informed by MS Roofs of the role the defendant would play in the design and construction of the roof. After the completion of the roof both the guarantees to which I have referred were issued. In view of its importance in deciding this matterthecontents of theITS-guarantee is quoted in full:“We hereby wish to confirm that the timber roof structure for the above project has been designed by MS Roofs using International Truss Systems TRI-DESIGN 3000computer program. This program has been developed by International Truss Systems and Gang-Nail Systems Limited (United Kingdom) with the full support of International Truss System’s registered professional engineers and in accordance with the following codes of practice:

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

CASE NO:8803/2003In the matter betweenPRIMEGRO PROPERTIES LIMITED PLAINTIFFandINTERNATIONAL TRUSS SYSTEMS (PTY) LTD FIRST DEFENDANT

CASE NO

:

8803/2003

In the matter between

PRIMEGRO PROPERTIES LIMITED PLAINTIFF

and

INTERNATIONAL TRUSS SYSTEMS (PTY) LTD FIRST DEFENDANT

M S ROOFS SECOND DEFENDANT

J U D G M E N T

VAN OOSTEN J[1] This is an exception taken by the first defendant to the plaintiff’s particulars of claim as lacking averments to sustain a cause of action.[2] The plaintiff sued the first and second defendants for damages in the sum of R1,7m arising out of the collapse of a section of the roof of the Brooklyn Mall Shopping Centre inPretoria. It is the plaintiff’s case that the roof collapsed as a result of the failure of a girder, which it is alleged was neither properly designed nor constructed to withstand the loads placed on it by the roof.[3] The shopping centre was constructed by Stocks & Stocks (Gauteng) (Pty) Ltd(“Stocks”)for the then owner of the property, Tembrook Properties (Pty) Ltd(“Tembrook”). The second defendant(“MS Roofs”)was selected by Stocks as sub-contractor for the design and erection of the roof. After completion of the roof, the first defendant issued a written guarantee in respect of the design and erection of the roof to Stocks(“the ITS-guarantee”)to which was annexed a further written guarantee by MS Roofs in respect of the design and manufacture of the roof(“the MS Roofs-guarantee”).[4] Some 4 years after completion of the building the plaintiff purchased the shopping centre from Tembrook. The plaintiff is still the owner of the property and in that capacity has sued the defendants for damages. MS Roofs is sued as the sub-contractor of Stocks, who as I have mentioned, was responsible for the design and erection of the roof. MS Roofs defends the action and its plea has already been filed.[5] The first defendant, whom I shall henceforth call the defendant, is sued on the basis of “having assumed” responsibility toward Stocks, in terms of the ITS- guarantee. The plaintiff’s main cause of action against the defendant is based on an alleged cession of “all contractual rights”arising out of the ITS-guarantee by Stocks to Tembrookin terms of the building contract, who in turn it is alleged, ceded its rights, including the rights under the ITS-guarantee to the Plaintiff pursuant to theagreement of salein respect of the shopping complex between Tembrook and the plaintiff. In the alternative to the plaintiff’s main claim two further claims are pleaded which I will revert to later in the judgment.THEFIRST EXEPTION: PLAINTIFF’S MAIN CLAIM[6] The first ground of exception relied upon by the defendant for the contention that the particulars of claim does not sustain a cause of action, concerns the plaintiff’s main claim, and is framed as follows:

VAN OOSTEN J

[1] This is an exception taken by the first defendant to the plaintiff’s particulars of claim as lacking averments to sustain a cause of action.[2] The plaintiff sued the first and second defendants for damages in the sum of R1,7m arising out of the collapse of a section of the roof of the Brooklyn Mall Shopping Centre in

Pretoria

. It is the plaintiff’s case that the roof collapsed as a result of the failure of a girder, which it is alleged was neither properly designed nor constructed to withstand the loads placed on it by the roof.[3] The shopping centre was constructed by Stocks & Stocks (

Gauteng

) (Pty) Ltd

(“Stocks”)

for the then owner of the property, Tembrook Properties (Pty) Ltd

(“Tembrook”)

. The second defendant

(“MS Roofs”)

was selected by Stocks as sub-contractor for the design and erection of the roof. After completion of the roof, the first defendant issued a written guarantee in respect of the design and erection of the roof to Stocks

(“the ITS-guarantee”)

to which was annexed a further written guarantee by MS Roofs in respect of the design and manufacture of the roof

(“the MS Roofs-guarantee”).

[4] Some 4 years after completion of the building the plaintiff purchased the shopping centre from Tembrook. The plaintiff is still the owner of the property and in that capacity has sued the defendants for damages. MS Roofs is sued as the sub-contractor of Stocks, who as I have mentioned, was responsible for the design and erection of the roof. MS Roofs defends the action and its plea has already been filed.[5] The first defendant, whom I shall henceforth call the defendant, is sued on the basis of “having assumed” responsibility toward Stocks, in terms of the ITS- guarantee. The plaintiff’s main cause of action against the defendant is based on an alleged cession of “all contractual rights

”

arising out of the ITS-guarantee by Stocks to Tembrook

in terms of the building contract

, who in turn it is alleged, ceded its rights, including the rights under the ITS-guarantee to the Plaintiff pursuant to the

agreement of sale

in respect of the shopping complex between Tembrook and the plaintiff. In the alternative to the plaintiff’s main claim two further claims are pleaded which I will revert to later in the judgment.

THE

FIRST EXEPTION: PLAINTIFF’S MAIN CLAIM

[

6

] The first ground of exception relied upon by the defendant for the contention that the particulars of claim does not sustain a cause of action, concerns the plaintiff’s main claim, and is framed as follows:

“Insofar as the plaintiff alleges either a contract of guarantee or an obligation arising out of the alleged guarantee, the plaintiff’s particulars of claim, reasonably construed, contain no allegations that the first defendant was a nominated or selected sub-contractor to Stocks. Clause 4.2 of the building contract, properly construed, cedes and transfers rights acquired from a nominated or selected sub-contractor only. Accordingly, there are insufficient allegations from which it may be inferred that Stocks ceded any rights in respect of obligations owed by the first defendant to it, including the “guarantee” in terms of the building contract.”

[7] I have already touched on the nature of the plaintiff’s main claim. For a proper understanding of the claim and the exception taken to it, it is necessary to refer to the allegations in support of this claim in somewhat more detail. Paraphrased and summarised these allegations are the following: MS Roofs in terms of its sub-contract with Stocksinter aliahad the following obligations: to have the roof designed and erected by a professional engineer; to have the completed trusses checked for quality and to have them hoisted and erected in accordance with certain prescribed standards and procedures. MS Roofs in turn contracted with the defendant to provide it with the necessary engineering support to ensure compliance with its obligations under the sub-contact with Socks and to provide the required design and indemnity warranty envisaged in the sub-contract. On this basis the defendant assumed responsibility for the due performance by MS Roofs to Stocks. Stocks was informed by MS Roofs of the role the defendant would play in the design and construction of the roof. After the completion of the roof both the guarantees to which I have referred were issued. In view of its importance in deciding this matterthecontents of theITS-guarantee is quoted in full:

7

] I have already touched on the nature of the plaintiff’s main claim. For a proper understanding of the claim and the exception taken to it, it is necessary to refer to the allegations in support of this claim in somewhat more detail. Paraphrased and summarised these allegations are the following: MS Roofs in terms of its sub-contract with Stocks

inter alia

had the following obligations: t

o have the roof designed and erected by a professional engineer; to have the completed trusses checked for quality and to have them hoisted and erected in accordance with certain prescribed standards and procedures. MS Roofs in turn contracted with the defendant to provide it with the necessary engineering support to ensure compliance with its obligations under the sub-contact with Socks and to provide the required design and indemnity warranty envisaged in the sub-contract. On this basis the defendant assumed responsibility for the due performance by MS Roofs to Stocks. Stocks was informed by MS Roofs of the role the defendant would play in the design and construction of the roof. After the completion of the roof both the guarantees to which I have referred were issued. In view of its importance in deciding this matter

the

contents of the

I

TS-guarantee is quoted in full:

“We hereby wish to confirm that the timber roof structure for the above project has been designed by MS Roofs using International Truss Systems TRI-DESIGN 3000computer program. This program has been developed by International Truss Systems and Gang-Nail Systems Limited (

United Kingdom

) with the full support of International Truss System’s registered professional engineers and in accordance with the following codes of practice:

A. General procedures and loadings to be adopted for the design of buildings SABS 0160-1989B. The structural use of timber – SABS 0163 Part 2-1994.C. The design, manufacture and erection of timber roof trusses – SABS 0243-1992.

A site inspection has been carried out by the engineers from ITS and the roof has been designed and erected in accordance with the above codes of practice.

The design values for the TRI-PLATEpunched metal connecters used in the manufacture of the trusses have been determined by the CSIR, and Lignum Laboratory (University if

).”

[8] On the strength of these averments, the plaintiff pleads that the ITS-guarantee “implicitly guaranteed that the roof as designed and erected by MS Roofs, was fit for the purpose for which it was intended alternatively this was an implied warranty”.[9] Finally, the cession relied upon by the plaintiff, is pleaded as follows:

8

] On the strength of these averments, the plaintiff pleads that the IT

S

-guarantee “implicitly guaranteed that the roof as designed and erected by MS Roofs, was fit for the purpose for which it was intended alternatively this was an implied warranty”.[

9

] Finally, the cession relied upon by the plaintiff, is pleaded as follows:

“9.9 The contractor, the said Stocks & Stocks, in terms of its building contract, clause 4.2, ceded to the then

owner of the property Tembrook Properties (Pty) Ltd, all contractual rights arising from any design responsibility undertaking by such subcontractor, and this cession included the guarantees by First and Second Defendants set out above.”

For the sake of completeness it is also necessary to quote clause 4.2 of the building contract:

“Any design responsibility undertaken by a nominated or selected sub-contractor shall not devolve upon the

contractor

and the

hereby cedes to the

employer

(ie Tembrook)

all contractual or other rights he shall have against such nominated or selected sub-contractor arising from any design responsibility undertaken by such nominated or selected sub-contractor. Any warranty regarding such design responsibility is hereby ceded to the

whether or not such design warranty is referred to in the sub-contract agreement.”

10

] The first exception is formulated as follows in the notice of exception:

On this basis it is accordingly contended that the particulars of claim fail to disclose a cause of action.

[1

1

] In considering this exception, it is at outset necessary that an interpretation be p

laced

on clause 4.2 of the building contract. In doing so, one must bear in mind that “the interpretation of… a contract is not appropriate at the exception stage unless the excipient can demonstrate that there are no possible meanings other than that contended for and that no admissible evidence which is not remote or merely notional can shed light on the true meaning of the words…” (

p

er

Heher J (as he then was) in

Jowell

v

Bramwell-Jones and Others

1998 (1) SA 836(W) at 866 I - 867A).

1998 (1) SA 836

2

] In the present matter nothing more than the notional possibility of evidence to explain the true meaning of the clause has been raised in argument by counsel for the plaintiff. I have not been informed what the nature of

evidence would be or

assuming

at best for the plaintiff

that

such evidence d

oes

exist, what effect it might have on the interpretation of the clause. I am satisfied that the meaning of the clause can readily be ascertained by a plain reading thereof. The plaintiff contends that the clause is clear in its meaning: the phrases “such design responsibility” and “such design warranty” contained in the clause it was submitted, refer to the design responsibility specifically undertaken by a “nominated or selected sub-contractor.” In the absence of an allegation that the defendant is or was a “nominated or selected sub-contractor”, it was further submitted that no case has been made out that Stocks ceded the guarantee to Tembrook, which leads to the logical conclusion that it could not have been ceded by Tembrook to the plaintiff.

3

] The defendant adopted a double barrelled approach: firstly, it was submitted that the words “any warranty” in the last sentence of clause 4.2 should be interpreted widely so as to include any warranty issued by anybody as long as it was issued in regard to the design responsibility of MS Roofs. Put differently, the warranties included in the cession, in terms of the clause should not be qualified by the words “nominated or selected sub- contractor”. I am unable to agree. Read in the context of a clause as a whole the words “any guarantee” are clearly qualified in the last sentence of the clause by the further words “regarding

such

design responsibility”, which in turn undoubtedly cannot but refer to “any design responsibility undertaken by a nominated or selected sub- contractor”. An interpretation divorcing the words “any warranty” from “the design responsibility undertaken by a sub-contractor” as contended for by plaintiff’s counsel would in my view detract from the meaning of the clause as a whole and can for that reason not be sustained.[1

4

] Secondly, and as an alternative argument counsel for the plaintiff advanced the following proposition: the plaintiff in alleging firstly, a cession and secondly, that the cession included the ITS-guarantee has done just what the defendant is legally required to do in setting out its cause of action - which is to plead facts and not the evidence in support thereof.

See

Makgae v Sentraboer (Koperatief) Bpk

1981 (1) SA 238(T) at 243H.

1981 (1) SA 238

Based on these allegations

simpliciter

the defendant is called upon either to admit or deny the allegations, which is sufficient to identify the issues between the parties and to proceed to trial. The argument in my view is fundamentally misconceived. A plain reading of the particulars of claim reveals that the plaintiff in pleading its case has not simply relied upon an allegation of cession. It went further and incorporated clause 4.2 of the building contract on which it in fact relies. The contents of

clause therefore not only forms part and parcel of the allegations made in the particulars of claim, it is

moreover

essential to the plaintiff’s case.

It can not

simply

be

ignore

d

.

I conclude that upon a proper construction of the cession-clause the cession by Stocks to Tembrook did not include the obligations arising out of the ITS-guarantee. It follows that the plaintiff’s reliance on the cession therefore can not be sustained.

5

]

For these reasons the

exception

ought to

be upheld.

THE SECOND EXCEPTION: PLAINTIFF’S FIRST ALTERNATIVE CLAIM

] The plaintiff’s first alternative claim as I have

indicated

is in delict and has been pleaded as follows:

“10.1The First and Second Defendants, when they were involved in the erection of the said roof during 1997, owed a duty to the general public and more specifically to any person who would later purchase the said property or who would lease or use the property or any portion thereof, to ensure that the roof would be properly designed and erected in such a way that its strength would be sufficient to ensure that it would not collapse under normal conditions.”

[17] The two grounds upon which this exception is founded are firstly, that the plaintiff has failed to allege that the first defendant either designed or erected the roof, and secondly that there are insufficient allegations to support the averment that the defendant owed the plaintiff a legal duty to ensure that the roof would be properly designed and erected.[18] In argument, much was made of the uncertainty created by the word “involved” where it appears in paragraph 10.1 of the pleadings. In passing I am constrained to remark that the formulation of the plaintiff’s particulars of claimregrettably appears to be the product of some woolly thinking. It certainlydid not strike me as a model of clarity.Amendments resulting from an earlier amendment havemoreover simply been interpolated into andcut and pastedon the original document. The pleader unfortunately has overlooked the impact of thoseamendments on the logical flow and fluency of the allegations. The end result was an inordinate bundling together of allegations, often difficult not only to read but also to understand. Be that as it may, and returning to the exception, the responsibilities of the defendant relating to the construction of the roof are to be gleaned from the various background facts intertwined with the allegations contained in the particulars of claim. First and foremost the defendant as I have already mentioned undertook to and did in fact issue the ITS-guarantee. It is perhaps useful at this juncture to refer to one of the codes to which reference is made in the guaranteeas providing someindication of the nature and scope of the defendant’s responsibilities. The code is described as the SABS 0160 – 1989 codeIt is referred to and quoted in full in par 9.6.3 of the particulars of claim.and providesinter aliaas follows:

] The two grounds upon which this exception is founded are firstly, that the plaintiff has failed to allege that the first defendant either designed or erected the roof, and secondly that there are insufficient allegations to support the averment that the defendant owed the plaintiff a legal duty to ensure that the roof would be properly designed and erected.[1

] In argument, much was made of the uncertainty created by the word “involved” where it appears in paragraph 10.1 of the pleadings. In passing I am constrained to remark that the formulation of the plaintiff’s particulars of claim

regrettably appears to be the product of some woolly thinking. It certainly

did not strike me as a model of clarity.

Amendments resulting from an earlier amendment have

moreover simply been interpolated into and

cut and pasted

on the original document. The pleader unfortunately has overlooked the impact of th

ose

amendments on the logical flow and fluency of the allegations. The end result was an inordinate bundling together of allegations, often difficult not only to read but also to understand. Be that as it may, and returning to the exception, the responsibilities of the defendant relating to the construction of the roof are to be gleaned from the various background facts intertwined with the allegations contained in the particulars of claim. First and foremost the defendant as I have already mentioned undertook to and did in fact issue the ITS-guarantee. It is perhaps useful at this juncture to refer to one of the codes to which reference is made in the guarantee

as providing some

indication of the nature and scope of the defendant’s responsibilities. The code is described as the SABS 0160 – 1989 code

It is referred to and quoted in full in par 9.6.3 of the particulars of claim.

and provides

as follows:

“General:Ensure that any building or any part of a building is designed to possess sufficient structural capacity to resist safely and effectively all loads and influences that may reasonably be expected to act upon it, having regard to the expected service life of such building.”

“

General:

Ensure that any building or any part of a building is designed to possess sufficient structural capacity to resist safely and effectively all loads and influences that may reasonably be expected to act upon it, having regard to the expected service life of such building.”

The defendant’sresponsibilitiesfurther includedprovidingengineering support to MS Roofs. Ittherefore played a prominent if not vital role in the design and erection of the roof. The “involvement” of the defendantin the erection of the roof as pleaded must in my view accordingly beunderstoodas a reference to the responsibilities of the defendant to which I have referred above.

T

he defendant’s

responsibilities

further included

provid

ing

engineering support to MS Roofs

. It

therefore played a prominent if not vital role in the design and erection of the roof. The “involvement” of the defendant

in the erection of the roof as pleaded must in my view accordingly be

understood

as a reference to the responsibilities of the defendant to which I have referred above.

] The next question is whether the defendant owed a duty

to

“ensure that the roof was properly designed and erected” to the plaintiff.

The

plaintiff

alleges

that the duty was shared between the defendant and MS Roofs, which in turn forms the basis for holding them liable jointly and severally for the damages sustained.

20

A

convenient starting point in considering this question is a reference to the summary of the legal position in regard to the concept of a legal duty of care by Millner

Negligence in Modern Law

(1967) at 230 quoted with approval in

Tsimatakopoulos v Hemmingway Isaacs & Coetzee CC and Another

1993 (4) SA 428(C) at 431C:

1993 (4) SA 428

“The duty concept in negligence operates at two levels. At one level it is fact based, at another it is policy-based. The fact based duty of care forms part of the enquiry whether the defendant’s behaviour was negligent in the circumstances. The whole enquiry is governed by the foreseeability test and ‘duty of care’ in this sense is a convenient but dispensable concept. On the other hand the policy-based or notional duty of care is an organic part of the tort; it is basic to the development and growth of negligence and determines its scope that is to say the range of relationships and interests protected by it. Here is a concept entirely divorced from foreseeability and governed by the policy of the law. “Duty” in this sense is logically antecedent to “duty” in the fact-determined sense. Until the law acknowledges that a particular interest or relationship is capable in principle of supporting a negligence claim, enquiries as to what was reasonably foreseeable are premature.”

The same writer is cited with approval in

Administrateur Natal v Trust Bank van Suid-Afrika Bpk

1979 (3) SA 824(A) at 833 D-F. See also JC van der Walt & J R Midgley

1979 (3) SA 824

Principles of Delict

rd

ed par 64.

In the practical application of the question whether a duty of care exists the Court is called upon to make a decision as to policy, depending on the legal convictions of the community.

Jowell v Bramell Jones & Others

supra

at 877J – 878D; Neethling Potgieter Visser

South African Law of Delict

th

ed 69.

In the present matter the crucial element requir

consideration is the closeness or proximity of the relationship between the plaintiff and the defendant. The plaintiff it will be remembered is the successor in title to the previous owner, Tembrook. I have not been referred to nor was I able to find direct authority in point dealing with this particular situation. The phrases “proximity” or “closeness” are hardly susceptible of precise definition. Nor is there a simple formula or touchstone to which recourse can be had in order to provide a ready answer to the question whether, given certain facts, a relationship will be so closely connected as to impose liability. In

Standard Bank of South Africa Ltd v

OK Bazaars (1929) Ltd

2000 (4) SA 382(W) at 397D AndrGautschi AJ in dealing with liability for negligent misstatement causing pure economic loss recognised the closeness of the plaintiff and the defendant as one of the factors and perhaps the most important to be considered in order to avoid the spectre of limitless liability. This

2000 (4) SA 382

of course is in line with the

often-expressed warning against limitless liability or “oewerlose aanspreeklikheid”.

he phrase used by the then Chief Justice in

Administrateur Natal v

Trust Bank

supra).

Some assistance however can be derived from the judgment of the House of Lords in

Anns v Merton

London

Borough

[1977] UKHL 4;[1977] 2 All ER 492at 498

[1977] UKHL 4

[1977] 2 All ER 492

Referred to in

Caparo Industries plc v Dickman and Others

[1990] UKHL 2;[1990] 1 All ER 568(HL)at 573e, which in turn is referred to in

[1990] UKHL 2

[1990] 1 All ER 568(HL)

Standard Bank of SA Ltd v OK Bazaars (1929) Ltd

,

supra.

where a

“most comprehensive attempt”

was made to articulate a single general principle in this regard:

“Through the trilogy of cases in this House, Donoghue v Stevenson[1931] UKHL 3;[1932] AC 562, [1932] All ER Rep I, Hedley Byrne & Co Ltd v Heller & Partners Ltd[1963] UKHL 4;[1963] 2 All ER 575,[1964] AC 465, and Home Office v Dorset Yacht Co Ltd[1970] UKHL 2;[1970] 2 ALL ER 294,[1970] AC 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise (see the Dorset Yacht case[1970] UKHL 2;[1970] 2 All ER 294at 297-298,[1970] AC 1004at 1027 per Lord Reid).”

[1931] UKHL 3

[1932] AC 562

[1963] UKHL 4

[1963] 2 All ER 575

[1964] AC 465

[1970] UKHL 2

[1970] 2 ALL ER 294

[1970] AC 1004

[1970] 2 All ER 294

Not surprisingly the

concept of a

general principle

was severely criticised

in later

judgments

Caparo Industries plc v Dickman and Others supra

at 573j.

Be that as it may, the question of proximity in my view must be considered pragmatically in the particular circumstances of each case, whilst of course recognising the well established principles relating to factual causation.

As to which see

International Shipping Co Ltd v Bentley

1990 (1) SA 694(A) at 700E-I. See also

1990 (1) SA 694

Neethling and Potgieter

1990

De Jure

377.

[2

] Counsel for the plaintiff heavily relied on the judgment of Foxcroft J in

Tsimatakopoulos

, where the claim of the plaintiff, the successor in title to the owner of a property, against a firm of structural engineers for delictual damages arising out of their design of a retaining wall on the property for the original owner, was allowed. The essential question for decision was whether delictual liability arose in such a situation.

The learned judge remarked that no direct authority in point existed and then proceeded to apply the o

rdinary common law principles of the

Lex Aquilia

to the facts of the matter

which led him to the following

conclu

tion

“I am satisfied upon the agreed facts of this case that defendant, in the position of a professional engineer, should have foreseen the likelihood of harm being caused to someone in the position of the plaintiff. He must have known that the wall would not remain stable, and that the property on which the wall was built might be sold to another person, and that his negligent act was likely to cause that person harm.”

] It is true that the facts of the present matter reveal at least one material distinguishing feature: the defendant neither designed nor erected the roof, its involvement in the design and erection of the roof as I have alluded to, was more of an indirect nature. I am however in respectful agreement with the reasoning of the learned judge in that matter and I think it ought to be applied in the present situation. Dealing with the proximity element I can see no reason for limiting the liability of the defendant on the facts of this matter, to the then owner of the property. Both the main contractor and of course, the then owner of the building relied on the defendant’s expertise, supervision and guarantee for accepting the quality of workmanship relating to the roof. The defendant in my view should have foreseen the likelihood of harm being caused to someone in position of the plaintiff, ie an owner of the building. In my view it is not necessary that harm to a particular owner should have been foreseen: a class of persons,

in casu

both

the then owner as well as the subsequent owner of the property would constitute a proximity in relationship that is sufficient on the one hand to impose liability and to avoid limitless liability on the other.[2

] It is accordingly my finding that the particulars of claim contain sufficient allegations

on which the

defendant

’s

legal duty to prevent the loss

can be based

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd

[1991] ZASCA 190;1992 (1) SA 783(A) at 797F.

[1991] ZASCA 190

1992 (1) SA 783

To summarise, in applying the

boni mores

criterion to determine whether such a duty existed, I have given due consideration to the following factors that in my view are pertinent in the circumstances of this matter:

(a)

taking the particulars of claim on face value it emerges that the defendant should have foreseen that his conduct would cause damage to the owner of the building;(b)the defendant exercised a certain expertise, and thereby professed special skill in the engineering aspects of the design and erection of roof structures;(c)the defendant’s duty was to certify and guarantee the sound structure of the roof of athe building, ashopping complex which is a permanent structure exclusively intended for public use; and(d)the damage to the roof has occurred once and it will not happen again.

taking the particulars of claim on face value it emerges that the defendant should have foreseen that his conduct would cause damage to the owner of the building;

(b)

the defendant exercised a certain expertise, and thereby professed special skill in the engineering aspects of the design and erection of roof structures;

(c)

the defendant’s duty was to certify and guarantee the sound structure of the roof of a

the building, a

shopping complex which is a permanent structure exclusively intended for public use; and

(d)

the damage to the roof has occurred once and it will not happen again.

[24] My conclusion on the merits of this exception is that aprima faciecase of wrongfulness has been made out against the defendant.In any event this being an exception I think that the most favourable interpretation of the law to the plaintiff should at this stage be adopted. It will of course eventually be for the trial court on all the evidence before it to finally decide on this issue. For these reasons the second exception falls to be dismissed.THE THIRD EXCEPTION: PLAINTIFF’S SECOND ALTERNATIVE CLAIM[25] The plaintiff’s second alternative claim is based on negligent misrepresentation (misstatement), and is framed as follows in the particulars of claim:

] My conclusion on the merits of this exception is that a

prima facie

case of wrongfulness has been made out against the defendant.

In any event t

his being an exception I think that the most favourable interpretation of the law to the plaintiff should at this stage be adopted. It will of course eventually be for the trial court on all the evidence before it to finally decide on this issue. For these reasons the second exception falls to be dismissed.

THE THIRD EXCEPTION: PLAINTIFF’S SECOND ALTERNATIVE CLAIM

] The plaintiff’s second alternative claim is based on negligent misrepresentation (misstatement), and is framed as follows in the particulars of claim:

“10.2 First and Second defendants owed a duty negligently not complied with by them to the general public, and especially to any owner or future owner of the said premises to take all reasonable steps to ensure that the roof was properly designed and erected in order to prevent it from collapsing under normal conditions. Furthermore First and Second defendants knew that the issue of any of “B” or “C” (ie the guarantees) would create the impression with the building owner that the roof was fit for its purpose and that the building could be safely utilised, and therefore acted negligently in issuing these documents. First defendant at all relevant times was aware that the certificate (ie theITS- guarantee) was false in as much as, to the knowledge of the first defendant, no site inspection had been carried out by any engineer from ITS (the defendant).10.3 But for the wrong impression created with the then building owner, the building would have been supplied with a roof fit for its purpose and the Plaintiff would not have suffered the damages resulting from the collapse of the roof.”

“10.2 First and Second defendants owed a duty negligently not complied with by them to the general public, and especially to any owner or future owner of the said premises to take all reasonable steps to ensure that the roof was properly designed and erected in order to prevent it from collapsing under normal conditions. Furthermore First and Second defendants knew that the issue of any of “B” or “C” (ie the guarantees) would create the impression with the building owner that the roof was fit for its purpose and that the building could be safely utilised, and therefore acted negligently in issuing these documents. First defendant at all relevant times was aware that the certificate (ie the

ITS

- guarantee) was false in as much as, to the knowledge of the first defendant, no site inspection had been carried out by any engineer from ITS (the defendant).10.3 But for the wrong impression created with the then building owner, the building would have been supplied with a roof fit for its purpose and the Plaintiff would not have suffered the damages resulting from the collapse of the roof.”

] The ground

upon which this

is founded

reads as follows:

“13 In respect of the second delictual claim, based upon negligent misstatement, the plaintiff has failed to make sufficient averments that:

13.1

annexure“C” (ie the ITS-guarantee) constitutes a representation to the plaintiff that the roof was fit for purpose and that the building could be safely utilised;13.2the plaintiff received the representations contained in annexure “C”;13.3the plaintiff relied upon the representations made by the first defendant to its prejudice.

13.2

13.3

1.4 The second delictual claim accordingly lacks averments to sustain a cause of action.”

] That negligent misstatement can give rise to delictual liability in our law has now been accepted (

EG Electric Co (Pty) Ltd

Franklin

1979 (2) SA 702(E) at 705A; Neethling

1979 (2) SA 702

et al

302).

The thrust of the

argument

of

counsel for the defendant

was

that there is no allegation made in the particulars of claim, nor

could it be made

on the facts pleaded, that the plaintiff relied on the alleged misrepresentation made by the defendant. The

crucial

issue therefore concerns the element of factual causation and in the view I take of the matter it is

necessary only to decide this issue

.[2

] In

Bayer

South Africa

(Pty) Ltd

Viljoen

1990 (2) SA 647(A) a claim based on negligent representation was rejected

1990 (2) SA 647

because of the absence of factual causation. In order to establish liability in the present matter one of the elements of the delict of negligent misrepresentation the plaintiff must allege and prove is causation, which of course involves both factual and legal causation.

; Neethling

174; Van der Walt and Midgley par 129.

In par 9.3 of the particulars of claim quoted above, the plaintiff in respect of the element of causation relies on the allegation “that but for the wrong impression created with Tembrook the building would have been supplied with a roof free of defects”. I

n my view in the absence of

i

nducement by or reliance on the misstatement being pleaded the paragraph is

not supportive of causation.

That reliance on the misrepresentation indeed is an element of the delict of misrepresentation appears from the English case of

Hill Samuel Bank Ltd v

Frederick Brand Partnership & Another

[1994] 10 Const LJ 72,

[1994] 10 Const LJ 72

See also the English textbook

Charlesworth & Percy On Negligence

ed 8-51/52

where in relation to so called “duty of care” letters

More or less the equivalent of the guarantees issued in the present matter.

issued by architects and consulting engineers to a third party who intended to purchase a building they were engaged to construct, no liability was found to have arisen because the plaintiff did not in fact rely upon any representation.[2

] Finally I should mention that counsel for the plaintiff sought to draw an analogy of the facts of this matter to those dealt with by Kannemeyer J in

. In that matter which was also dealt with on exception, liability was found to exist resulting from a misstatement contained in an electrical certificate certifying that the electrical wiring of a house was in accordance with municipal regulations

The certificate was issued by the defendant, a firm of registered electricians, to the owner of the property, who in turn handed it to the plaintiff, who was the purchaser of the property and required it for purposes of transfer of the property into her name. The plaintiff subsequently resold the property and it was only then discovered that the electrical wiring did not comply with the municipal regulations and the defects had to be remedied. The Court found that the defendant had a duty towards the plaintiff (as the then purchaser of the property) to exercise care in supplying the certificate where the defendant knew that the original owner would hand the certificate to the plaintiff, who required it to satisfy herself that the electrical wiring complied with the municipal regulations. The plaintiff therefore undoubtedly relied on the representation contained in the electrical certificate which of course clearly distinguishes it from the present matter where

the element of

reliance on the ITS-guarantee by the plaintiff has neither been pleaded nor so it must be accepted can it, on the facts alleged in the particulars of claim be pleaded.[

30

] It follows that for these reasons the exception must be upheld.

Costs

[3

] As for the costs of this application, the defendant has been substantially successful and accordingly is entitled to be awarded its costs.

Order

] In the result the following order is made:

1) The exception to the plaintiff’s main claim is upheld and the particulars of claim relating thereto are set aside

2) The exception to the plaintiff’s first alternative claim is dismissed.3) The exception to the plaintiff’s second alternative claim

is

upheld and the particulars of claim relating thereto are set aside

4) The plaintiff is given leave, if so advised, to amend its particulars of claim within one month

5) The plaintiff is ordered to pay the defendant’s costs of the application.

__________________________________________FHD VAN OOSTENJUDGE OF THE HIGH COURT OF

COUNSEL FOR THE PLAINTIFF

ADV JL VAN DER MERWE SC

PLAINTIFF’S ATTORNEYSKLAGSBRUNDEVRIES

PLAINTIFF’S ATTORNEYS

KLAGSBRUN

DE

VRIES

COUNSEL FOR THE DEFENDANT ADV AISREDDINGSC

COUNSEL FOR THE DEFENDANT ADV AIS

REDDING

SC

DEFENDANTS’ ATTORNEYS ANDREW MILLER & ASS c/o BICCARI BOLLO & MARIANO

DATES OF HEARING3 JUNE 2005

DATES OF HEARING

3 JUNE 2005

DATE OF JUDGMENT10 JUNE 2005

DATE OF JUDGMENT

10 JUNE 2005