Two Pedestrians Mining CC v Exxaro NBC Coal (25392/2011) [2013] ZAGPPHC 466 (12 February 2013)

Two Pedestrians Mining CC v Exxaro NBC Coal (25392/2011) [2013] ZAGPPHC 466 (12 February 2013)

The court found that the carriage of the plaintiff's crusher was gratuitous and not for reward, as there was no express or tacit agreement for payment or remuneration. The common law liability of a private carrier in such circumstances is limited to gross negligence or malfeasance, which was neither pleaded nor established. The evidence showed that the plaintiff's site manager, Mr Burton, was responsible for conducting a risk assessment and ensuring the suitability of the low-bed for the crusher. He failed to ascertain the weight of the crusher and the carrying capacity of the low-bed, despite clear indications on both. The damage occurred solely due to the plaintiff's negligence in...

Citation
[2013] ZAGPPHC 466
Parties
Plaintiff: Two Pedestrians Mining CC; Defendant: Exxaro NBC Coal
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 February 2013
Case Number
25392/2011
Procedural Posture
Civil Trial / Liability Phase; Quantum Separated and Postponed
Outcome
Plaintiff's claim and alternative claim are dismissed with costs.
Judges
P.A. Meyer
Legal Topics
Contract of Carriage, Tacit Terms, Negligence, Damages to Property
Commercial and Corporate Delict Contract of Carriage Tacit Terms Negligence Damages to Property

Case Brief

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Parties

Two Pedestrians Mining CC

Plaintiff

Exxaro NBC Coal

Defendant

Procedural Posture

Civil Trial / Liability Phase; Quantum Separated and Postponed

Legal Issues

  1. 1 Whether the defendant is liable for damages to the plaintiff's crusher under contract or delict.
  2. 2 Whether the carriage of the plaintiff's crusher was gratuitous or for reward.
  3. 3 Whether tacit terms alleged by the plaintiff formed part of the contract of carriage.

Ratio Decidendi

The court found that the carriage of the plaintiff's crusher was gratuitous and not for reward, as there was no express or tacit agreement for payment or remuneration. The common law liability of a private carrier in such circumstances is limited to gross negligence or malfeasance, which was neither pleaded nor established. The evidence showed that the plaintiff's site manager, Mr Burton, was responsible for conducting a risk assessment and ensuring the suitability of the low-bed for the crusher. He failed to ascertain the weight of the crusher and the carrying capacity of the low-bed, despite clear indications on both. The damage occurred solely due to the plaintiff's negligence in...

Court Disposition

Plaintiff's claim and alternative claim are dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.
  • The plaintiff's alternative claim in delict is dismissed with costs.