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Negligence Not Proved

Negligence Not Proved
November 1, 2011 gnuworld
Judgement

In the matter of Dormac Marine and Engineering (Pty) Ltd v Calmin Andrew Henneberry a full bench of the Supreme Court of Appeal upheld an appeal from the Kwazulu-Natal High Court (Durban) and granted absolution from the instance, with costs.

The Respondent (as Plaintiff) had sued the Appellant (as Defendant) in the Durban High Court for damages for bodily injuries which he had sustained whilst working on a shipping vessel at the Durban dry dock.  The claim was based on a negligent omission on the part of the Appellant in that it inter alia failed to provide proper and safe equipment for use on site and that it failed to provide safety personnel to inspect equipment utilized.

At the time of the incident giving rise to the action the Respondent was employed by a sub-contractor of the Appellant as a boilermaker.  His work entailed fitting steel plates onto the hulls of ships damaged out at sea.  Whilst on duty during the evening of 3 July 2002 a chain block on the side of a steel plate snapped, causing the steel plate to “whip out” onto the Respondent’s left hand, crushing it and his left wrist, whereafter it whipped back up before crashing down.  The injuries were so serious that the Respondent’s hand could not be saved and was amputated.

Dormac admitted in its Plea that only one safety officer was available on the night in question and that it had an obligation to provide proper and safe equipment for use on site but pleaded that it is not the obligation of its safety officer to check equipment:  that the responsibility to check the equipment while it was being used rested on the sub-contractor; that the equipment supplied was in good condition and had been checked and certified as such;  that the reason a link in the chain block failed, causing injury to the Respondent, was the failure of a lug which had been welded by the Respondent and that in turn led to unexpected excessive force on the chain block;  and that chain blocks were the usual equipment used for the work that was being carried out and therefore appropriate.

After carefully analyzing the evidence presented in the Court below the Supreme Court of Appeal held that although there were certain contradictions between the evidence presented by various factual witnesses, it was not necessary to embark upon an assessment of all of the evidence so as to arrive at a finding as to which version is true and which is false and assumed for purposes of the judgment that the Respondent’s version was true. The Court then turned to the question of whether the Respondent had succeeded in establishing negligence on the part of the Appellant on the grounds alleged in the particulars of claim.  The Court noted that the Appellant had essentially accepted in its plea that it had a duty to take reasonable steps to guard against the foreseeable harm which may arise if old, unsafe or defective chain blocks were provided.  That being so, the Court held that the next question was whether the Appellant did take precautions to guard against harm and, if so, whether those precautions could be regarded as reasonable.

The Court then referred to a number of authorities relating to the reasonableness of precautions taken to guard against foreseeable harm before coming to the conclusion that the steps that had been taken by the Appellant to guard against foreseeable harm, by sending all rigging equipment returned to it after use by the sub-contractor and other contractors to an independent contractor for inspection and testing before being put to use again, were reasonable.  The Court consequently held that the Respondent had failed to discharge the onus resting upon it of proving negligence on the part of the Appellant and held further that the Court below had erred in saddling the Appellant with liability on the basis of the principle res ipsa loquitur.

For a full copy of the judgment of the Supreme Court of Appeal click here.

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