Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Booysen J
• Judgment Date: 30 June 1982
• Citation: 1982 (4) SA 371 (D)
• Hearing Date: 19 October 1981
• Court: Durban and Coast Local Division

Booysen J:

In this case the defendant has excepted to plaintiff's particulars of claim and opposed an application for amendment thereof respectively on the grounds that the particulars of claim did not E disclose a cause of action and that the application would not cure the defect.

In the particulars of claim plaintiff is described as a company which carries on business as a brick manufacturer, and defendant as a company which carries on business as a civil engineering contractor, in Durban. Plaintiff's claim reads:

'3.

On or about 27 March 1980 and at Avoca, Natal, while the F defendant was in the process of building a road, a bulldozer which was then being driven by an employee of the defendant, acting within the course and scope of his employment as such, cut certain electrical cables.

4.

The incident described in para 3 hereof was caused by the G negligence of the driver of the said bulldozer, acting as aforesaid, who was negligent in one or more of the following respects:

(a)

he failed to keep a proper look-out;

(b)

he drove the bulldozer without due care and attention;

(c)

knowing that there were electrical cables in the vicinity, he H failed to ensure that in driving and operating the bulldozer he allowed sufficient clearance to ensure that he caused no damage to such cables.

5.

Alternatively to para 4 hereof, the said incident was caused by the negligence of the defendant which was negligent in one or more of the following respects:

(a)

it failed to ascertain the precise whereabouts of such cables;

(b)

alternatively, having ascertained the precise whereabouts of such cables, it failed:

Booysen J

(i)

to ensure that the driver of the said bulldozer was informed thereof; and/or

(ii)

A to take any or any adequate precautions for the protection thereof.

6.

Alternatively to paras 4 and 5 hereof, the said incident was caused by the negligence both of the driver of the bulldozer, acting as aforesaid, and the defendant in the respects alleged in paras 4 and 5 hereof respectively.

7.

B As a direct consequence of the said incident and of the said negligence:

(a)

the electrical supply to the plaintiff's No 5 and No 6 works and the works of Corocrete (Pty) Ltd ('Corocrete') (all of C which were fed by the electrical cables which were cut as aforesaid) was cut off;

(b)

the plaintiff and Corocrete suffered a loss of production;

(c)

as a result thereof, the plaintiff and Corocrete suffered loss and damage as follows:

(i) D Loss in brick production - plaintiff's No 5 works
Five chambers x 29 813		149 065
Less 8 per cent waste	11 925
1 per cent reburns	1 490	13 415
		135 650
		E Bricks
Commons 135 650 @ R52,00/1000		R7 053,80
Less cost savings
Shale 149 065 x R2,59/1000	R386,08
F Brick oil 149 065 x R0,33/1000	R 49,19
Coal 149 065 x R4,71/100	R702,10
Electric power	R230,00
		R1 367,37
	G Loss	R5 686,43
(ii) Loss in brick production - plaintiff's No 6 works
Five chambers smooth red x 48 518	242 590
H Less waste	21 834
	220 756 Bricks
Good face 186 794 @ R110,00		R20 547,34
Rejects 33 962 @ R65,50		R2 224,51
		R22 771,85

Booysen J

Less cost savings
HFO 242 590 x R27,58/1000	R6 690,63
Shale 242 590 x R3,76/1000	R 912,14
Barium 242 590 x R0,39/1000	R 94,61
A Electric power	R 581,00
		R 8 277,38
B		R14 494,47
(iii) Corocrete's lost production
A plant
2,7 hours lost
1 379 units at selling price of	R31,00/100	R427,49
Less raw material saving	R10,96/100	(151,14)
C Water, power and fuel saving		(6,60)
		R269,75
B Plant
D 10,9 hours lost
25 236 units at selling price of	R117,12/1000	R2 955,64
Less raw material saving	R60,12/1000	(1 517,19)
Water, power and fuel saving		(26,91)
		R1 411,54
E Crusher
10,9 hours lost
80,6 m3 at R3,56/m3		286,94
Less raw material cost at 0,54 c/m3		(43,52)
F Water, power and fuel saving		(46,32)
		R197,10
	Total	R1 878,39

8.

G Corocrete has duly ceded to the plaintiff its claim against the defendant arising out of the said incident and the said negligence.

9.

In the premises, the defendant is obliged to pay to the plaintiff H the sum of R22 059,29, being the total of the amounts set forth in para 7 (c) hereof.'

In reply to a request for further particulars plaintiff stated:

'1.

Ad para 3:

(a)

The cables were cut at a point approximately four to five metres from the western edge of the then existing Kwa Mashu Road, opposite the signboard at the then entrance to the plaintiff's Avoca Works.

(b)

The plaintiff believes that the property upon which the bulldozer

Booysen J

was operating belongs to the Natal Provincial Administration.

(c)

Two cables were cut.

(d)

A The plaintiff believes that the Durban City Council was the owner of each cable.

(e)

The cables supplied electricity to the whole of the Avoca complex (in answer to the question: 'To whom or to which area did the cables supply electricity'?)

2.

B Ad para 4 (c):

The plaintiff believes that the driver must have been so informed by his employer, the defendant. In any event, the driver was so informed on the morning of 27 March 1980 by one R A Shuttleworth. C (In answer to the question: 'When and in what manner did the driver of the bulldozer acquire the knowledge alleged'.)

3.

Ad para 5 (b):

The plaintiff does not know when and in what manner the defendant ascertained the exact whereabouts of the cables but assumes that the D defendant, in accordance with normal practice, would have obtained such information from the Durban City Council by obtaining from the Council a diagram or plan reflecting the position of electrical cables in the area.

4.

Ad para 7:

The electrical supply was cut off at approximately 2.40 pm on 27 E March 1980 and was restored at approximately 6.15 pm on 28 March 1980.'

Defendant excepted to the particulars of claim as amplified by the further particulars:

'.. on the ground that they lack averments necessary to sustain an action in that:

1.

F The claim:

(a)

is founded on delict and

(b)

is one for pure financial or economic loss.

2.

It is not alleged that there is any contractual nexus between the excipient and the respondent.

3.

G The respondent was not the owner of the electrical cables referred to in para 3 of the particulars of claim, the severance of which is alleged to have caused the respondent's loss.

4.

In the premises:

(a)

No duty of care rested on the excipient or its employees towards the respondent.

(b)

H The excipient is not in law liable to the respondent for any economic or financial loss which the respondent may have sustained as a result of the alleged negligence of the excipient's employees.'

Thereafter plaintiff gave notice of its intention to amend its particulars of claim by introducing the following paragraph after para 6:

'7.

When the incident described in para 3 hereof occurred the defendant knew or ought to have known that:

(a)

the said electrical cables were used to supply electricity to

Booysen J

industries in the vicinity, including the plaintiff's No 5 and No 6 works and the works of Corocrete (Pty) Ltd ('Corocrete');

(b)

A if the said electrical cables were cut the effect would be to interrupt the supply of electricity to such industries, including the said works;

(c)

if the supply of electricity to such industries, including the said works, were cut, they would suffer a loss of production and hence of income.';

B and by renumbering the subsequent paragraphs. Defendant delivered a notice of opposition to the proposed amendment. Plaintiff then applied for the amendment to be granted and in the supporting affidavit its attorney stated that he had been informed by counsel that the defendant's contention was that the allegations contained in the notice of amendment did not cure the complaint made in the notice of exception

C The application and exception were argued together and, as I understood counsel, they were in agreement that, if I came to the conclusion that the particulars of claim as amended disclosed a cause of action, I should grant the amendment and dismiss the exception with D costs and, if not, I should uphold the exception and refuse the amendment with costs.

The legal basis of the plaintiff's claim is the lex Aquilia. In essence the Aquilian action lies for patrimonial loss caused wrongfully (or unlawfully) and culpably. Although the contrary view had long been held E by many authorities, it seems clear that the fact that the patrimonial loss suffered did not result from physical injury to the corporeal property or person of the...