Joffe & Co Ltd v Hoskins and Another

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 10 June 1941
• Citation: 1941 AD 431
• Court: Appellate Division

Joffe & Co Ltd Appellant v Hoskins and Another Respondents
1941 AD 431

1941 AD p412

Citation	1941 AD 431
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
Heard	April 24, 1941; April 25, 1941; April 29, 1941; April 30, 1941; May 1, 1941; May 2, 1941
Judgment	June 10, 1941

Flynote : Sleutelwoorde

Negligence — Collapse of cantilever hood of reinforced concrete — Steel work designed and fixed by engineer — Concrete work done by Contractor — Duty of engineer to guard against displacement of steel work by Contractor — Durban Municipal By-laws 165 and 223 — Meaning of — Costs — Action by widow and minor children of deceased for damages — Separate representation at consolidated trials — Minor — Guardian — Rights in Natal of mother on death of father.

Headnote : Kopnota

In actions for damages arising out of the collapse of a cantilever hood on a building it appeared that the first defendant, a firm of engineers, had prepared the design for the hood and had undertaken to supply and deliver on site, cut, bend and fix in position, all the steel reinforcement in the concrete construction of the hood. The design prepared by the engineers was such that it was essential for its security that the reinforcing steel should be near the top of the concrete, and care had to be exercised in the process of concreting to ensure that the reinforcing rods were kept in their proper position. The second defendant, a firm of contractors, was responsible for the construction of the shuttering and supports for the concrete work and the pouring in of the concrete. The evidence showed that the collapse of the hood was due to the fact that the reinforcing steel, though placed in the correct position by the engineers, had been displaced in the process of concreting; that such displacement would not have occurred during normal concreting operations, but that it was due to the negligence of the foreman of the contractors in failing to exercise proper supervision over the workmen while they concreted the reinforcement. The engineers had taken no precautions to ensure that the reinforcing steel rods remained in their proper position.

Held (DE WET, C.J., dissenting), that under the circumstances the engineers were not entitled to assume that the contractors' foreman would be competent, that they were under a duty to take precautions in order to ensure that the rods were kept in their correct position either by fixing the steel, so as to prevent its becoming displaced, or by supervising the concreting, and that their failure to do so constituted negligence.

Semble: The obligation of personal supervision and of employing a foreman satisfactory to the City Engineer imposed upon, the licensed architect or engineer referred to in by-law 165 of the Durban building by-laws only arises where detailed plans approved and signed by the architect or engineer

1941 AD p432

responsible for the design and execution of the reinforced concrete work have been lodged with the City Engineer in terms of by-law 223.

Where separate actions for damages had been instituted by the widow of a deceased who had been killed owing to the negligence of the defendant and by a curator-ad-litem representing the minor children of the deceased and, upon the hearing of the actions being consolidated for trial, the plaintiffs were separately represented, the Court on appeal refused to interfere with an order is to costs made by the trial. Judge who had refused to disallow the costs occasioned by the separate representation tin the ground that the point was only taken at the end of the trial, but made a special order as to the costs of the separate representation on appeal, inasmuch as notice had been given prior to the hearing of the appeal that a separate representation would be objected to.

In Natal, as elsewhere in the Union, the surviving mother, in the absence of an appointment of tutors, succeeds to the guardianship of minors upon the death of the father, and has the right to represent the minors in legal proceedings.

The case of Ex parte Cumming (1923 NPD 405), disapproved; van Rooyen v Werner (9 S.C. 425), applied.

The decision of the Durban and Coast Local Division in Hosking v Harry Aitken (Pty.) Ltd and Another, reversed in part and in part confirmed.

Case Information

Appeals from a decision of the Durban and Coast Local Division (DE WET, A.J.) in two actions consolidated for the purpose of trial. In the first action the widow of one Hoskins claimed damages arising out of the death of her husband who had died as a result of injuries received owing to the collapse of a cantilever hood on a building. The action was against Harry Aitken (Pty.) Ltd., the contractors, who had erected the building (second respondents in the appeal) and Joffe & Co. Ltd., the engineers who had designed and fixed the steel reinforcement in the concrete construction (the appellant.). In the second action L. J. Bonamour, in his capacity as curator ad litem to the minor children of the deceased, claimed damages against the same defendants. The trial Judge absolved the contractors from the instance in both actions and granted judgment against the engineers in both actions.

Further facts appear from the judgment of CENTLIVRES, J.A.

B. A. Ettlinger for the appellant: On the question of negligence see Transvaal & Rhodesian Estates Ltd. v Golding (1917 AD 18); de Wet v Adams (1935 TPD 247); Naude, N.O. v Transvaal Boot & Shoe Manufacturing Co. (1939 AD 379); Colman v Dunbar (1933 AD 141); Hamilton v Mackinnon (1935 AD 114 at p. 117); Wakelin v London & S.W. Railways (12 A. C. 41); Canter v J. Gardiner Co. Ltd., and Another (1940, 1 A.E.R. 325).

1941 AD p433

Damages should not have been awarded on the basis of an annuity. See Arendse v Maker (1936 T.P.D. 162); Hulley v Cox (1923 AD 234).

As to damages generally see also van Heerden v Bethlehem Town Council (1936 OPD 115); Smart and Others v SA Railways (1928 NPD 361); Laney v Waller (1931 CPD 360).

Where a plaintiff has suffered damages in consequence of separate and independent acts of negligence or tort of two or more persons, he cannot join them in one action under our law. See Solani v SA Railways and Harbours (1931, E.D.L. 79 and authorities cited at p. 80); Ackermann v Pasquali and the Montagu Divisional Council (1913 CPD 296 at p. 298); Muller's Executrix v Small Farms Ltd. (1910 T.P.D. 189 at p. 202); Sadler v G.W. Railway Co. (1896, A.C. 450); McKerron on Delicts (2nd ed., pp. 117-8).

The English law recognises certain exceptions, but, since that law is based largely on the provisions of Rule of Court 16 (4) and 16 (7) and since we have no corresponding rules in our law, the extensive interpretations of the English Courts are not applicable.

The joinder would admittedly have been justified if there had been dolus or a common design. See Walker v Matterson (1936 NPD 495 at p. 501).

The order requiring appellant to pay the costs of the second respondent was wrong as such a form of order is derived from the English practice which in turn is based upon specific Rules of Court, namely Rules 4 and 7 of Order 16. See English Annual Practice (1941 ed., pp. 242 and 248). Such an order is not in accordance with South African practice and the only apparent authority for it is Johnson v SA Railways and Another (1933 NPD 762), in which case the question of costs was not argued and the order made was in fact made by consent. In any event the basis for such an order in England is a finding that all the defendants were reasonably sued jointly or in the alternative by the plaintiffs See Halsbury's Laws of England (Hailsham ed., vol. 26, para. 186, p. 98).

It was contrary to practice and unreasonable for two identical actions to be instituted, one on behalf of deceased's widow and the other on behalf of his children, and for plaintiffs to be separately represented.

The mother is the natural guardian after the father's death. See van Rooyen v Werner (9 S.C. 425 at p. 430), which was A 11

1941 AD p434

followed in The Master v Castellani (1911,. T.P.D. 763). Ex parte Cumming (1923 NPD 405) was wrongly decided. See the dissenting judgment in that case and secs. 54, 71, 76 (1) of Act 24 of 1913.

In any case the mother should have been appointed guardian and one action should have been instituted or a consolidated action with one representative - a practice well established in the Transvaal and the O.F.S.

C. P. Brink, K.C. (with him C. H. Hills), for the first respondent in the first appeal (i.e. for the deceased's wife): Regulation 165 of the Durban Municipal Building By-laws requires the engineer, who prepares plans for reinforced concrete works, to give such work his personal supervision. Failure to supervise constitutes negligence on his part. See Lochgelly Iron & Coal Co. v McMullan (1934, A.C. 1); David v Britannic Merthys Coal Co. (1909, 2 K.B. 164); Good v Posner (1934 OPD 90 at p. 97); Rawles v Barnard (1936 CPD 77) and Bellstedt v SA Railways (1936 CPD 399 at pp. 406-7).

The appointment of a foreman by the contractor did not relieve appellant of its duty to supervise in terms of the by-law. It had no power to delegate this duty to anybody else. See Dukes v Marthinusen (1937 AD 12).

Assuming that there was negligence on the part of the second respondent, appellant's negligence was the effective cause of the accident. See Street's Foundation of Legal Liability (vol. I, pp. 122-3); Halsbury's Laws of England (vol. 23, para. 845); McKerron on Delicts (p. 137); Colman v Dunbar (supra); Berlin v M.B.V. Richter (1929, E.D.L. 59); North-Western Utilities Ltd. v London Guarantee and Accident Co. (1936, A.C. 108); Manchester Corporation v Markland (1936, A.C. 364).

Assuming that appellant and second respondent were both negligent, the onus is on appellant to show that second respondent's negligence was the...