Peri-Urban Areas Health Board v Munarin

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Beyers JA, Van Blerk JA, Ogilvie Thompson JA, Holmes JA and Wessels JA
• Judgment Date: 24 May 1965
• Citation: 1965 (3) SA 367 (A)
• Hearing Date: 10 May 1965

F Holmes, J.A.:

The appellant Health Board, which will be referred to hereinafter as the Board, appeals against a decision of BOSHOFF, J., G sitting in the Witwatersrand Local Division, awarding damages to the respondent in the sum of R6,254 for the death of her husband.

The factual background is as follows:

1.

The Board is a corporate body by virtue of the provisions of sec. 3 of the Peri-Urban Areas Health Ordinance, 20 of 1943, as amended. In H terms of sec. 15 its functions include the management, regulation, and control of matters affecting public health in its area of jurisdiction, and the establishment, management, and control of certain local works or undertakings under the Ordinance. It has power to enter into contracts for the purpose of any works which it is itself empowered to undertake or carry out.

2. (a)

On 21 September, 1962, the Board entered into a contract

Holmes JA

with a company (hereinafter referred to as the contractor) to construct sewers in certain areas, in accordance with the conditions of the contract and the specifications, drawings, bill of quantities, and schedule of rates.

(b)

A The contract covered the construction and maintenance of the works, and the provision of all necessary labour, materials, plant and temporary works. The contractor undertook to complete the work in strict accordance with the contract and to the satisfaction of the Board's B engineer, and to comply with the latter's instructions and directions on any matter.

(c)

The contractor was further required to provide all necessary superintendence during the execution of the works. He or an approved C representative was to be constantly on the works and to give his whole time to the superintendence. He was also required by the contract to take every practicable precaution not to damage or injure any adjoining or other properties or any persons.

(d)

The Board's sewerage engineer has designed and planned the project. D In terms of the contract the Board's engineer was to be in charge of the works, with power to give instructions regarding its performance, to insist on the dismissal of incompetent workmen, and in his discretion to suspend the works. His representative on the site was the Board's clerk E of works, whose duty it was, inter alia, to watch and supervise the work.

3.

The contract work was commenced in September, 1962, and it involved trenching and laying pipes over a distance of 77,000 ft. The particular section which is relevant to this case was started on 17 December, 1962. F It was to extend from manhole 226 to manhole 227. This involved the digging, by means of a mechanical shovel, of a trench 241 ft. long, from the one manhole to the other. It was to be nearly 3 ft. wide, and of a depth which varied from 7 ft. to 14 ft. according to the slope of the ground. The trench was to run alongside and about 6ft. from an existing G brick wall for 155 ft. The wall was 9 in. thick, and the height varied from 13 ft. to 16 ft. The wall was the property of a third party.

4.

It is common cause that the proximity of the wall to the trench was a potential danger because of the pressure which it exerted, and that it H was necessary for steps to be taken to prevent the trench from falling in. The accepted practice is to do this by a system of shoring. This is done with timber boards of appropriate size placed upright against the sides of the trench and cross-braced or strutted by timber wedged in between the boards. There are also adjustable metal props referred to as acrow-props. Where thin shoring boards are used, shoring should be at intervals of at least 5 ft. in order to compensate sufficiently for the loss of lateral support.

Holmes JA

5.

Nevertheless, no shoring was done in respect of the section of the trench relevant to this case.

6.

In the early afternoon of 19 December, 1962, the Board's engineer was at the site. He found that the trench had been excavated alongside the A wall for a distance of 40 ft. without any shoring having been done. Nor was there any timber at the site. The evidence of expert witnesses was that this should have caused him alarm. But he was in a hurry to go to...