Pilkington Brothers (SA) (Pty) Ltd v Lillicrap, Wassenaar and Partners
Jurisdiction | South Africa |
Judge | Margo J |
Judgment Date | 02 July 1982 |
Citation | 1983 (2) SA 157 (W) |
Court | Witwatersrand Local Division |
Margo J:
This is an exception by the defendant to the plaintiff's particulars of claim on the ground that they lack averments necessary to sustain an action.
A In the alternative to the exception the defendant applies for the striking out of certain averments in the plaintiff's particulars on the ground that they are irrelevant and that the defendant is thereby prejudiced in the conduct of its defence.
In its amended particulars of claim the plaintiff alleges that, to the B knowledge of the defendant, it (the plaintiff) is a manufacturer of glass which it sells in South Africa and elsewhere; that the defendant, a firm of consulting and structural engineers, held itself out to the plaintiff as having the expert knowledge and professional skill necessary and required for, inter alia, (i) the investigation of all relevant factors, including a sub-soil investigation and an analysis of the results thereof (hereinafter referred to as the "soil C investigation") in relation to the suitability of a site at New Era, Springs, upon which the plaintiff wished to have erected, in conformity with its requirements, a civil engineering and building works for a float glass plant, and (ii) the design and supervision of the construction of such works, having regard to the results of the soil D investigation and the plaintiff's specific requirements for the works; that, in or about July 1974, the parties concluded an agreement (confirmed in writing in June 1975) whereby the defendant accepted an appointment as consulting engineer for the said works and agreed to carry out the soil investigation and, with proper regard to the results thereof, to design and supervise the said works in conformity with the E plaintiff's requirements; that, pursuant to the said appointment and agreement, the defendant purported to carry out a soil investigation, and the defendant (i) advised the plaintiff that the site was suitable for the construction of the works in conformity with the plaintiff's requirements, and (ii) purported to design the said works in conformity F with the results of the said investigation and the plaintiff's requirements; that the defendant knew that the plaintiff would rely upon and intended that it should rely upon such investigation, advice and design, and would act pursuant thereto; that, relying on the said investigation, advice and design, the plaintiff proceeded with the G construction of the works on the site, under the defendant's supervision, and with the installation of the float glass plant; that in March 1976, the plaintiff assigned the said agreement to Salanc Contractors (Pty) Ltd (which company was the main contractor for the construction of the float glass plant as aforesaid), and the defendant agreed to and accepted the assignment, but the defendant was aware that, H despite the assignment, the works were to be carried out for the benefit of the plaintiff as the owner thereof; that, in the premises, the defendant owed the plaintiff a duty of care to carry out properly and with professional skill and care the soil investigation, and, with proper regard to the results thereof, the design and supervision of the construction of the works in conformity with the plaintiff's requirements; that, in breach of the said duty of care, the defendant negligently failed to carry out properly and with the necessary professional skill and care the said investigation and/or design and/or supervision; and that,
Margo J
as a direct result of the defendant's said negligence, the plaintiff has suffered damages in the sum of R3 605 511.
The plaintiff furnished two sets of further particulars to its particulars of claim. Before referring to the relevant excerpts, I should mention that, on the plaintiff's pleadings: (a) in this type of A glass-making plant the levels of the ground, buildings and plant are of great importance to certain elements of the system, including the furnace (see paras 2.1.4 and 2.3.2 of the specification annexed to the plaintiff's second set of further particulars), the bath (see paras 3.1 and 3.2 of the specification), and the lehr, being a type of high temperature furnace used for annealing glass (see para 4 of the B specification); (b) the soil investigation was completed before the assignment of the contract, and both the design and supervision of the construction of the works were commenced before the assignment and were continued thereafter; (c) the assignment was of all the rights and obligations of the plaintiff under the agreement with the defendant, C subject only to the plaintiff's guaranteeing payment by Salanc Contractors (Pty) Ltd.
In the first set of further particulars the plaintiff alleges that the defendant furnished a written soil investigation report on 24 July 1975. It alleges further that the defendant's negligence caused the plaintiff to suffer damages as follows:
because of the defendant's failure to carry out properly the D soil investigation, inter alia, it became necessary for the plaintiff to employ various experts to carry out a proper investigation at a cost of R556 517;
as a result of the defendant's negligence aforesaid, it will further become necessary in the future to carry out further boring and to employ further experts at a cost of R96 800;
E with reference to the furnace, the defendant's negligence necessitated the provision and installation of certain steel work for jacking operations, at a cost of R635 075 for one section and R189 848 for another, and will necessitate future jacking operations at a cost of R214 342;
F with reference to the bath, the defendant's negligence necessitated and will necessitate relevelling operations at a cost of R136 266 and R240 000 and the redesign and reconstruction of portions to facilitate jacking so as to reduce the risk of shutting down production, at a cost of R227 500;
G with reference to the lehr, the defendant's negligence necessitated and will necessitate relevelling operations at a cost of R27 590 and R40 000;
with reference to the warehouse, the defendant's negligence necessitated and will necessitate materials and work for H strengthening, modifying, relevelling and stabilising various portions, at a cost of R454 284, R60 000, R90 000 and R200 000 respectively;
with reference to the stormwater drains, the defendant's negligence necessitated the breaking out and relaying of a certain drain at a cost of R37 403;
additional melting costs and wear and tear were incurred in an amount of R399 922.
Margo J
I am not sure that these figures add up to the total amount now claimed, but any discrepancy in that respect is not material to the present inquiry.
A In the second set of further particulars the plaintiff provides details of the defendant's alleged negligence, viz:
in respect of the soil investigation, the defendant failed -
to carry out the sub-soil investigation and analysis in accordance with accepted practices;
to investigate adequately the geology of the site;
B to determine the ground-water conditions adequately;
to determine the effect of the removal of the existing trees on the site;
to recognise the potential heaving characteristics of the residual ecca rocks;
C to obtain adequate data for analysing the bearing capacity and deformation characteristics of the sub-soils and to assess the likely movement of the works in relation to the criteria specified by the plaintiff;
in respect of the design, the defendant failed -
D to design the works to meet the plaintiff's requirements in regard to movement of the works;
to design foundations to meet the requirements of portal frames with fixed bases in the warehouses, as the defendant itself had recommended;
in respect of the supervision, the defendant failed to recognise and/or advise the plaintiff timeously, or at all, that there E were certain indications of the occurrence of substantial movements, to investigate the cause and magnitude of the movements, and/or to advise the plaintiff that additional work should be done to adjust the plant levels during the construction.
F The particulars of the grounds of the exception, as amended, are as follows:
The plaintiff's claim against the defendant is a delictual claim based on the allegations that it suffered damages as a result of the negligent breach of a duty of care owed by the defendant to the plaintiff.
G The facts averred by the plaintiff, in support of its allegation that the defendant owed the plaintiff the alleged duty of care, do not give rise to such a duty of care, more particularly in the light of -
H the contractual relationship between the plaintiff and the defendant set out in the particulars of claim; and
the assignment of the agreement of June 1975 by the plaintiff to Salanc Contractors (Pty) Ltd.
Alternatively, and in any event, the facts alleged by the plaintiff do not give rise to any claim for damages in respect of pecuniary or financial loss only, as claimed by the plaintiff, more particularly in the light of the circumstances alleged in subparas (b) (i) and (ii) above.
Margo J
Mr Kentridge, for the defendant, raised two main issues. The first was whether, during the period between July 1974 and March 1976 (ie up to the date of the assignment of the contract) the defendant firm, as the consulting engineer, was under a duty of care to the plaintiff which was A co-extensive with its contractual duties, and the breach of which duty rendered it liable to the plaintiff in delict for damages for pure economic loss. If not, the particulars of claim do not disclose a cause of action in respect of any acts or omissions by the defendant prior to the assignment.
The second...
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