Rens v Coltman

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Joubert JA, Nestadt JA and Scott AJA
• Judgment Date: 28 September 1995
• Citation: 1996 (1) SA 452 (A)
• Hearing Date: 12 September 1995
• Docket Number: 563/94
• Counsel: A J G Lang SC for the appellant P A C Rowan for the respondent

Scott AJA:

The appellant is a quantity surveyor of East London. In February 1989 he was engaged in his professional capacity by the respondent to investigate the cause of an apparent subsidence and consequential cracking of certain walls of the latter's house and to H advise her what work would have to be done to remedy the situation. He was also asked to give an estimate of the cost of such work. After inspecting the house, he wrote to the respondent's attorneys advising that the foundations at the south east corner of the dwelling where the cracks were occurring had not been soundly founded and that there was evidence of I root material beneath the footing. The remedial work that he recommended was, however, minimal and involved simply draining the area and allowing the building to settle before repairing the cracks. At the time, the appellant was aware that the respondent proposed recovering the cost of the remedial work from the builder of the house. Acting on the advice so J given, the respondent settled the claim against the builder

Scott AJA

A and accepted the sum of R3 200 in full and final settlement. The nature of the problem and the extent of the work required to solve it were, however, far greater than the appellant had thought. His advice to the respondent as to the remedial work required was plainly incorrect and his estimate of R3 200 was woefully too low. In due course, the respondent B sued the appellant for damages, founding her claim both in contract and in delict. The appellant admitted that he ought to have conducted a more detailed investigation and that had he done so he would have established that more extensive remedial work was required to remedy the defects at much greater expense. Ultimately, liability on the part of the appellant was admitted and the only questions which remained in issue were the C causal link between the appellant's conduct and the damage suffered by the respondent, and the quantum of the respondent's damages.

In the course of the trial the pleadings were much amended by both sides D and various admissions were made which served to curtail the proceedings. The respondent's claim as finally formulated comprised two parts. The first was a claim for R27 528,42, being the sum of R30 728,42 which would have been recoverable from the builder as at May 1989, less the payment of R3 200 actually received from the builder. The relevance of May 1989 is that this was the month in which the respondent had settled her claim with E the builder. The second leg of the claim was for the additional expense incurred by the respondent in consequence of the incorrect advice and was made up of the cost of the unnecessary work carried out in pursuance of the appellant's advice, the extra cost incurred by reason of the need to accommodate this work when effecting repairs, and the extra cost F occasioned by the delay in effecting the correct remedial work and the consequent increase in building costs. The latter claim amounted to R24 997,55 and included the sum of R3 083,60 which had been paid for the unnecessary work carried out on the advice of the appellant.

The total amount which was ultimately claimed, and, indeed, awarded by the G trial Court (Kroon J sitting in the East London Circuit Local Division), was therefore the sum of R52 525,97 (ie R27 528,42 plus R24 997,55). The amount of R24 997,55 was in reality a residual amount after making certain deductions from the sum of R55 725,97 which, it was ultimately agreed between the parties, was the cost of implementing what was referred to as H the 'KRC' design to remedy the defective foundations of the house as at June 1992. The figure of R55 725,97 included the cost of the additional work occasioned by the previous attempt to remedy the situation as well as the sum of R3 083,60, which, as previously mentioned, had been paid for the unnecessary work. The amount awarded was, therefore, the sum of R55 I 725,97 less the amount of R3 200 paid to the respondent by the builder, ie R52 525,97. The second leg of the claim, ie R24 997,55, was simply the sum of R52 525,97 less the sum of R27 528,42.

It is necessary at this stage to explain the reference to the KRC design. In about August 1989 the respondent engaged the services of a Mr Peter Dowling who is a structural engineer and who carries on business as such J under the name KRC Structural Engineering. After examining the house

Scott AJA

A he designed a method of rectifying the fault which, simply stated, involved propping up the roof and rebuilding the affected walls on foundations supported by bases which were to be soundly founded beneath the unsatisfactory material. The design was somewhat refined by a Mr John Morris who is a consulting engineering technologist and in due course tenders were obtained and the design implemented, save that the contractor B elected to remove the roof rather than prop it up. This was the KRC design.

On behalf of the appellant another structural engineer, Mr Leslie Weaver, was employed to give an opinion regarding the remedial work that would be C necessary to solve the problem. His design was somewhat simpler than the KRC design and would have been less expensive to implement. It was referred to at the trial as the 'Weaver' design.

Returning to the first leg of respondent's claim, it was common cause that in May 1989 appropriate remedial work could have been executed at a cost of R30 728,42 by implementing the Weaver design. The award by the trial D Court of this amount, less the sum of R3 200, was attacked on the ground that it had not been shown that the respondent would have succeeded in recovering such a sum from the builder. Indeed, much of the evidence at the trial was devoted to this issue.

As far as the second leg of the claim is concerned, it was contended on behalf of the appellant that the Court a quo erred in awarding in effect E the cost of executing the remedial work as late as June 1992. In other words, the contention was that the respondent should not have been awarded the full difference between the cost of the remedial work in May 1989 and June 1992 when the work was actually done. The appellant's case...