Stocks & Stocks (Pty) Ltd v T J Daly & Sons (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Muller JA, Corbett JA, Trengove JA and Hoexter AJA
• Judgment Date: 08 May 1979
• Hearing Date: 01 March 1979
• Court: Appellate Division

Corbett JA:

In the final analysis this case turns on the incidence of the burden of proof. The appellant company (plaintiff below) carries on E business as a building contractor. Respondent company (defendant below) conducts the business of a transport and heavy haulage contractor. On 17 October 1973 and while respondent was transporting a large mobile crane, the property of the appellant, the crane was damaged. Appellant sued the respondent in the Transvaal Provincial Division, claiming damages suffered as a result of the damage to its crane. The action was defended and F respondent counterclaimed for its transportation charges. At the end of the trial the Court ordered absolution from the instance, with costs, on appellant's claim. At the request of the parties the Court did not concern itself with the counterclaim and accordingly I shall make no further reference thereto. Appellant appeals to this Court against the whole of the judgment and order of the Court a quo.

G In view of the importance of the onus in this matter, some attention must be given to the pleadings. In its particulars of claim appellant simply alleged the conclusion of the contract between the parties in terms of which respondent undertook the transportation of the crane, the loading of the crane onto respondent's trailer in terms of the contract, the fact H that while being transported the crane was damaged, and the extent of the damages suffered. The paragraph dealing with the contract (para 3) reads as follows:

"On or about 17 October 1973 the plaintiff and the defendant entered into an oral contract at Pretoria, in terms whereof the defendant undertook to transport an Austin Western 410 Mobile Crane, the property of plaintiff, from Auckland Park, Johannesburg, to the corner of Proes and Bosman Streets, Pretoria. The plaintiff undertook to pay defendant the sum of R289 for the transportation of the crane as aforesaid."

Corbett JA

Respondent requested further particulars. In regard to para 3 of appellant's particulars of claim the following questions, inter alia, were posed:

"(d)

A Was the tariff agreed upon between the parties or impliedly agreed upon between the parties one which excluded any liability on the part of the defendant for damages in transit?

(e)

Was the tariff agreed upon one where the plaintiff was obliged to bear its own insurance for the goods in transit?"

B In its reply, appellant simply stated "No" in answer to each of these questions. Appellant was also asked how and in what manner the crane was damaged and it replied:

"The plaintiff is unaware of the facts and in any event avers that these questions do not relate to plaintiff's cause of action."

C In its plea respondent pleaded to para 3 of appellant's particulars of claim as follows:

(i)

The defendant denies:

(a)

that the tariff agreed upon between the parties or impliedly agreed upon between the parties was not one which excluded any liability on the part of the defendant for damages in transit;

(b)

D that the tariff agreed upon was not one where the plaintiff was obliged to bear its own insurance for the goods in transit;

(c)

that all the material terms and conditions of the agreement are set out in the plaintiff's particulars of claim;

and the defendant puts the plaintiff to the proof thereof.

(ii)

E The defendant states that during about 1950, and at Pretoria, the plaintiff, represented by Messrs H and M Stocks, and the defendant, represented by Mr B Dargan, entered into an oral agreement in terms of which the parties agreed that all goods to be carried, conveyed or transported in the future by the F defendant for and on behalf of the plaintiff would be carried, conveyed or transported at the risk of the plaintiff and the defendant would not be liable for any damage thereto. The defendant states further that in terms of the aforesaid agreement the Austin Western 410 mobile crane was transported at the risk of the plaintiff and the defendant is not liable for any damage thereto.

(iii)

G Save for and subject to the foregoing, all the allegations contained herein are admitted."

Respondent further admitted that the crane was damaged while being transported by it, but otherwise put appellant to the proof of its allegations in this regard, including the particulars as to damage.

H Appellant in turn requested further particulars to the plea. In regard to the alleged agreement in 1950 (I shall call this "the 1950 agreement") the following question was put:

"With reference to the averment that the goods would be carried by defendant at plaintiff's risk, defendant is requested to state whether or not defendant would be liable for:

(i)

intentional damage to plaintiff's goods so carried;

(ii)

negligent damage to plaintiff's goods so carried;

(iii)

acts of God."

Corbett JA

In reply thereto respondent stated:

"The defendant would be liable for intentional damage but not for negligent damage or acts of God."

A Appellant also asked:

"What, according to defendant, caused the damage to the plaintiff's goods?"

To this came the reply:

"The plaintiff is not entitled to these particulars for the purposes of pleading and they are refused".

B Appellant filed a replication in which it merely danied the conclusion of an agreement partially excluding respondent's legal liability as carrier as alleged or at all.

C The pre-trial conference did not materially advance the settlement of the issues between the parties, but, at the commencement of the trial, it was announced that the parties had agreed upon the quantum of appellant's damages and had fixed this in the sum of R4 500.

The matter consequently went to trial on the principal remaining issue, viz whether by reason of the alleged 1950 agreement the crane had been D transported at the risk of the appellant and the respondent was not liable for the damage thereto. It appears to have been accepted by the appellant at all times (including in argument before this Court) that what I shall call "the owner's risk provision" in the 1950 agreement would, if established and if shown to be applicable to the contract of E transportation in issue, constitute a complete defence to appellant's claim. This attitude was presumably based on the view that the owner's risk provision excluded liability for damage to the crane caused by the negligence of respondent or its servants, that the onus of establishing any other possible ground of liability, such as gross negligence or dolus, rested upon appellant and that appellant was not in a position to F establish such a case against respondent (cf Essa v Divaris 1947 (1) SA 753 (A) at 767 - 9, 773, 774 - 5; King's Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) at 642F - 643B). Prima facie this would appear to be the correct view, but as these points were not canvassed I refrain from expressing any positive opinion thereon.

G At the trial respondent began and called as its main witness Mr B S Dargan, respondent's managing director. Dargan deposed, inter alia, to the conclusion of the 1950 agreement between himself, acting on behalf of respondent, and Messrs Hugh Stocks and R B (Mike) Stocks, acting on behalf of the appellant. The only other witness called by respondent was its attorney, Mr P J Botbijl, who dealt with certain subsidiary issues. H Appellant, on the other hand, called only Mr E van Heerden, appellant's chief buyer. He was unable to throw much light on the central issue, viz the conclusion of the 1950 agreement. The two persons who were alleged to have acted on appellant's behalf in the conclusion of the agreement had both died before the trial (Mike Stocks in 1962 and Hugh Stocks in 1975) and their evidence was, therefore, not available.

The trial Judge (MOLL J) accepted that in view of the death of the other two parties to the alleged agreement in 1950 it was necessary to scrutinise with caution the evidence given by Dargan. In the course of his judgment he referred to a number of criticisms which might be levelled at Dargan's

Corbett JA

evidence (I shall refer to these in more detail later), but in regard to Dargan's general credibility stated the following:

"My impression of Dargan was, however, that although he appeared to be somewhat confused in answers given particularly in cross-examination, A and lacking to some extent in perception, he was certainly not a dishonest witness. Whatever difficulty I might have in regard to his reliability I did not doubt his bona fides."

Having considered these criticisms of Dargan's evidence, his impression of B Dargan as a witness, the probabilities and the evidence as a whole, the learned Judge concluded that he was unable to make a positive finding with reference to the terms of the alleged...