Wilson v Birt (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Harcourt J
• Judgment Date: 18 March 1963
• Court: Durban and Coast Local Division

A Harcourt, J.:

In this action the plaintiff, a coloured male, sues the defendant for damages arising out of injuries received by the plaintiff on the 26th January, 1959. The plaintiff sues in forma pauperis and the defendant appears also to be in straitened circumstances since it is a company in liquidation having been placed in compulsory liquidation on B the 18th December, 1959, after a period of judicial management.

In the pleadings plaintiff claims judgment for R15,029.30, alleging that he suffered certain injuries as a result of a pole falling on to him, which occurrence is alleged to have been the result of the negligence of C the defendant and/or its servants acting within the scope and course of their employment with the defendant. The particulars of negligence are as follows:

(a)

The defendant and/or its servants, acting as aforesaid, failed to take any or any adequate precautions to prevent the said pole from falling onto the plaintiff and striking him.

(b)

D Alternatively to the allegations in para. (a), the said pole was thrown by a servant of the defendant, acting as aforesaid, at a time and place and in a manner which was unsafe.

(c)

The defendant and/or its servants, acting as aforesaid, failed adequately or at all to supervise the dismantling of the said scaffolding which adjoined the said building.

(d)

E The defendant and/or its servants, acting as alleged, failed to warn persons walking underneath the said scaffolding or below the said scaffolding in the vicinity of it, of the fact that the said scaffolding was being dismantled, and of the dangers inherent in the said dismantling operation.

F The defendant denied liability in its plea and also, in the alternative, pleaded that the damages were caused partly by the fault of the plaintiff and that such damages fall to be apportioned in terms of sec. 1 (1) (a) of Act 34 of 1956. The allegations of negligence made against the plaintiff are that he failed to keep a proper look-out and, secondly that, he walked under a scaffolding - which will be G mentioned later in this judgment - when he knew or should reasonably have known that the scaffolding was being dismantled and that it would be dangerous for him to walk there by reason of the fact that portions of the scaffolding were being dropped to the ground. The plaintiff, in his replication, denied having been negligent as alleged, or at all, and H denied further than the damages which he suffered were caused partly by his own fault and, accordingly, denied that such damages fell to be apportioned in terms of the above-mentioned section of Act 34 of 1956.

The plaintiff was, at the time in question, an employee of a firm of painters known as the Renown Quality Painters which was a sub-contractor in regard to the erection of a building which was in the course of construction by the defendant on the 26th January, 1959. This building, which when it was finished became known as the Wilcox Railway

Harcourt J

Hostel at Montclair, was a very large building intended as a hostel for railway workers and contained some 600 bedrooms which made it the largest hostel of this kind in South Africa. At the time one Dermot A O'Reilly was the general foreman of the defendant company in charge of the erection of the hostel. There was another Mr. O'Reilly who also occupied a position of responsibility in the defendant company.

It became uncontested common cause during the hearing that, on the day in question, the plaintiff was struck by a pole which had previously formed part of the scaffolding at one end of a portion of the building B which I shall describe as the gable end. The scaffolding was in the process of being dismantled and the poles which formed portion of it were being loosend from their position and were being dropped down onto the ground near the scaffolding. So far as is relevant, the poles were of two varieties namely, ledgers and pudglocks. The ledgers were C variously estimated in regard to length as being between 16 feet and 30 feet and formed portion of the scaffolding running parallel to the wall. These ledgers were supported by shorter poles known as pudglocks which vary in length between 6 feet and 8 feet and which are inserted in holes left for them in the wall during its construction and they protrude at right angles from the wall. In a completed scaffold there are two planks D each 9 inches wide which are laid on top of the ledgers and form the platform upon which workmen stand when working upon the wall.

The manner in which the plaintiff was injured is in dispute. The versions given by the witnesses for the plaintiff and those for the defendant are in irreconcilable conflict.

E (The learned Judge then dealt with the evidence of witnesses Daniels, for the plaintiff, and du Preez, for the defendant, and proceeded).

In the result I find that the version given by du Preez is to be accepted in preference to that given by Daniels and is worthy of acceptance. I accept it and I shall consider the responsibility of the defendant company on this basis.

F Mr. Pretorius contended that there was no evidence of negligence quo ad the plaintiff in so far as du Preez was entitled to assume that nobody would emerge from the door in question because of the crossed planks indicating danger in such a manoeuvre. Emphasising the remarks of G VAN DEN HEEVER, J.A., in the case of Herschel v Mrupe, 1954 (3) SA 464 (AD) at p. 490, he contended that there was no obligation upon du Preez to be a timorous faint heart and that he was entitled to take reasonable chances in the manner in which he dismantled the scaffold. It is true that in arriving at the degree of care to be expected of a bonus H pater familias one must avoid requiring people to be over careful but, equally one must avoid granting them a licence to be unduly careless. The difficulties of steering a middle course in this regard are expressed so well by VAN DEN HEEVER, J.A., in the passage just cited and by LORD MACMILLAN in Glasgow Corporation v Muir, 1943 A.C. 448 at p. 457, where he mentioned that some persons are by nature unduly timorous and imagine every path beset with lions and compares them with others, of more robust temperament, who fail to foresee or nonchalantly disregard even the most obvious dangers, that it is unnecessary to repeat them. It is clear, however,

Harcourt J

that the question of a duty of care is a question of fact dependent upon the variables of the seriousness of possible harm and the chances of its happening. As was said by SCHREINER, J.A., in Herschel's case, supra at p. 477:

A 'But the circumstances may be such that a reasonable man would foresee the possibility of harm but would nevertheless consider that the slightness of the chance that the risk would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part. Apart from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the seriousness of the harm and the chances of its happening. If the harm would probably be serious if it happened the reasonable man would guard against it unless the chances of its happening were very slight. If, on the other hand, B the harm, if it happened, would probably be trivial the reasonable man might not guard against it even if the chances of its happening were fair or substantial. An extensive gradation from remote possibility to near certainty and from insignificant inconvenience to deadly harm can, by way of illustration, be envisaged in relation to uneven patches and excavations in or near ways used by other persons.'

It is also well established that where a person is engaged in an C intrinsically dangerous pursuit a higher standard of diligence can be required of him than from one engaged in a less dangerous pursuit, see Durban City Council v South African Board Mills Ltd., 1961 (3) SA 397 (AD) at p. 405.

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