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LL Case No 230/1989
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
THE MINISTER OF COMMUNITY DEVELOPMENT First
Appellant
O'CONNELL, MANTHE & PARTNERS
INCORPORATED Second Appellant
and
HERMAN RICHARD KOCH Respondent
CORAM: JOUBERT, VIVIER, MILNE, EKSTEEN JJA
et KRIEGLER AJA
HEARD: 3 MAY 1991
DELIVERED: 30 MAY 1991
JUDGMENT KRIEGLER AJA:
2. This appeal concerns damages for wrongful
interference with access to urban land. The first appellant, acting under powers
vested
in him by the Community Development Act No 3 of 1966, decided upon an
urban renewal scheme involving a part of Grahamstown. He appointed
the second
appellant to act as consulting engineers for the "design, documentation and
supervision of services" for phase 1 of the
renewal scheme, the construction of
roads and services in the redevelopment area ("the area"). In January 1983 the
relevant construction
contract was put out to tender and in April 1983 the
contract was awarded to Moore & Woodbridge (Proprietary) Limited ("the
contractor").
Respondent owned a stand in the area on which he carried on
business as a manufacturer and seller of pottery. The major portion of
his
income was derived from the sale of pottery despatched to retailers elsewhere
but he also sold products by retail over the counter.
3.
On 5 May 1983 the contractor formally took occupation of the
area. The contract entailed rebuild-ing a number of existing streets
in the
western part, building three new streets further towards the east and attending
to the reticulation of water, sewerage and
storm water drainage for the whole of
the area. The Grahamstown municipality was responsible for the installation of a
new trunk
water main and a new electricity network in the area while the
Department of Posts and Telecommunications was to instal its services.
By March
of 1984 the reconstruction work had been substantially completed.
In July
1984 the respondent instituted action in the Eastern Cape Division of the
Supreme Court, claiming damages allegedly suffered
by him during the
construction work, i e from May 1983 to March 1984. His cause of action was that
there had been an unreasonable
and negligent interference with access to his
business premises in consequence of which he had
4. suffered a loss in
turnover. His principal complaint was levelled at the contractor, which he cited
as the second defendant, for
having "completely cut off or so severely
obstructed or hindered access to the" respondent's business premises that the
latter's
"potential customers were unable to gain access to the property and/or
were deterred from attempting to gain access to the property."
It is not
necessary to detail the grounds of negligence alleged as against the contractor.
In principle they entailed two complaints:
first that reasonable access to the
respondent's business premises had not been maintained and, secondly, that there
had been no
adequate signposting indicating to potential customers how
respondent's business could be reached.
Respondent's second main complaint was levelled at the second appellant,
which he cited as the third defendant. As against it the
respondent ascribed the
impaired access to his premises to a number of
5. negligent omissions.
Although seven of these are set out in the particulars of claim, it will suffice
for present purposes to say
that the complaint against the second appellant was
that it had failed in its design of the scheme and in its supervision of the
execution thereof by the contractor to ensure that reasonable access to the
respondent's property was maintained. As in the case
of the contractor the
complaints related to both the untrafficable condition of roads and the absence
of signposts indicating those
which were passable from time to time.
The
first appellant, the first defendant in the court a quo, was sought to be
held vicariously liable for the negligence of his servants (a) in failing to
ensure that the redevelopment scheme
provided for reasonable access to the
respondent's property and (b) in failing to ensure that the second appellant
performed its
design and supervisory functions properly, the appellant having
retained
6. overall control of the scheme. In addition the first appellant's
servants were faulted for faiiing themselves to take adequate
steps to ensure
that reasonable access to the respondent's property was maintained.
In
February 1985 a plea was filed on behalf of both appellants jointly. (The
contractor, which had in the interim gone into liquidation,
took no part in the
proceedings.) The appellants admitted that the second appellant "was responsible
for the general administration
and other services in connection with the
carrying out of the necessary works, including issuing instructions to
contractors, co-ordinating
and generally inspecting the execution of the works
for compliance with the contract f rom time to time and directing site staff,
but excluding detailed and day to day inspection of the wcrks and site
administration." They further admitted that the contractor
"in the process of
implementing the said scheme ... to a degree
7. obstructed access to the said
property" but denied any
improper or unnecessary interference with such
access. They further denied that the contractor had "so severely obstructed or
hindered
access to the said property that (respondent's) potential customers
were unable to gain access thereto and/or were deterred from
attempting to gain
access thereto." The plea specifically averred (a) that adequate signboards
indicating access routes were erected
where necessary,
(b) that the scheme was programmed and scheduled to afford reasonable access to respondent's property and (c) that such access was allowed at all reasonable times. Consequentially the appellants denied that they or any of their servants had been negligent in the respects alleged or at all. In addition they put in issue the respondent's alleged damages and denied any causal link between such damages and the negligence ascribed to them or their servants.
In due course a protracted and intermittent
8. trial ensued. The learned trial judge ultimately granted judgment in
favour of the respondent against the appellants and the contractor
jointly and
severally for damages in the sum of R7 329 and against second appellant and the
contractor jointly and severally for
damages in the sum of R3 020. Concomitant
orders for interest on the awards and for costs were made in favour of the
respondent.
The awards relating to the appellants form the subject matter of
this appeal.
Before turning to deal with the facts in more detail, a
prefatory observation should be made concern-ing the broad contextual scene
in
which the facts are to be evaluated. The urban renewal scheme involved an area
comprising approximately a dozen city blocks in
which a number of buildings had
remained occupied. One of the occupants was the respondent. For many years he
had conducted his business
from premises roughly in the heart of the area. He
and others like him were not expropriated or otherwise removed but were allowed
to
9.
remain in lawful occupation of their respective
properties. Clearly such right of occupation entailed
the right to reasonable use of their property. Such
user, in turn and
equally clearly, included the right
of reasonable access and egress. But the
very nature
and scope of the redevelopment scheme boded ill for
the
continued and uninterrupted enjoyment of such right.
The appellants
and the contractor were aware of the
risks and made elaborate provision with regard thereto
in the contract
documents. Thus clause 30 of the
General Conditions of Contract provided:
"INTERFERENCE WITH TRAFFIC.
All operations ... shall ... be carried on so as not to interfere unnecessarily or improperly with the public convenience, or the access to, use and occupation of public or private roads ... The Contractor shall at all times wherever possible keep open and maintain at his own expense all existing roads ... which may be affected by his operations ... and he shall construct and maintain ... all temporary roads, deviations, tracks and drifts which may be required ..."
Furthermore Portion 1 of the Project Specification
10.
inter alia specified as follows:
"It should be noted that some of the existing buildings will remain inhabited, and services to these must be maintained. Disruption due to switchover must be kept to an absolute minimum ..."
Under the heading "Accommodation of Traffic" clause 5.5
of the Specification contained the following provision:
"The Contractor shall allow access to existing buildings which are occupied, at all times where practicably possible. Occupants must be warned timeously of any disruption of access which may become necessary in order to proceed with the construction to the required standards ...
No particular payment will be made for these items, and the contractor must allow in his rates for these requirements."
However,
when the respondent addressed letters to each
of the appellants and to the
contractor during August
1983 complaining of harm being done to his business by
disrupted access,
the responses he received manifested
little insight into his plight. The contractor's atti-
tude was:
"We feel that you should take up this matter with the Department of Community Development
11.
as the principal agent."
Unhelpful though it was, the contractor's reply at
least had the merit of promptness. The same cannot be
said for the first
appellant's reaction. Nearly two
and a half months after respondent's complaint the
department's Port
Elizabeth regional representative
replied as follows:
"1. The Consulting Engineers advised that the contractor has generally allowed access to your property except when heavy rains or trenching and pipe-laying have entailed temporary closure of roads.
2. This department cannot accept liability for any alledged (sic) loss of business due to the construction activities on the Urban Renewal Scheme."
Ex facie the letter the department
made no independent
enquiry but was content to ,rely on information
obtained
from the second appellant in refuting respondent's
factual allegations and in repudiating his claim. The
second appellant's reply (dated five weeks after the
respondent's letter
of complaint to it) did not seek to
refute the factual basis of the respondent's complaint:
12.
"The Department of Community Development does not accept any liability for any alleged loss of business due to construction activities on the Urban Renewal Scheme. However, we have instructed the Contractor, M & W Cohstruction, to ensure that adequate access isprovided at all reasonable times and also to erect signs to direct traffic to your business. ..."
The
leisurely - if not dilatory - response by the
appellants to a trader's plea
for urgent relief and the
ostensible lack of concern for his plight
are
remarkable. More significantly though, neither
appellant nor the
contractor seemed to appreciate that
the respondent was legally entitled to
demand from them
that they take all reasonable steps for the
maintenance
of access to and egréss from his premises at
all
reasonable times. Accepting, as I think one must, that
the exercise of
the statútory powers conferred by the
Community Development Act No 3
of 1966 justified
interference with private rights, a negligent exercise
of such powers was
not authorised by the statute. (See
e g Johannesburg Municipality v
African Realty Trust
13. Limited 1927 AD 163;
Bloemfontein Town Council v Richter 1938 AD 195 and Germiston City
Council v Chubb & Sons Lock and Safe Company S.A. Limited 1957 (1) SA
312 (A).) The letters by both appellants and by the contractor do not reveal
that they were alert to such limitation
on their powers of interference with the
respondent's rights. Indeed the evidence, to which I shall turn shortlý,
confirms
that, notwithstanding the legal limitation upon their powers and
notwithstanding the explicit terms of the cohtract, little if anything
was done
by the appeilants to ensure that the contractor remained within the bounds of
the law.
On the pleadings there were two main issues at the trial, namely,
the causal negligence of each of the defendants ahd thê question
of
damages. With regard to the issúë of negiigence first appellant's
liability gave rise to an important subsidiary issue.
That was whether first
appellant could be held liable for any damages suffered by the respondent in the
light
14. thereof that he had engaged both an independent contractor to
perform the work and an expert to prepare the design and to supervise
the
execution thereof. Although the latter issue was not sguarely raised on the
pleadings it was cahvassed in argument in the court
a quo, dealt with in the
judgment and argued afresh on appeal.
On the issue of negligence a great deal
of oral and documentary evidence was adduced. Much of the material was common
cause. The nature
of the area and the scope and duration of the construction
work were not in issue; nor indeed was the existence of a pro-longed period
of
ihtefference with the road or roads connecting respondent's business premises
with the out-side world. With regard to the specific
nature, extent and duration
of such interference there was a sharp division on the evidence however. The
respondent's case that access
to his premises was either completely or
effectively cut off throughout the contract period
15.
rested on his own evidence, supported by a series of contemporaneous photographs. In addition there was testimony by two other occupants of premises in the development area during the period in question and by two visitors during that time. The appellant's case was founded mainly on the evidence of Mr G C Ross, a civil engineer employed by second appellant and who was responsible for the design of phase 1 of the project and supervision of the execution thereof. He testified during the latter half of August 1988, i e some f ive years after the events, and relied heavily on the minutes of the site meetings held during the construction period. The appellant's other witness, Mr F R Whltihgý who was the contractor' s site agent from the commencement bf the contract period to the end of January 1984, and who testlfied immediately after Mr Ross, was likewise dependent upon the site minutes. In substance their evidence was that, save for some brief intervals of disruption due to unavoidable
16.
construction work, reasonable vehicular and pedestrian access to respondent's
business premises was maintained at all times.
The court a quo, in a
carefully reasoned judgment, resolved the factual issue relating to access in
favour of the respondent. There is no reason
to differ, the argument by counsel
on behalf of the appellants notwithstahding. According to Ross reasonable access
was maintained
in three different ways during three distinct stages of the
contract works.. During the fiirst stage, from the commencement of the
work to
early Júly 1983, the existing tarred streets were left subsbantially
undisturbed. Although trenching operations were
in progress along the edges of
the streets and ah bccasional ditch across a street may have temporarilý
impeded free passage,
the existing system of roadways áffording access to
respondent's premises from the north, the south and the west remained
reasonably
trafficable. Then, according to
17. Ross, from early July to mid-October 1983
the existing roads were rebuilt: The tar was ripped up, the underlying subcourse
was
dug out to a predetermined depth (a process called "box-cutting") and a new
subcourse was laid. In the meantime the contractor had
been unable to progress
at the anticipated rate with the construction of the new streets in the eastern
part of the development area.
Nevertheless, so Ross contended, respondent was
not entirely isolated. A special access track leading from virtually his front
door
across vácaht land and linking up with a trafficable street to the
west was established and maintained. During the third stage,
from mid-October to
the completion of the road building in March 1984, the rebuilt streets had hot
yet been tarred but, so Ross woúld
have it, their compacted gravêl
surfaces were readily trafficable ánd afforded free access to
respondent's premises
from the north and the west.
Although Whiting's evidence lends some
18.
support to Ross' version, the trial court's finding to the contrary is unassailable. With regard to the first stage identified by Ross thefe was cogent testimony that the surface of the existing tarred streets had been ripped up much earlier than the first week of July 1983. Respondent's evidence, supported by a number of contemporaneous photographs; was that the ripping of the tar had taken place in May 1983. He added that there had been no forewarning and that several streets were involved. Mrs A A Andrews, who had lived round the corner from respondent's premises for many years and who remainéd in occupation during the construction work, fully corroborated respdondent's version as to the date of commencement of the thé ripping of the streets, the lack of forewafhihg ánd the contemporaneous involvement of several streets. She furnished convincing reasons for fixing the commencement of the operation at well before the end of May 1983. Similar evidence was given by Mf F J van der Merwe, the manager
19.
of a panel-beating business a block to the south west of respondent's premises. He, like the respondent, encountered an immediate faii off in business during May 1983 due to the deprivation of access to his business. He tendered to produce his books of account in support but the cross-examiner did not take up the challenge. Respondent álso adduced the evidence of a regular customer of his business, Mrs E A K Bennyon. Although she was unable to put a date to the commence-ment of the work, she vividly described the difficul-ties she encountefed over a protracted period in gaihing access to respondent's premises in order to obtain potter's requisites which she needed for her own business. Not only were the, roads generally impassable but such access routes ás could be found by trial and error proved transitory. On occasion she had to abandon her Volkswagen beetle motor car and negotiate the rest of the journey to fespondent's premises on foot. Evidence to like effect was given by Mr J R
20.
Daniels, a motor car salesman who had business with respondent and his family
during July 1983.
The evidence of Ross and Whiting regarding the first stage
from May to early July 1983 was vague and unconvincing. Moreover the site
minutes on which they relied offered little, if any, support for their version
that the carriageways of the existing roads remained
substantially undisturbed
until the ripping and box-cutting operation commenced in July 1983. (It was
common cause that heavý
and expensive equipment was brought onto site by
the contractor for such operations.)
Respondent's evidence was that he
remonstrated with Whiting in May 1983 when the streets affording access to his
business were suddenly
ripped up. According to the rêspondent Whiting's
reaction was that the contractor could not afford to allow the expensive
eqúipment
to stand idle. That evidence was neither challenged nor refuted
and accords with the
21 .
probabilities. There was therefore a sound basis on the eye-witness evidehce
for concluding that the street-ripping stage of the construction
commenced in
May 1983.
Telling support for such conclusion is to be found in the financial
data furnished by the respondent. In response to a request for
further
particulars the respondent produced a detailed schedule reflecting his
monthlý sales from March 1980 to February 1985.
At the trial he dealt
with the schedule in detail. The genuineness of the figures reflected in the
schedule and their substantial
accuracy were not challenged. It is evident from
the schedule that respondent's cash sales, which he conducted from his premises
in Kowie Street, suffëred a marked fall off in May 1983. During the
immediately preceding two months respondent had achieved
cash sales of R1 070
and R1 088 respectively whereas ih May and June 1983 his cash sales were only
R337 and R213 respectively. Comparison
22.
of the cash sales for May and June 1983 with the sales in the corresponding
months of the preceding three years refutes any suggestion
that the reduction
could have been due to seasonal fluctuations. Moreover comparison of the cash
sales, which were dependent upon
access to the business premises, with invoiced
sales (which were not so dependent) equally strongly indicates that some major
externál
force supervened in May 1983. The only possible agency suggested
by the evidence is that impeded access prevented or discouraged
cash customers
from visiting respondent's premises. The evidence of Ross and Whiting that
access was only impeded as from July 1983
therefore cannot be true.
There are
several compelling reasons why Ross' evidence regarding reasonable access to
respondent's prémises via a temporary
track during the second stage must
likewise be rejected: (a) None of the other withesses supported his version;
(b)
23.
respondent was cross-examined by the advocate at that stage representing the
appellants along the lines that no such track had ever
existéd and for
various reasons could not have been constructed or maintained; (c) the site
minutes reflect nothing to suggest
that such a track was planned, constructed or
maintained; (d) the photographs of the area taken during the second stage, far
from
suggesting such an access road, are reminiscent of Flanders fieids; (e)
respondent's cash sales figures for the period up to October
1983 do not
indicate any marked pick-up consistent with a restóration of reasonable
access. The evidence therefore established
that during the second phase, too,
there was gross ihterference with access to the respondent's busihess
premises.
The same miist be concluded with regard to the third stage during
which; according to Ross, there was free access alohg readily trafficable
gravel
streets. Quite apart from the fact thát the evidence of the
24.
three occupants of the area and of Mrs Bennyon was to the contrary, the photographic evidence is wellnigh conclusive. Several photographs, some taken as late as January 1984, reveal that although there may have been some trafficable gravel roads in existence in the area, vehicular access from the surrounding streets of Grahamstown to the gravel roads was cut off by kerbstones, ditches, heaps of rubbleor rows of oil drums. Ross, whên confronted with the photographic evidence, lamely sought to suggest that determined motorists could have ávoidéd the initial obstacles and used the gravel streets. The suggestion was not only unconvincing but really afforded no answer to the respondent's complaint. Reasonable access, especially to business premises, does not mean a route which the determined, hardy and adventurous may be able to devise and traverse. The trial court's finding that access to the respondent's premisés wás materially impeded throughout the construction period was therefore fully
25.
warranted.
Nor can the learned trial judge's conclusion
that the contractor was liable to the respondent for Aquilian damages be
doubted. An
occupant of urban premises may be obliged at times to suffer some
interference with his full enjoyment of such property. in consequence
of lawful
private or public demolition or construction work in the vicinity (as to which
see Liss Shoe Co (Pty) Ltd v Moffett Building and Contractinq (Pty) Ltd
1952 (3) SA 484 (O) at 488B-H). And in a case such as this, where the premises
are situate in a redevelopment area where extensive
demolition, road building
and relocation of essential services have to be conducted, substantial and
protracted interfefëhce
may be lawful and will have to be endured. But in
order to remain within the bounds of lawfulness the extent and duration of such
interference would have to be reasonable. The contractor's opefatíons in
the instant case, in so far
26.
as they impinged upon the respondent's rights, clearly transgressed the
bouhds of reasonableness. The continued survival of the respondent's
business as
a manufacturer and seller of pottery and as a commercial stockist of potter's
requisites was dependent upon reasonable
accessibllity of the premises to the
outside world. That the contractor knew or ought to have known. It was moreover
pertinently
drawn to the contractor's attention in the contract documents quoted
above. In the circumstances prolonged and material interference
with reasonable
access to the respondent's business premises was Unlawful.
Damage to the
respondent's business as a result of such interference was not only objectively
foreseeable and underscored in the contract
documents but was expressly drawn to
Whiting's attention by the respondent shortly after the commencement of the
operations. It was
common cause that reasonable steps to avoid - or at least to
minimise - such damage were
27.
available to the contractor. Indeed the very evidence of Ross that such steps
were taken, although rejected as untrue, furnishes informed
information as to
what could and should have been done. In the event nothing of consequence was
done, either initially or thereafter.
On the contrary, even the elementary step
of erecting and appropriately moving signboards indicating the available route
or routes
to respondent's premises, when belatedly taken was ineffectually
executed. Aquilian liability on the part of the contractor was clearly
established.
However, the main thrust of the argument cm behalf of the
appellants was that, irrespective of any liability which may háve
been
established on the part of the contractor, their liability had not been
established. In respect of the period from May 1983
to the end of August 1983
the learned judge exonerated the first appellant on the basis that,
notwithstanding the potentiality of
harm to occupants carrying on business
28.
in the area inherent in phase 1 of the scheme, first appellant had been entitled to rely on the contractor and the second appellant, both experts in the particular field, to act reasonably on his behalf. Inasmuch as such exoneration is not challenged on appeal, no more need be said than that it accords with the principles enunciated in Langley Fox Building Partnership (Proprietary) Limited v De Valence 1991 (1) SA 1 (A),to which case reference will be made more fully later. The trial court found that both first appellant's servánts ahd Ross, qua servant of the second appellant; had been negligent. With regard to the first appellánt the court held that, although the departmental officials may initially have been entitled to rely on the experts, once respondent's letter of complaint to first appellant had been received in August 1983, alerting them to the continuing interference with respondeht's rights, they were under a duty to act. Cohsequentiý their inaction thereafter
29.
rendered first appellant liable to respondent for the damages he sustained
thereafter. Ross' failure throughout the construction period
to cause the
contractor to take any effective steps to afford reasonable access to
respondent's premises founded the trial court's
conclusion that the second
appellant was liable for the damages sustained during the construction work. In
the result the first appellant
was held liable jointly and severally with the
second appellant and the contractor for the damages sustained by the respondent
from
September 1983 to March 1984. Second appellant's liability was found to
extend to the whole of the period.
Little need be said about the finding of
liability on the part of the first appellant for the period from September 1983
onwards.
In Langley Fox
Building Partnership (Proprietary)
Limited v, De
Valence, supra, Goldstone AJA, who
delivered the majority judgment, reviewed a number of the authorities
30.
relied upon by the j udge a guo in the present case
(Dukes v Marthinusen 1937 AD 12, Crawhall v Minister
of
Transport and Another 1963 (3) SA 614 (T);
Peri-Urban
Areas Health Board v Munarin 1965 (3) SA 367 (A)
and
Rhodes Fruit Farms Limited and Others v Cape Town
City
Council 1968 (3) SA 514 (C). At p 13B the learned
judge
concluded as follows:
"It follows from the aforegoing that the existence of a duty upon an employer of an independent contractor to take steps to prevent harm to members of the public will depend ih each case upon the facts. It would be relevant to consider the nature of the danger; the context in which the danger may arise; the degree of expertise available to the employer and the independent contractor respectively; and the means available to the employër to avert the danger. This list is in no way intended to be comprehensive."
In the
dissenting judgment Botha JA, with whom Eksteen
JA concurred, differed from
the majority on the facts;
with regard to thé law however he
subscribed to the
majority view and át p 17F-G made the following
observation which is directly applicable to the instant
31 .
case:
"In my view, when the liability of an employer for the consequences of the negligent conduct of his independent contractor is in issue, a facet of the enquiry into the relevant circumstances which requires particular scrutiny is the state of the employer's knowledge relating to the actual existence of a dangerous situation at the very time when harm befalls a third party."
Applying the test thus enunciated and having
regard
to the criteria listed, the first appellant's
liability for the damages
suffered by the respondent
from September 1983 bnwards is clear. The nature
of
the danger and the context in which it might arise were
known to the
first áppeilant ab initio. Once the
fifst appellant had been
apprised that the danger had
ihdeed supervehed and was likêly to continue unless
adequate steps
were taken, it was no longer a question
of foreseeability. According to the
respondent's
letter of compiaint harm had in fact been caused and
was
likely to continue. First appellant should then
32.
have known that the experts which he had engaged were not effectively avoiding the harm which had been foreseeable f rom the outset. At the very least he ought to have harboured some doubts as to whether the respondent's allegations might not just possibly be true. There is no evidence that the first appellant, with a department of State at his disposal and a regional office in Port Elizabeth, caused any steps to be taken dehors the second appellant to establish the facts and, if necessary, to have remedial steps taken. While it may be ihferred in first appellant's favour from the opening words of the belated and dismissive letter sent to the respondent ("The Consulting Engineers advised ...") that some enquiry was directed to the second appellant, such enquiry - predictably -proved ineffectual. It was, after ail, implicit in respondent's letter of complaint that not only the contractor but also thé second appellant had failed in its duty. There is nó évidence that the departmental
33.
officials caused any independent enquiry to be made. It goes without saying
that, had the true facts been established with due expedition,
the remedial
steps Ross alleged had been taken could indeed have been implemented. The first
appellant was therefore rightly held
liable for the damages flowing from the
wrongful execution of the work he had commissioned once he had been apprised of
respondent's
complaint.
The position of the second appellant calls for little
comment. Once it is found, as it must and has been, that the contractor's
delictual
conduct persisted throughout the construction period, Ross' failure to
exercise second appellant's supervisory duties was indefensible.
On the evidence
the continuing wrong was patent and the consequential harm to respondent's
business self-evident. In terms of the
General Conditions of Contract (clause
16) the contractor was óbliged "as soon as practicable after the
acceptance of his
tender" to submit to Ross "for
34.
his approval a programme showing the order of procedure and method in which he proposes to carry out the Works
...". In the event the programme submitted by the
contractor was only
submitted some three weeks after the work had commenced. At that stage, on Ross'
version, extensive trenching
for new water mains, sewers and stormwater pipes
and the location and exposure of existing services had already been conducted.
(Respondent,
of course, established that by then the existing street surfaces
had been extensively ripped up.) The programme, which was only discussed
in
detail on 7 June 1983, envisaged building the new roads to the east as a
priority; Shortly thereafter the programme proved impracticable
and the
construction of the new streets was deferred until many months later. Ross
sanctioned the abandonment of the programme but
failed to devise ánd
sUpervise the implementation of an alternative whereby feasonable access to
respondent's premises could
be maíntained. It is evident from the
35.
site minutes that such access remained a matter of concern: On 26 July, 23
August and 20 September 1983 Ross issued instructions to
the contractor
regarding access. Yet, as the evidence disclosed, no effectual steps to remedy
the situation were taken. When Ross
was confronted in cross-examination with
this ostensible passivity, he protested that there was little he could do to
compel the
contractor to comply with its obligations. The protestations are
singularly unconvincing. Ross was the engineer in charge of the
project and the
Geheral Conditions of Contract are replete with provisions arming him in that
capacity with a number of sanctions
against the contractor. Second appellant was
engaged to ensure that the contractor duly performed its obligations and Ross
was clothed
with the requisite authority so to do. The continuing harm being
done to inter alia the respondent was patent. Second appellant is
vicariously liable for such failure on the part of Ross. The second
36.
appellant and the contractor were therefore joint wrongdoers in respect of the
damages suffered by the respondent throughout the
construction period. In
respect of the damages sustained from the beginning of September 1983 to the
conclusion of the contract work
in March 1984 first appellant was a joint
wrongdoer with the second appellant and the contractor.
When it came to the
assessment of damages the trial court took, as a starting point, the amount of
R13 798 claimed in the summons
and detailed in the further particulars. The
figure represented a computation of the respondeht's probable loss of cash sales
during
the contract period, i e his negative interesse. Taking the
historical data derived from his financial records respondent estimated what his
cash sales would have been from month
to month during the contfact period,
deducted the actual cash sale proceeds and claimed the difference. The financial
data were properly
verified ahd the computation based thereon is
37.
sound
in principle. Nor can the trial court's
appropriation of the damages to the
respective periods
up to the end of August 1983 and thereafter be
faulted.
The next step in the trial court' s
computation of the damages
awarded is equally sound.
Even if the contract works had been executed
properly,
i e with due regard to respondent's right of reasonable
access
to his premises, some loss of cash sales would
inevitably have beén
sustained. The general disruption
of the area and the continued presence and
activities
of the contractor, the municipality and the Department
of Posts
ahd Telecommunications would probably have
diverted some of respondent's
potential cash customers.
Self-evidently the extent of such unavoidable
loss
cannot be assessed with any attempt at accuracy. Nor
can it be said
than the respondent failed to furnish
reasonably available data which could
have assisted in
such computation: Conseguently the trial court's
reliance
on the remarks of Stratford J in Hersman v
38.
Shapiro & Co 1926 TPD 367 at 379 (quoted with approval
in this court in Esso Standard SA (Proprietary) Limited
v Katz 1981 (1) SA 964 (A) at 971F) was apposite:
"Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is very little móre than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is hot so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the Court is justified in giving; and does give, absolution from the instance. But where the best evidence available has been produced, though it is not entirely of a conciusive character and does hot permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it."
The learned trial judge decided upon a
deduction of
25% from the respondent's computed damages
to allow for the loss which would
have been sustained
had the work been performed properly. Wisely
neither
the basis for the deduction hor the percentage decided
39.
upon has been challenged on appeal. The respondent adduced convincing
evidence as to the quantum of his overall loss of income. How
much he would have
lost had the interference with his business been confined to the reasonable
minimum, could not be shown with any
attempt at accuracy. Consequently the
learned judge a quo was constrained to make as sound an estimate as the
evidence allowed. That he did.
Two points regarding the trial court's
assessment of damages were urged on behalf of the appellants. The first was
whether an amount
of approximately R7 000 which the respondent admitted under
cross-examination he had received from the Grahamstown municipality in
connection with the business disruptioh loss he had suffered, fell to be taken
into account ih the assessment of the damages to be
awarded. The court a
quo did not deal with the point in its judgment and counsel for the
appellants submitted that this court should remedy such perceived
40.
omission.
In my view the learned judge a quo correctly ignored the amount
when computing the award to be made to the respbndent: The passage
referred to
by counsel for the appellants (the only reference in the record to the amount in
question) leaves the amounts, dates
and total of the páyments in the air
and says nothing about their causa. Moreover the question was not raised
on the pleadings - as it ought to have been by way of confessioh ahd avoidance -
and was not
properly canvassed at the trial. This is therefore not a case
falling within the ambit of the rule ih Shill v Milner 1937 AD
101.
The second point taken on behalf of the appellants with regard to
damages was that the trial court erroneously failed to take into
account that in
consequence of the respondent' s loss of cash sales there was a build-up of
stock which could have been sold later.
There is no merit in the point. On
the
41. uncontroverted evidence of the respondent, which accords with
commonsense and experience, the cash sales lost during the period
of negligent
interference with his business could not be recouped by other cash sales
thereafter.
In the result the appeal is dismissed with costs.
J.C. KRIEGLER AJA
JOUBERT JA
VIVIER JA
CONCUR MILNE JA
EKSTEEN JA
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