---

IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

REPUBLIC OF SOUTH AFRICA

CASE NO. 14546/2008

In the matter between:

LEONARD ARTHUR COMAC PLAINTIFF

and

AKASH SAHAYE FIRST DEFENDANT

CHAMPS CONTROL CABLES CC SECOND DEFENDANT

___________________________________________________________________

JUDGMENT

___________________________________________________________________

GORVEN J

1. On 9 November 2005 the plaintiff attended the premises of the second defendant of which close corporation the first defendant was the sole member. He was about to sharpen a tungsten carbide tipped tool of the second defendant by way of a pedestal grinder with a silicon carbide stone. Pedestal grinders have disc shaped stones which rotate when the grinder is switched on. Virtually as soon as the grinder was switched on, the stone burst and the plaintiff suffered injuries to his face and one eye. He was taken to a doctor who had him admitted to hospital. Prior to the incident the plaintiff had done work for the second defendant for some five years. This continued for some time after the incident. The plaintiff and the first defendant became friends arising from this contractual relationship and still regarded themselves as friends at the time of the trial.

2. The incident mentioned above gave rise to the action before me. Two bases were alleged in the particulars of claim for the defendants having a duty of care towards the plaintiff to prevent harm. The first was pleaded as one to members of the public and to the plaintiff in particular to ensure the safety of the property of persons visiting and that machinery in use was adequately mounted and secured. The second was pleaded as being that reasonable steps were taken to guard against members of the public and the plaintiff in particular being injured by machinery not properly affixed. It was pleaded that on the day in question the first defendant instructed Padayachee to turn on a machine which he did and that the plaintiff was injured when the silicon carbide stone of the machine burst. Various grounds of negligence were alleged, including the following:

   1. The silicon carbide stone was fixed on to a grinder by way of four bolts.

   2. The grinder ought to have had a guard to prevent injury should the stone break off.

   3. The stone was not properly affixed to the machine and nor did the grinder have a guard.

   4. Padayachee failed to ensure that this was the case before switching on the machine.

3. The plea denied any such a duty of care, denied any such negligence and indicated that an agreement had been concluded between the plaintiff and the second defendant for certain work to be done by the plaintiff at the premises. In the alternative, the defendants pleaded contributory negligence on the part of the plaintiff in failing to fit the silicon carbide stone correctly, failing to refit the protective shield, failing to wear the requisite protective gear and failing to ensure that the grinder was safe for use.

4. At the inception of the trial the parties sought an order in terms of rule 33 (4) separating certain issues in the trial. The issues to be determined were agreed, and subsequently ordered, to be the following:

   1. The issue of negligence as pleaded as between the plaintiff and the defendants.

   2. Any contributory negligence of the plaintiff.

   3. The causal link between the negligence alleged and the injuries sustained by the plaintiff on 9 November 2005.

   4. The issue of the apportionment of damages as pleaded by the defendants.

   5. Whether there was a duty of care on the part of either defendant towards the plaintiff as pleaded in paragraphs 5 and 6 of the Particulars of Claim.

5. It should be mentioned that initially the action was brought against three defendants. The third defendant was not named. An amendment was sought and granted withdrawing the action against the third defendant and, where reference was made to the third defendant in the particulars of claim, to substitute the name of Mervin Padayachee (“Padayachee”). It was accepted by the defendants that Padayachee was an employee of the second defendant and at all times acted in the course and scope of his employment as such.

6. The evidence led on behalf of the parties converged at very few points. They agreed that the plaintiff had done work as an independent contractor for the second defendant for a period of five years prior to the incident. This work was of an engineering nature manufacturing certain items and sharpening certain tools. He was acknowledged by both parties to be an expert at this work. It was agreed that a short while before the day of the incident the first defendant had told the plaintiff that he needed the tungsten tipped tool to be sharpened. The plaintiff told the first defendant what stone was needed. The first defendant procured such a stone. On the day in question the plaintiff, in the office of the first defendant at the premises of the second defendant, indicated that the stone was the correct one. The second defendant had never before used a silicon carbide stone but had used normal stones on the pedestal grinders. In the office that day it was agreed that the stone would be fitted to one of the second defendant's pedestal grinders, that the plaintiff would sharpen the tungsten tipped tool and would show employees of the second defendant how this was done so that they could do so themselves in the future. Padayachee was called, instructed to fit the stone to one of the grinders and left the plaintiff and the first defendant in the office in order to do so. He fitted the stone but did not reassemble the guard on the grinder or the tool rest which fits on the guard. He told the plaintiff and the first defendant that he had fitted the stone and they walked to the grinder, the plaintiff holding the tungsten tipped tool. This then led to the events mentioned above where the stone burst. It was agreed by the parties that the grinder should not have been switched on without the guard in place. The first defendant took the plaintiff to a doctor. The first defendant later gave R5,000 to the plaintiff's wife so that a deposit could be made at the private hospital which was treating the plaintiff. So much for what was agreed between the parties.

7. The plaintiff claimed initially that on the day of the incident the first defendant had asked him to sharpen the tool. The plaintiff told him that it required a silicon carbide stone. He told the first defendant to let him take the tool home to his workshop so that he could sharpen it. The first defendant said that he would rather obtain the stone. Later the plaintiff conceded that this interaction had taken place some time prior to the day of the incident. At the second defendant's premises the first defendant asked him to do the job there so as to show his employees how it was done. He was told that the switch on the grinder was not working. There was an extension cord running from the grinder to a power point elsewhere. He was vague as to where this power point was located. He was walking to the grinder talking to the first defendant and was approximately half a metre from the grinder when it was switched on by someone and, within milliseconds as he put it, the stone burst and injured him. He claimed that the R 5,000 was a loan but gave no evidence as to the terms of repayment and said that he had not repaid the first defendant. He did not touch the grinder and most certainly neither switched it on nor applied the tool to the silicon carbide stone. Before it burst, he saw the stone vibrating. The stone which was fitted that day was 230 mm in diameter and was fitted to a large pedestal grinder which required four bolts to secure it to the table on which it was mounted. It was not the grinder depicted in the defendant's photographs forming exhibit A nor was it in the position indicated by the defendants against the far right-hand wall shown in the first photograph, exhibit A1. The only description he could give was that it was larger and had a push-pull switch rather than the toggle switch shown on the grinder in the photograph. He returned some time after the incident and noticed that this grinder was affixed to the table with only one bolt.

8. The defendants claimed that the initial agreement was that the plaintiff would sharpen the tungsten tipped tool at his workshop. However, he indicated that he did not have a silicon carbide stone and told the first defendant what stone to order. He came to the premises on the day and told the first defendant that he would not be able to sharpen the tool straightaway because he first had to urgently visit Pietermaritzburg and would only return home later and sharpen the stone. Since it was urgent, the first defendant asked him to do it on the second defendant's premises and to show the staff how it was done. The plaintiff then agreed to this. The diameter of the stone was 115 mm and it was fitted to a pedestal grinder which was affixed to the table with two bolts and was shown in a number of the photographs put up in the album marked exhibit A. The plaintiff told Padayachee to fit it as he would normally fit a stone. After fitting it, Padayachee left off the guard and tool rest so that the plaintiff, whom he regarded as an expert, could satisfy himself that the stone had been properly fitted. He wanted the plaintiff to check because Padayachee had not fitted a silicon carbide stone before. He expected the plaintiff to rotate the stone and to check the stone to ensure that there was no lateral movement by holding it and shifting it to each side. When they arrived at the grinder, the plaintiff turned it on and began applying the tool to the stone. Moments after it was switched on, the stone burst. After the incident the same grinder was used on a daily basis both with normal and with silicon carbide stones fitted by Padayachee without further incident. The grinder was checked and found to be mounted to the table with both bolts tight and intact. No mention was made that the switch of the grinder was not working. It was working. The grinder was plugged into a power point on the wall behind it and no one switched this power point on whilst the plaintiff was near the grinder. Padayachee had switched it off at the power point while he was fitting the stone and, before calling the plaintiff and the first defendant, had switched it on again at the power point. Padayachee claimed to have seen the plaintiff use the switch on the grinder to switch it on.

9. The factual scenarios sketched by the plaintiff and the defendants are mutually destructive in many material respects. I must accordingly assess whether the plaintiff has proved his version of the events on a balance of probabilities. I must also assess whether, if this is the case or even if not, the facts found proved give rise to liability of the defendants, or either of them, on the separated issues.

10. Beginning then, with the factual issues. The plaintiff did not impress me as being very clear in his recollection of events. He initially claimed that the first defendant had ordered the stone on the day of the incident. Under cross-examination he conceded that this had not been so. He was also extremely vague as to the layout of the workshop on the day in question. He initially indicated, with reference to photograph A1 that the table on which the grinder was situated was in a corner of the workshop not visible in the photograph. He later conceded that it could have been in the far right-hand corner visible in that selfsame photograph. In fact, from his description of the change rooms being in the vicinity of the table, that is where it had been located. He was also shown to be incorrect in at least two respects. The first of these is that the second defendant employed four engineers at the time. The second is his claim that, on the day in question, a person wearing protective goggles was working on a crankshaft. It is common cause that the automotive engineering aspect of the business began well after the time of this incident and neither of these claims could be correct.

11. There were also a number of contradictions and improbabilities in the plaintiff's evidence. I will not mention all of them. Paragraph 8 of the plaintiff's particulars of claim alleges that the first defendant instructed Padayachee to turn on the machine and that Padayachee had done so. This was not the plaintiff's evidence. His evidence was that he did not see who turned on the machine. He also stated unequivocally that, when he used a grinder of this nature, he would wear protective goggles at all times. However, the evidence emerged that there were no such protective goggles on the second defendant’s premises that day. The plaintiff had protective goggles which would fit over his prescription spectacles but these were at his own workshop. When the contradiction became apparent, he stated that this was a short job and that his prescription spectacles alone would have been fine. He also stated that he would have wanted a machine where the switch was on it so that he could turn it off if something went wrong. However, his evidence was that, without raising his concerns with the first defendant, he was prepared to work on the grinder in question even though he had been told that the switch was defective. A major improbability was that when he returned after the incident and inspected the premises, he found the grinder in question with only one of the four bolts in place required to anchor it to the table. Despite noticing this and despite his knowledge that the second defendant’s business made use of the grinder on a daily basis he conceded that he did not mention this to the first defendant. Had this grinder only been anchored with one bolt, it seems inconceivable that no further incidents would have occurred in the intervening six week period.

12. The plaintiff seemed to tailor his evidence to benefit his case. The first example of this is when he was asked what protective steps he had taken before approaching the grinder to sharpen the tool, he indicated that he wore his prescription spectacles but immediately added that they were quite large. As indicated above he also stated that protective goggles were not necessary for the job in question after being unequivocal about the necessity of using them for all work done on grinders. This was after it was put to him that he was not wearing protective glasses and replied that this was because he had not got around to the job. It was clear that he was highly evasive about the reason for not wearing protective goggles which was, simply, that he regarded the job as too insignificant to warrant their use. The second such example relates to his claim that the R5,000 paid by the first defendant to his wife and utilised as a deposit at the hospital was a loan and not a gift. When he was taxed as to why he had not repaid the loan, he became evasive and could not give an answer.

13. His demeanour was that of a person who was unclear and confused on a number of points. He did not concede to having made a mistake when he changed his answers. He did so only when it became apparent to him that his answers were illogical or inconsistent.

14. The first defendant, in contrast, was an excellent witness. There were no contradictions in his evidence. The probabilities are that, as the first defendant testified, the plaintiff was to visit Pietermaritzburg that day and, accordingly, could not sharpen the tool at his home. Being in something of a hurry, he did not check the grinder to ensure that the stone had been properly installed and did not affix the guard and the tool rest prior to turning on the grinder in order to sharpen the tungsten tipped tool. Whilst Padayachee's evidence was not as impressive, it corroborated that of the first defendant and was satisfactory. His evidence that, at the time of the incident, he was standing next to the plaintiff was denied by the plaintiff. It had the ring of truth, however, for, as he said, he caught the plaintiff as the latter reeled backwards when the stone burst. This claim by Padayachee was not challenged in cross-examination.

15. On a factual level, accordingly, I am of the view that the plaintiff failed to prove the facts contended for by him. If anything, the defendants’ version was preferable and more probable. I therefore reject the plaintiff's version as incorrect where the versions conflict with each other. At best for the plaintiff, I cannot prefer his over that of the defendants.

16. Even if one were to accept the plaintiff's version, however, the plaintiff still cannot succeed. This is because, assuming a duty of care on the part of the defendants, to which I will return later in this judgment, and assuming negligence on the part of the defendants as pleaded by the plaintiff, no evidence was led that conduct, positive or negative, on their part caused the stone to burst and, accordingly, caused the injuries to the plaintiff. In other words, factual causation, as required in an aquilian action, was not proved.¹ In Minister of Police v Skosana² the following was said:

Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to (see Silva's Fishing Corporation (Pty.) Ltd. v Maweza, 1957 (2) SA 256 (AD) at p. 264; Kakamas Bestuusraad v Louw, 1960 (2) SA 202 (AD) at p. 222) the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio.

17. No evidence was led about what causes a silicon carbide stone to burst. No evidence was led as to what caused the silicon carbide stone in the present matter to burst. No evidence was even led on the manner in which such a stone should be fitted. Nor was evidence led that, if a grinder was not properly affixed to the surface on which it stood, this could cause a stone to burst. There is therefore no basis on which I can find that any of the pleaded grounds of negligence (let alone any proved negligence) caused the stone to burst, thus causing bodily injury to the plaintiff and, accordingly, giving rise to damages on his part.

18. Even if I am wrong in this respect, the question of whether the plaintiff proved that a duty of care on the part of the defendants existed towards him arises. Whilst there are contracts which give rise to a duty of care, not all contracts with independent contractors do so.³ In each situation, the special circumstances of the case must be evaluated to decide whether such a legal duty exists. In the present matter it was common cause that the plaintiff was an expert in fitting and utilizing silicon carbide stones on pedestal grinders. It was common cause that no employee of the second defendant had ever fitted or utilized such a stone. It was common cause that the plaintiff had told the first defendant what stone to order and that the plaintiff was to show the staff of the second defendant how to use the stone to sharpen the tool in question. I find it difficult to conceive how, in such circumstances, any duty of care on the part of the defendants could have arisen. The plaintiff was an acknowledged expert and was, if anything, more alive to any dangers which may arise than the defendants. His only disagreement arose from whether or not he switched on the machine or one of the staff of the second defendant did so. As mentioned above, the evidence of the defendants is to be preferred on that point since there was no other reasonable explanation for who might have switched on the grinder if it had not been done by the plaintiff himself. None of the aspects of the duty of care pleaded in paragraph 5 of the particulars of claim arose, in my view. Likewise, the plaintiff failed to prove the breach of the pleaded ground for the duty of care relied on in paragraph 6, namely that the machinery was not properly affixed.

19. Whilst one has great sympathy for the plaintiff, who suffered dreadful injuries as a consequence of the silicon carbide stone bursting, liability can only be founded on negligence on the part of a defendant which amounted to a breach of a duty of care and which in addition caused or contributed to any damages sustained by the plaintiff arising from that injury.

20. In respect of the separated issues, therefore, I find that the plaintiff has not proved that the defendants, or either of them, was negligent. I find that the plaintiff has not proved that any conduct of the defendants, or either of them, caused or contributed to the injuries sustained by him on the day in question. I find that the plaintiff has not proved that there was a duty of care on the part of the defendants towards him as pleaded in paragraphs 5 and 6 of the particulars of claim. In the circumstances I do not find it necessary to make any findings on the negligence of the plaintiff.

21. On 9 November 2009 the matter was set down for trial. On that day it was adjourned and the question of the wasted costs occasioned by the adjournment was reserved for decision by the trial court. From the argument advanced by the parties, it appears that there was conduct on both sides leading to the adjournment. As a consequence, I consider it appropriate to make the costs occasioned by the adjournment costs in the cause.

22. In the result the defendants are absolved from the instance with costs, such costs to include the wasted costs occasioned by the adjournment on 9 November 2009.

Date of Hearing: 14 and 15 April 2010

Date of Judgment: 28 April 2010

For the Plaintiff: VM Naidoo instructed by Sergie Brimiah and Associates

For the Defendants: KC McIntosh instructed by Askew & Associates

---