A GIBB & SON (PTY) LTD V TAYLOR & MITCHELL TIMBER SUPPLY CO

A GIBB & SON (PTY) LTD v TAYLOR & MITCHELL TIMBER SUPPLY CO (PT...
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A GIBB & SON (PTY) LTD v TAYLOR & MITCHELL TIMBER SUPPLY CO (PTY) LTD 1975 (2) SA 457 (W)
1975 (2) SA p457
Citation Court Judge Heard Judgment Annotations
1975 (2) SA 457 (W) Witwatersrand Local Division Coetzee J April 13, 1974 February 7, 1975 Link to Case Annotations
Flynote : Sleutelwoorde
Negligence - What constitutes - Delictual liability of merchant seller for damage caused by defective merchandise - Whether there is such liability in South African law - What must be proved. B
Headnote : Kopnota Depending upon the particular circumstances there is in our law no reason why a merchant seller should not be delictually liable for harm caused by defects in the goods which he sells to the public. His negligence may take many forms. In regard to the possible failure to exercise reasonable care to inspect the goods to discover defects the enquiry begins with the question of whether a diligens paterfamilias in his position would have C inspected the goods at all. Whether his actual inspection falls short of requisite standards is a question with many facets but it is one which arises only after the plaintiff has proved that the first question should be answered affirmatively. In the application of this principle it would be necessary, generally speaking, to study carefully the particular market place in question, i. e. the kind of trade which is conducted, the methods employed and the expectations of those who customarily deal in it. Such a study may reveal D that the particular diligens mercator would inspect only some of his merchandise and, moreover, would carry out his inspection more thoroughly in respect of some of his goods than of others. Where the commodity is something which is not inherently dangerous but where potential harm caused by defects in it depends on how it is used the study of the market place must be refined to an enquiry whether the diligens mercator anticipates that, as a probability, the user will examine that commodity before using it in the manner in which that is E usually done and thereafter use it for the purpose for which it is customarily used. If he does so anticipate an examination which will probably reveal its defects Aquilian liability does not attach to a defendant in a comparable situation. He then does not foresee danger and when that is not foreseen, there is nothing to guard against; hence the duty to take this kind of care is not established. Plaintiff building company had contracted to erect scaffolding. F It had had to order and obtain extra saligna scaffolding planks from the defendant merchant. Whereas saligna is used because it rarely if ever has a knot in it, one of these planks did do so and broke under the weight of somebody as a consequence. Having paid out that person's damages, plaintiff sought to recover at least a portion of the amount from the defendant under the Apportionment of Damages Act. Only the plaintiff led evidence and admitted that its foreman was under a duty to have inspected each plank. Part of the liability was G sought to be imposed on the defendant on the basis that it also should have inspected the plank, discovered the faulty one, and rejected it. Held, that on the evidence the plaintiff had not succeeded in proving, on a balance of
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A GIBB & SON (PTY) LTD v TAYLOR & MITCHELL TIMBER SUPPLY CO (PT... Page 2 of 9
probabilities, circumstances which pointed to an anticipation on the defendant's part that the offending plank might be used in the condition in which it was sold without prior inspection. Held, therefore, that the defendant had not been shown to have H been negligent in failing to inspect the plank: absolution accordingly granted with costs. Case Information Action for damages. The facts appear from the reasons for judgment. S. A. Cilliers, for the plaintiff. W. P. Schutz, for the defendant. Cur. adv. vult. Postea (February 7).
1975 (2) SA p458
Judgment COETZEE, J.: In 1968 when the plaintiff, a building contractor, was erecting a building at the corner of Heidelberg Road and End Street, Johannesburg, an accident occurred. One Drummond, an employee of a plastering sub-contractor, sustained serious A injury as a result of a defective scaffold plank which gave way under him. The defendant, a building materials merchant, had supplied the offending plank to the plaintiff. The plaintiff was sued by Drummond for damages and eventually it accepted liability therefor. The plaintiff alleges that Drummond suffered damages in the sum of R6 075 which it paid. It claims that, having regard to the B degree in which the plaintiff and the defendant were respectively at fault in relation to the damages suffered, it is just and equitable that the fault of the plaintiff and the defendant respectively be apportioned in the proportions of the plaintiff being liable for 10 per cent and the defendant being liable for 90 per cent thereof. Hence plaintiff seeks to C recover R5 467,50 of the amount which it paid to Drummond under the provisions of sec. 2 (12) of the Apportionment of Damages Act, 34 of 1956. In its particulars of claim, the plaintiff alleges that Drummond's injury was caused by its own and the defendant's negligence. The following are the respects in which the defendant is said to have been negligent:
D
"(i)
the servants of the defendant, acting within the course and scope of their employment, manufactured, sold and delivered to the plaintiff scaffolding planks which included a plank weakened by a large knot and which weakness in the plank the servants of the defendant, by the exercise of reasonable care, could and should have observed;
(ii)
the servants of the defendant, acting as aforesaid, by the exercise of reasonable care, could and should have E prevented the said plank being manufactured and/or sold and/or delivered to the plaintiff; the servants of the defendant, acting as aforesaid, failed to inspect or properly inspect the said plank before or while it was being manufactured and/or sold and/or delivered when, by the exercise of reasonable care, they could and should have inspected the said plank and observed the weakening of the said plank and prevent it from being manufactured and/or sold and/or delivered; the servants of the defendant, acting as aforesaid, failed to test the strength of the said plank before selling and/or delivering the same to the plaintiff when, by the exercise of reasonable care, they could and should have tested the said plank and prevented it from being sold and/or delivered to the plaintiff."
(iii)
(iv)
As the defendant was only notified of the mishap some 18 months G later and the offending plank could never be produced for its inspection it is not surprising that it joined issue on virtually every averment. In the alternative it pleaded that Drummond's negligence caused his injuries. In the further alternative it advanced additional negligent acts and omissions on the plaintiff's part which need not be reproduced here in H view of the conclusions which I have reached. The defendant contented itself with simply probing the plaintiff's case by cross-examination of the latter's witnesses without leading any evidence to controvert directly anything deposed by them. On the whole these witnesses testified satisfactorily and honestly and fact finding in casu is, unlike the legal problems, a
comparatively simple task. It is unnecessary to deal with this testimony in any detail. I summarise as follows those facts which may be relevant to the questions of law which were debated at the trial and which, in my judgment, have been proved:
1975 (2) SA p459
COETZEE J 1. The plastering work at the above-mentioned site had been subcontracted to Phoenix Plasterers (Pty.) Ltd., which employed Drummond. One of the terms of their written contract with plaintiff provided that plaintiff was obliged to erect scaffolding as required by the plasterers. 2. By 12 September 1968 the plaintiff urgently required additional scaffolding, particularly to satisfy the requirements of the plasterers. A written order addressed to the defendant reading as follows was taken by one of the plaintiff's drivers to the defendant's place of business:
"To: Messrs. Taylor & Mitchell Timber Supply Co. (Pty.) Ltd.:
Please supply the undermentioned goods for: Contract: F. A. G. Bearing (S. A.) Co. Deliver to: taken own transport. Quote order no. and contract on delivery notes. C 2" x 9" Gumboards with steel end caps. 45 only 12' 0" long scaffold planks at 15c per lin. ft."
3.
The defendant is a retail merchant which, according to its printed stationery, trades in "mining and scaffolding poles, props, wedges, split and pressure treated poles". It supplied these scaffold planks in response to the abovequoted order. In its delivery note and invoice it describes the goods sold as: "45 - 12' x 9" x 2" gumboards." 4. The "gum boards", of this size, were saligna planks. They are widely used in the building industry for the construction of scaffold platforms. The defendant must have known that plaintiff was a building contractor and that it would probably use the planks for this purpose in a manner which is customary in the building trade. The works foreman, Van der Berg, received these 45 new planks. He merely checked the correctness of the quantity without examining them at all.
5.
6.
Together with old planks on site, the new planks were used to erect scaffold platforms for the plasterers. The plank which broke F under Drummond's weight was one of these new planks. That particular section of the scaffold had been erected the previous afternoon. This plank was patently defective as there was a large knot, about 6" in diameter, which extended for some depth into the wood which greatly weakened the plank. When Drummond trod upon it, it broke at the knot. 8. The defect in the plank was an and any reasonable person with scaffolding, would realise that it be sufficiently strong to support height off the ground. obvious one, being clearly visible on one side knowledge of its intended use, i. e. as may be dangerous because scaffolding must building workers and their materials at some
7.
9.
It was Van der Berg's duty to inspect the planks which were used for the scaffold platforms and to ensure its safe and secure construction. This he failed to do. Had he inspected it he would have detected the defect and he would not have allowed its use as a scaffolding plank. When he did inspect the plank after the event he realised that it should never have been used. Although Van der Berg concedes readily that he should have inspected the new planks and indeed that it is a duty imposed by
1975 (2) SA p460
10.
COETZEE J
statutory regulations his omission to exercise care was not only attributable to pressure of work but also to his experience of reputable firms who deal in this commodity, which led him to expect that new scaffolding planks of good quality only would be supplied.
A
11.
It was during ordinary use thereof that the plank broke. Drummond could not be expected to inspect the scaffold before using it. If the knot faced upward it is unlikely that he would have seen it as he did not concentrate on the construction of the scaffold or the quality of the materials. On the contrary, he was entitled to expect that the scaffold had been constructed with ordinary skill and B care and that it was safe to be used in the way he did. He was not at fault.
Already in his opening address, Mr. Cilliers, for the plaintiff, foreshadowed that he might not be able to prove that the defendant was the manufacturer of the plank and that he would have to establish, as he put it, that on the facts of the C case there was a duty of care on the defendant, as retailer, " not to send this defective plank into the world". As will have been seen from my summary above there was indeed no proof that the defendant was the manufacturer and this is the first case in South Africa in which a merchant seller is sought to be held delictually responsible for damage suffered by a third person D which was caused by defects in his merchandise. I had to decide the matter therefore by applying the fundamental principles of Aquilian liability as developed in our own modern law without the aid of judicial precedents or any judicial discussion of similar or related problems. Nor, for once, can any assistance be derived from the South African academic quarter either. Their American and (to a lesser extent) English E counterparts' intellectual production in this particular area of the law of delict has been on a massive scale. There is however a dearth of South African academic writing under the rubric of "products liability" as it has been styled in America. Apart from one short essay published in the 1966 South African Law Journal at p. 87 and a paper read by Professor J. C. van der Walt at the South African Law Conference of 1972 I did not come across anything of note in South African legal F literature. The scope of this essay and paper unfortunately afforded their respective authors but scant opportunity for dealing with the subject in any depth beyond brief allusions to some of the aspects of American and English developments. They concerned themselves only with the manufacturer's liability. In the course of a short discussion of liability for control of G dangerous movables, McKerron devotes two paragraphs to a manufacturer's liability at p. 250 of Law of Delict, 17th ed. Van der Merwe and Olivier in their Die Onregmatige Daad in die Suid-Afrikaanse Reg, 2nd ed., are altogether silent on the subject. It is rather picturesquely stated in the introduction to Frumer H and Friedman's monumental four tomes on Products Liability (an American publication) that:
"To-day's law of products liability mirrors the complex, highly industrialised, Madison Avenue, 25 - inch screen, 'hard sell', atomic age of the expert in which we live. New products pour forth constantly. The worth, quality and benefits of these products are described in glowing terms and in considerable detail, and the appeal is almost universally directed to the ultimate consumer."
Our own 66 cm screen is still an impending event but one can confidently forecast that in this sector of the law lies a fertile field for academic research and disputation which may proliferate as we progress along the
1975 (2) SA p461
COETZEE J road of industrialisation. Possibly the rather humble saligna scaffolding plank may still set this ball rolling one day. There has been a rapid and dramatic development of products liability in the United States since the landmark decision of CARDOZO, J., in MacPerson v Buick Motor Company in 1916. This A decision was a departure from the privity concept of the common law of torts and it was soon followed in many other jurisdictions. In the result the principles of fault liability in American law became much more elastic and approximated much more closely to those of our own system. In many non-privity situations American and South African law would soon after 1916 B have arrived at similar solutions. Thereafter,
speaking very generally, further development can be summed up by saying that, after overtaking us, America outstripped us. So much is this so that, in the majority of their jurisdictions at present, a strict liability exists in many such non-privity situations. Fault liability is, however, still retained in others but the movement towards strict liability continues C strongly. See Handbook of the Law of Torts by William L. Prosser, 4th ed., para. 96, p. 641, and Frumer and Friedman, op. cit., vol. 1, para. 3. Looking through the large volume of case summaries in these and other American textbooks, one is forcibly struck by the fact that their Courts, in those cases where fault liability is D still applied, are very quick to find that all kinds of duties of care were owed by the defendants. This is one of the natural ways in which the net of liability expands. There are of course also other devices which are employed to speed the transition from fault to strict liability. Possibly due to our own positivist backgrounds, the pace of this transition, particularly the Californian, must seem unbelievably brisk to South African lawyers. It is important to appreciate this E general tendency and its strength when one examines, for comparative purposes, their solutions of problems similar to that in casu. American Judges and writers will confidently find duties to care to exist where we may still tread very warily and hesitantly. By reason of this very tempo of their expansion of liability they may serve a useful purpose by demonstrating a F high water mark to South African eyes as the latter are presently focused. See for instance, Frumer and Friedman, para. 3, supra, as follows:
"The holding in the Chapman case eliminates, of course, the issue of forseeability to the extent that defendant was 'charged with the knowledge which tests would have revealed' without reference to whether defendant knew or should have known of any need for the tests. It seems clear, however, that G strict liability was imposed to only a limited extent. If defendant had made adequate tests and the hazard was not revealed, it probably would not have been strictly liable. To this extent, the decision does not go as far as strict liability in warranty, under which there may be liability even though all possible tests have been made and the hazard is not apparent. This area of products liability is one in which semantics are important. It was stated in this treatise in 1964: 'the Courts generally are reluctant to impose strict liability as such. It does not seem to trouble them so much H when they do so under the guise of finding a breach of warranty'. This statement is no longer accurate, in light of the trend toward strict liability in tort since that date. Of course, if a statute or ordinance is involved, and violation thereof is negligence per se, a species of strict liability may be imposed. And the application and operation of res ipsa loquitur may be such that there also a species of strict liability is being imposed, because the jury may be permitted to find for the plaintiff without any specific evidence of negligence."
The case of Chapman which is referred to by the learned authors (which is Chapman Chemical Co. v Taylor, 215 Ark. 630) is not at all comparable.
1975 (2) SA p462
COETZEE J I have quoted this passage simply because it indicates crisply the tendency to which I have referred. In the instant case, one of the most important questions which must be answered is whether the defendant was under a duty to A inspect the planks before sale to discover defects of which he did not know. Hence, I shall concentrate on this aspect in my references to American and English Law. Prosser, op. cit. at pp. 632 - 634, says the following:
"The seller's negligence may take a number of forms. It may consist of a misrepresentation of the character of the goods, or of their fitness for a particular use. It may consist of a failure to disclose to the buyer facts of which the seller has knowledge which makes the goods dangerous for the buyer's B purpose. It may take the form of a sale to a person obviously incompetent to deal with the goods, as in the case of an explosive sold to a child. Most frequently, it consists merely in failure to exercise reasonable care to inspect the goods to discover defects, or in preparing them for sale. When the action is one for negligence, it is of course agreed that the care required of the seller is only that of a reasonable man under the circumstances. There has been a dispute as to whether C the retailer of goods manufactured by another is under a 'duty' to inspect them before sale, to discover defects of which he does not know. It may be suggested that the dispute has been addressed to the wrong question. It can scarcely be denied that there is a duty to exercise reasonable care for the protection of the buyer - which is to say, the care of a reasonable man under like circumstances; and the problem is simply one of whether the reasonable man would make such an examination. This will be entirely a matter of the circumstances of the particular case.
D
In the absence of some special reason to suspect that something is wrong, it is clear that the obligation of the dealer does not extend to the opening of sealed containers, or to taking the goods apart, or to making mechanical chemical tests; and it is entirely possible that reasonable precautions will require no
inspection at all where the goods are purchased from a reputable manufacturer, there appears to be no occasion for it, and it would normally be regarded as unnecessary. Certainly much less is required of the dealer than of the E manufacturer. But the dealer normally handles the goods, if only to put them on his shelves; and he can scarcely be absolved from the obligation of such cursory examination as reasonably accompanies the process. In any case where the nature of the goods themselves makes it more likely that the defects will lead to serious injury - as, for example, on the sale of an automobile - something more careful than such casual examination will be required and, if there is any F special reason to believe that the particular product may be defective, very thorough inspection may be required before it is sold. The existence of any special likelihood of danger, the ease of detection of the defect, the seller's maintenance of sales and service departments, the custom of the business as to such products, the special competence of the seller and his superior position to discover defects, are all factors to be taken into account."
The "dispute" as to whether a retailer is under a "duty" to inspect, to which the learned author alludes, is explained by G him in footnote 23 at p. 632, which contains a formidable list of published material on this point between the years 1941 and 1948. This footnote concludes as follows:
"Eldredge had the better of the argument, to the extent of that, as reporter for 1948 Supplement to the Restatement of Torts, he succeeded in carrying through the American Law Institute, a change in para. 402, declaring that the retailer is under no duty to inspect."
H In the Restatement (2nd) Torts, the American Law Institute retained para. 402 intact, as it was framed in the 1948 Supplement. It is interesting to note that Prosser was the reporter for this latest edition which was published in 1965. At p. 300 in the introduction to the first topic of chap. 14 it is explained that the rules which determine the peculiar liability of vendors of chattels manufactured by others, are stated in paras. 399 - 402 and that,
"a special rule of strict liability applicable to sellers of articles for consumption is stated in 402A." 1975 (2) SA p463
COETZEE J (My underlining). It is important to bear this distinction in mind when reading chap. 14 which may otherwise appear to contain much selfcontradiction. Paras. 400 - 402 read as follows:
"400. One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.
A
401. A seller of a chattel manufactured by a third person who knows or has reason to know that the chattel is, or is likely to be, dangerous when used by the person to whom it is delivered or for whose use it is supplied, or to others whom the sellers should expect to share in or be endangered by its use, is subject to liability for bodily harm caused thereby to them if he fails to exercise reasonable care to inform them of the danger or otherwise to protect them against it.
402. A seller of the chattel manufactured by a third person who B neither knows nor has reason to know that it is, or is likely to be, dangerous, is not liable in an action for negligence for harm caused by the dangerous character or condition of the chattel because of his failure to discover the danger by an inspection or test of the chattel before selling it."
In the comment to para. 401 it is explained that the words "reason to know" do not impose any duty to ascertain unknown C facts, and should be distinguished from the words "should know". The following passage from the comment to para. 402 bears reproduction:
"There is a clear distinction between the liability of a manufacturer and that of a seller of goods made by another or harm caused by a chattel made by the former and sold by the latter. The manufacturer of a dangerous defective chattel is the creator of something which is forseeably dangerous when it D is used for the purpose for which it is manufactured. The constructing of the chattel defectively, with knowledge that it is to be sent out to be used, is an unreasonably dangerous activity. On the other hand, the seller who reasonably believes that the chattel he is selling is not, for selling and delivering the chattel, doing anything which is foreseeably likely to cause harm. The slight risk inherent in the possibility that the chattel may be defective is not sufficient to constitute an unreasonable risk. The burden on the seller of E requiring him to inspect the chattels which he reasonably believes to be free from hidden danger outweighs the magnitude of the risk that a particular chattel may be dangerously defective. Negligence is determined in the light of the facts known to the actor."
The edition of Prosser, Law of Torts, from which I have quoted was published in 1971 and his discussion of products liability at pp. 645 - 646 indicates that since the Restatement (2nd), F there must have been considerable advances along the road to strict liability the seller's duty to inspect is apparently no longer restricted to consumables.
In England there has not nearly been so much frantic activity on this front as in America. Donoghue v Stevenson, 1932 A. C. 562, made it possible to impose liability, based on G foreseeability, on manufacturers and others supplying goods to the public. Clerk and Lindsell on Torts, 13th ed., in para. 878, point out that in the light of a number of cases the phrase "probability of intermediate examination" needs to be substituted in place of "possibility" of such an examination in Lord ATKIN'S well-known formulation of the rule. This represents an extension of this liability in that a mere possibility of an intermediate examination by the purchaser is H not sufficient to absolve the defendant. It must be more than a possibility, it must within the contemplation of the parties as likely. See Herschal v Stewart and Adern Ltd., (1939) 4 All E. R. 123 at pp. 127, 134; Haseldine v C. A. Daw & Son Ltd. and Others, (1941) 3 All E. R. 156 at pp. 183 - 184; Kubach v Hollands, (1937) 3 All E. R. 907; Salmond on Torts, 14th ed., pp. 433 - 436; Winfield on Torts, 7th ed., pp. 270 - 271. After some initial resistance in England to the extension of the manufacturer's liability to other suppliers, the trend has clearly been in that
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COETZEE J direction. See Salmond, op cit. at pp. 433 - 5. In regard to the opportunity for inspection, it is pointed out (at p. 435) that it is now plain
"that the mere existence of such an opportunity will not exonerate the defendant; the proper question is whether he A should reasonably have expected that the plaintiff would use the opportunity for inspection in such a way as to give him warning of the risk. In short, the decision in Donoghue v Stevenson did not depend on the bottle being stoppered and sealed. Thus in Grant v Australian Knitting Mills the manufacturers' contention that the purchaser could have protected himself by washing the underwear before use, was answered by Lord WRIGHT in one sentence: 'It was not contemplated that they should first to be washed.' 'If there was any doubt about the governing principle of Donoghue v. B Stevenson, Lord WRIGHT has dissipated it.' - Per GODDARD, L. J., in Haseldine's case."
TUCKER, J., Herschal's case at p. 127, emphasises the importance of the question whether an intermediate examination was within the contemplation of the parties; hence whether such an examination could reasonably be anticipated by the C defendants (p. 134). This consideration also affects causation (see Clerk and Lindsell, para. 879, and TUCKER, J., in Herschal's case, supra ) but that does not detract from its importance in the enquiry as to the existence of a duty on the part of the defendant to inspect the goods before sale. Turning now to our law, the principles of Aquilian liability for unintentioned injury are well established and they are D fully stated in Cape Town Municipality v Paine, 1923 A. D. 207, as this decision was construed by STEYN, J. A., at pp. 264 - 5 and 267 - 8 of his judgment in Silva's Fishing Corporation (Pty.) Ltd. v Maweza, 1957 (2) S. A. 256 (A. D.). (See Minister of Forestry v Quathlamba (Pty.) Ltd., 1973 (3) S. A. 69 (A. D.) at p. 82). The oft-quoted passage in the E judgment of INNES, C. J., in Paine's case at pp. 216 217 in which the principle is succinctly expressed, reads as follows:
"Every man has the right not to be injured in his person or property by the negligence of another - and that involves a duty on each to exercise due and reasonable care. The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided in each case upon a F consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established and it only remains to ascertain whether it has been discharged."
This formulation does not, in terminis, state that the act or omission must have been wrongful. This element is so obvious that it was no doubt tacitly assumed (per VAN DER HEEVER, J. G A., in Herschel v Mrupe, 1954 (3) S. A. 464 (A. D.) at p. 485 - see also McKerron, op. cit., at p. 13). On the score of foreseeability of likelihood of harm and the governing of one's conduct accordingly (from the point of view of negligence pure and simple without considering additional questions such as unlawfulness of the conduct) there is now hardly and difference H in principle in approach between our own and American and English law. Although this question must be decided in each case upon a consideration of all the circumstances, the results obtained in these systems by the application of similar principles and through reasoning which is also familiar to our own,
are instructive and have been very helpful to me in dealing with the instant problem. Depending upon the particular circumstances, there is also in our law no reason why a merchant seller should not be delictually liable for harm caused by defects in the goods which he sells to the public. His negligence may take many forms. I shall concern myself with a possible failure to
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COETZEE J exercise reasonable care to inspect the goods to discover defects. This enquiry begins, logically, with the question of whether a diligens paterfamilias in his position would have inspected the goods at all. Whether his actual inspection falls short of requisite standards is a question with many facets but it is one which arises only after the plaintiff has proved that A the first one should be answered affirmatively. For purposes of our law I do not think that I can go along with the formulation of para. 402 in the Restatement (2nd). To state the absence of a duty to inspect so categorically, puts shackles on our own principles where none exist. It may be B difficult to think of examples, but it is not impossible that in a given situation a reasonable seller who does not know that an article is likely to be dangerous, would still inspect it. Although this consideration (whether it is likely to be dangerous) necessarily features prominently in every enquiry, modern life is much too complex and the aggregate of possible relations and their permutations too insusceptible of measurement to be dogmatic. I believe that the proper C application of our principles, with respect, finds adequate expression in the passage from Prosser, supra, where this learned author deals with the dispute over the existence of this duty and goes on to say:
"It may be suggested that the dispute has been addressed to the wrong question. It can scarcely be denied that there is a duty D to exercise reasonable care for the protection of the buyer - which is to say, the care of a reasonable man under like circumstances; and the problem is simply one of whether the reasonable man would make such an examination. This will be entirely a matter of circumstances of the particular case."
In the application of the principle so stated it would be necessary, generally speaking, to study carefully the particular market place in question, i. e. the kind of trade E which is conducted, the methods employed and the expectations of those who customarily deal in it. Such a study may reveal that the particular diligens mercator would inspect only some of his merchandise and, moreover, would carry out his inspection more thoroughly in respect of some of his goods than of others. Where the commodity is something which is not F inherently dangerous but where potential harm caused by defects in it depends on how it is used, the study of the market place must be refined to an enquiry whether the diligens mercator anticipates that, as a probability, the user will examine that commodity before using it in the manner in which that is usually done and thereafter use it for the purpose for which it is customarily used. If he does so anticipate an G examination which will probably reveal its defects, Aquilian liability does not attach to a defendant in a comparable situation. He then does not foresee danger and when that is not foreseen, there is nothing to guard against; hence the duty to take this kind of care is not established. Cf. VAN DER HEEVER, J. A. 's analogy in Herschel v Mrupe, supra at p. 487G. Coming nearer home, one thinks of the example of the timber H merchant whose yard, and trade, are fairly notorious. One sees there mountains of South African pine, sawn up into a large variety of timber sizes and one knows that the building industry uses huge quantities of this material. This timber is famous for a quality which has been enshrined in a graphic description of a particular finish namely, its knottiness. Sometimes a length of brandering is so weak at one of the many knots that one can almost blow it into two pieces. The carpenter who blithely and blindly nails every
1975 (2) SA p466
COETZEE J bit of such brandering coming from a timber yard to his roof trusses can almost be accused of dolus - one who wishes to ensure that it will collapse under the weight of the roof tiles. Yet, the timber merchant does not employ an army merely A to inspect each one of the hundreds of thousands of pieces of timber so as to excise from them only the
fairly usable pieces. He does not have idiots or vandalists in the building trade in mind when he designs his own trading methods. He merely supplies the materials which, as is common knowledge, will be worked and fashioned, after proper inspection thereof, into a B whole which is something different from its individual components. What do I know about the market place in casu? Not a great deal. The defendant is apparently a merchant who is more specialised than the one envisaged in my example. I say this purely from a consideration of the type of goods bought and the defendant's description of itself as a supplier of "mining and C scaffolding poles, props, wedges, split and pressure treated poles". No evidence was really placed before me which would have enabled me to make a closer analysis of the activities engaged in by the defendant and merchants of that ilk and of the way in which people usually deal in that kind of commodity so as to enable me to form an idea of their expectations. The D evidence is clear however that the saligna, unlike South African pine, is not known for its knots; on the contrary, that because of its strength, it is very suitable for scaffolding boards which are made simply by sawing it up and steel capping the ends to prevent splitting and cracking. These boards are apparently also used in large quantities albeit, I should think, not nearly to the same extent as South African pine. This is a feature (only one of many) which may bear upon the E question of feasibility of inspection. But its reputed knot-free condition is more important because the reasonable specialist vendor who obtains these boards, from possibly a reputable manufacturer, may therefore not be alerted to a likelihood of defect caused by knottiness at all. Putting it at its highest for the plaintiff, not more than a possibility of F the need for such an inspection, for this reason, has been shown. On the contrary, although Van den Berg knew that he was obliged to be careful, his experience of these scaffolding planks was apparently such that he was not uneasy about their immediate use without any prior inspection. This is an indication that one is dealing with an article which is G regarded in this market place as something which is reliable. On the other hand, this very fact may of course point to a duty to inspect, if one postulates that the reasonable merchant would know that these planks are highly regarded by builders and used by them without prior inspection. In the absence, however, of evidence which deals more pointedly with customary expectations in this trade, this inference seems to me to be H too tenuous to be seriously regarded. What seems more likely is that such a specialist-merchant as the defendant would probably know very well, and anticipate, therefore, that builders must and do examine these boards and construct their scaffolding with great care because of its potential to cause serious injury when it gives way under their workmen. Weighing up all the evidence before me, I cannot say that the plaintiff has succeeded in proving, on a balance of probabilities, circumstances which point to an anticipation on the defendant's part that the offending plank might be used in the condition in which it is sold without prior inspection. I am, therefore, not persuaded that the defendant was negligent if it failed
1975 (2) SA p467
COETZEE J to inspect the plank and it follows that there must then be absolution from the instance with costs. Plaintiff's Attorneys: Bowen, Sessel & Goudvis. Defendant's Attorneys: Cliffe, Dekker & Todd.
2005 Juta and Company, Ltd.

A GIBB & SON (PTY) LTD V TAYLOR & MITCHELL TIMBER SUPPLY CO

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