Dormac Marine and Engineering (Pty) Limited v Calmin Andrew Henneberry

The respondent (plaintiff), a boilermaker employed by Camrod Engineering CC, was injured on 3-4 July 2002 while working at Dormac's dry dock in Durban. He was fitting a steel plate onto a ship's hull using chain blocks owned by Dormac. The respondent testified that after securing the plate with two 2-ton chain blocks (after a third centre chain block was removed on instruction), he began welding 'dogs' to hold the plate in position. While working, one chain block snapped, causing the plate to whip out and crush his left hand and wrist, which was subsequently amputated. Dormac operated a system whereby all rigging equipment was sent to an independent contractor, Nu Quip CC, for inspection, testing and certification before being put into use. The chain block in question had been tested and certified on 7 December 2001 and had not been used again until it was booked out to Camrod on 28 June 2002. Expert evidence from Nu Quip indicated that the chain block failed due to overload or shock load, as evidenced by elongation of links and the break pattern.

• Whether Dormac owed the respondent a duty of care to provide proper and safe equipment
• Whether Dormac breached that duty by providing defective chain blocks
• Whether the doctrine of res ipsa loquitur applied to establish negligence
• Whether Dormac took reasonable steps to guard against foreseeable harm
• Whether the steps taken by Dormac (contracting with an independent contractor for testing and certification) were reasonable precautions

The appeal was upheld with costs (excluding costs of preparing volume 2 of the record). The order of the court below was set aside and substituted with: 'Absolution from the instance is granted, with costs.'

Where an employer owes a duty to provide safe equipment and contracts with a competent independent contractor to inspect, test and certify equipment in compliance with statutory requirements (Occupational Health and Safety Act), and establishes a system ensuring that only tested and certified equipment is put into service, the employer discharges its duty of care. The employer is not required to conduct its own inspections or testing after certification by the qualified contractor, absent evidence suggesting additional reasonable steps should have been taken. The mere fact that equipment subsequently fails does not establish negligence if reasonable precautionary systems were in place. The doctrine of res ipsa loquitur does not apply where the defendant demonstrates that reasonable steps were taken to guard against foreseeable harm.

The court noted concerns about the trial judge's conduct during proceedings, including frequent interruptions, comments, and rebuking of witnesses and counsel, which could affect credibility findings. However, given the court's conclusion on the merits, it was unnecessary to address this issue. The court also made findings about the identity of the chain block tested (concluding on the balance of probabilities it was the same one that failed), and about discrepancies in witness testimony regarding whether 1-ton or 2-ton chain blocks were used, favouring the defendant's version that 1-ton blocks were used based on documentary evidence and expert testimony, though this did not ultimately affect the liability finding. The court observed that the possibility of the chain block being damaged while in Camrod's custody between 28 June and 4 July 2002 could not be excluded, particularly given expert evidence of gouges on the links suggesting abuse.

This case establishes important principles regarding the discharge of duty of care through engagement of competent independent contractors. It clarifies that where an employer takes reasonable steps to ensure safety by contracting with qualified specialists for inspection and testing of equipment (in compliance with statutory requirements), and maintains a system to ensure only certified equipment is used, it discharges its duty of care. The case demonstrates that the mere occurrence of an accident does not establish negligence where reasonable precautionary systems were in place. It limits the application of res ipsa loquitur in cases where the defendant can show it took all reasonable steps available to it. The judgment emphasizes that the test is what a reasonable person in the defendant's position would have done, not perfection or the prevention of all possible harm. It reinforces that principals are generally not liable for the negligence of independent contractors where they have exercised reasonable care in selecting a competent contractor and establishing appropriate systems.