South Africa: High Courts - Gauteng

In the matter between:

MOUNTAIN SANCTUARY PARK CC

Plaintiff

and

AVALON BRAAIS AND FIREPLACES CC

Defendant

JUDGMENT

FABRICIUS: AJ

1 .

Plaintiff is the owner of a hospitality facility in the Magaliesburg at

which wooden chalets are let to tourists.

Defendant designs and

sells freestanding fireplaces, and, in the present instance, also

installed them. It is not in dispute that defendant also professes to

be an expert in such installations.

2.

During April 2003 plaintiff, represented by O Sutton, and defendant

represented by G Watt, concluded an oral agreement, the relevant

terms of which were the following:

2.1

Defendant would sell and deliver certain freestanding

fireplaces, including two such corner places;

2.2

Defendant would install these in plaintiff's chalets, some

of them being wooden chalets, at an agreed price per

installation;

2.3

To achieve this defendant would supply all the necessary

materials and labour;

2.4

Defendant would exercise the necessary skill and care

expected of a professed expert in this field, and would

install such fireplaces without negligence;

2.5

The installations would comply with the necessary

statutory requirements in respect of such fireplaces,

chimneys and hearths, and would be fit for the purpose

installed and would be safe to use by the plaintiff's

guests.

3.

It is also not in dispute that defendant professed to be an expert in

the supplying and installation of such fireplaces, and that at the time

of the conclusion of the agreement the parties knew that such

fireplaces would be used in plaintiff's tourist business, and that

plaintiff would suffer damages if the fireplaces were incorrectly

designed or installed. Defendant duly installed six of such fireplaces,

five in wooden chalets, and one in a brick chalet, as well as installing

four hearths.

4.

One of the wooden chalets fitted with a corner unit caught fire on 30

May 2003 at about 00:30. The chalet was occupied by guests at the

time and was completely destroyed. As a result the plaintiff instituted

action against defendant alleging a breach of the agreed-upon terms

and alleging that as a result of defendant's wrongful and negligent

conduct, it suffered damages. The determination of the quantum was

separated from the present issue before me, namely whether or not

the defendant negligently breached the terms of the agreement

between the parties, and was therefore liable for proven damages

suffered by the plaintiff.

5.

Plaintiff pleaded that defendant breached its obligations in terms of

the said agreement, acted wrongfully and negligently in a number of

respects, including a failure to comply with certain statutory fire

safety requirements and regulations, installing the fireplaces too

close to the wooden combustible walls, and failing to provide or

install any or sufficient insulation.

6.

Plaintiff presented its evidence through the owner Mr Sutton, one of

the guests in the particular chalet at the time, Mrs Hammer, and an

admitted expert, Mr J Strydom, who had 24 years experience in

building technology with specific reference to fire science and

technology at the CSIR.

He conducted certain tests to which I will

refer later. The relevance of his tests and resultant conclusions were

disputed by defendant, which alleged that the particular fire had not

been caused by the fireplace and its use that particular evening.

7.

It will be convenient to first deal with the evidence of Mr Strydom. In

his summary in terms of rule 36(9)(b) the crux of his findings and

conclusions was stated to be the following:

7.1

Defendant failed to comply with certain statutory fire

safety requirements and regulations in a number of

respects;

7.2

It designed and installed the fireplaces and fluepipe in

such a manner that it caused a fire hazard to adjacent

material;

7.3

The fireplace and fluepipe was installed too close to the

combustible walls of the log cabin, without sufficient or

any insulation to ensure that they would not be exposed

to radiant heat to such an extent that it would result in

spontaneous combustion;

7.4

The installation of the fireplace was responsible for the

fire that resulted in the loss of the cabin and its contents,

and that such loss could have been prevented by

defendant with the use of appropriate material and proper

installation.

8.

The expertise of Mr Strydom was admitted by defendant.

He had

conducted a made-up fire test intended to simulate the circumstances

surrounding the relevant incident, and this had been performed

during January 2007. A summary of this experiment had been

attached to his expert notice. It was stated that the experimental set­

up consisted of a timber panel wall constructed for form a corner

section. A corner fireplace unit flue configuration was place in this

corner approximately 50mm from each wall.

The installation

resembled the actual installation that was reportedly involved in the

fire incident in question.

9.

It was stated that the test was conducted by using one commercially

purchased bag of black wattle wood (approximately 6kg). After one

hour another bag was added to the fireplace, and subsequently a

portion of a bag, approximately half by mass, was added every 30

minutes or as seemed appropriate based on the condition of the fire.

After about 75 minutes smoke was observed from behind the

fireplace which initially subsided, but reappeared after approximately

95 minutes. At this point some glowing was also observed in the

wooded wall which gradually increased from this point onwards.

After 244 minutes flaming combustion occurred on the wall on the

right-hand side. The flame propagated very rapidly and grew in

intensity which required that the fire be extinguished.

Various

temperatures were recorded during the relevant process.

10.

Mr Strydom testified that after the incident he inspected the other

fireplaces installed by defendant and assumed that they had been

installed in the same manner as the corner unit in the burnt-out log

cabin. The same people had done the installation. He stated that the

installation did not comply with the relevant statutory requirements in

terms of the National Building Regulations and Building Standards

Act, No 103 of 1977 nor the National Building Regulations Code of

Practice emanating from the Standards Act, No 30 of 1982.

11 .

There had been no proper installation as the unit had been installed

too close to the combustible wooden wall of the log cabin, quite apart

from any regulations or the code of practice. The installation was not

safe, applying common sense and his expertise and knowledge. The

defendant professed to have the necessary expertise in this regard

and therefore the installations of the other fireplaces was not

acceptable.

He had also found charring in other log cabins behind

the fireplace and the fluepipe. This was significant as it was the start

of a combustion process. Such process takes place in stages, and as

the heat increased over a period of time, glowing will start, volatiles

are given off and flaming becomes visible. The duration of such

process would depend amongst others on relevant air patterns within

such cabin, how much wood was used and how frequently, and how

far a fireplace was from the particular wooden wall. Treated wood

would also extend the duration of the process.

He himself had

bought the particular corner unit with which he conducted the

experiment from defendant. He was given no instructions as to the

installation or the safety aspects thereof. At a certain stage in the

process

flaming

would

appear within

a

matter of seconds,

accompanied by a noise akin to the blowing of wind. After the fire the

other units had been attended to and insulation had been installed. It

was put to him that defendant's witness Mr Watt would say that all

the fireplaces had been installed at a distance of 200mm from the

particular wooden walls and he stated that even if this was so, the

installation was nevertheless not safe in the absence of any

insulation.

12.

He agreed that the distance from a wooden wall would make a

difference. Firstly, it would give a wider area of exposure, and

secondly the duration of the process would be extended. Even if he

had no knowledge of the installation of other fireplaces, he would

have used a process of rational reasoning to establish the cause of

this particular fire in the light of his experience.

He would have

looked at the probabilities and all relevant facts to come to a finding.

Even an installation at 200mm would not be safe in the absence of

insulation and it was still so close that a danger would be created.

13.

Mr Sutton testified on behalf of plaintiff. He gave evidence as to the

nature of the plaintiff's business and the details about the various

chalets. The particular chalet had been completed about one week

before the fire. Defendant's Mr George Watt inspected the relevant

cabins whereafter it was decided which units be appropriate and in

which area they were to be placed. He identified certain photo's and

also identified the insulation inserted after the particular fire in the

other cabins. He was assured by Mr G Watt that the fireplace was far

enough away from the wall. He accepted all his advices. On the

particular evening two ladies and a child had occupied the cabin.

They were the first persons to have stayed there. A week prior to

that a fire had been lit to enable them to take a photograph for

advertising purposes, and this fire had burned for approximately 1

hour.

He referred to photograph exhibit G in this context, which

showed the relevant fireplace unit standing in a corner of the log

cabin, almost against the wooden wall.

14.

That particular evening he visited the guests, a fire was lit at about

18:00 using seringa wood which he had supplied, for approximately

1 % to 2 hours. Logs were added from time to time, and when he left

at about 20:00 the fire had still been burning. At about 00:30 he

received a call that the cabin was on fire and went to the particular

unit, finding the cabin aflame. One of the occupants informed him that

she had added logs to the fire before going to bed, that she head a

"whoosh" sound sometime thereafter, and saw flames behind the

fireplace. Flames were running up the thatch from behind the unit.

Objection was raised as to the admissibility of this evidence, and

after argument, and after the completion of the evidence of this

witness, I ruled that evidence was not admissible in terms of section

3 of the Law of Evidence Amendment Act, No 45 of 1988. I was not

satisfied that, in terms of section 3(1)(c)(v), the evidence could not

have been given by the person upon whose credibility the value of

such evidence pended.

I was also not satisfied that the evidence

should be admitted in the interests of justice.

15.

He admitted that he had told Mr Strydom that he had assumed that

the fireplace had caused the incident. He gave evidence about the

furniture in the cabin and its proximity to the fireplace.

At the time of

the fire the curtains portrayed in exhibit "G", were certainly not as

close to the fireplace as indicated therein. They were about half a

meter away. There were no carpets in the log cabin. He admitted that

the wooden walls had been treated for insects and the reduction of

ignition time.

16.

Thereafter Mr Strydomand Mrs D Hammer had testified. She was one

of the ladies in the log cabin that night, together with her friend who

had since moved to Germany, and her one year old son. It was a cold

evening, confirming what Mr Sutton had said. After he left they sat

around the fireplace, feeding the fire from time to time from wood

taken from the premises. They went to bed at about 23:30. She slept

upstairs with her son. She was awakened by her friend shouting

"fire". She ran to the railing to look down and saw the fire shooting

up from behind the fluepipe (colloquially speaking the "chimney") on

the wall very fast.

Her first view had been the burning of the wall

behind the fireplace towards the roof. It was very fast and very hot.

Her friend did most of the talking afterwards. Before she retired the

fire had been "a good warm fire" which they had kept going from time

to time. She had fetched about one arm full of wood, and Mr Sutton

may also have brought some at an earlier stage. The child fell asleep

earlier that evening, and thereafter she cleaned the cabin of his toys

and items that may have been lying around. The furniture was about

1 % to 2 meters away from the fireplace. She didn't see any curtains

ablaze when she looked down, didn't see any couch on fire, she

hadn't left any paper near the fire, the doors had been closed, and no

windows were open except possibly and most likely the bathroom

window. This was plaintiff's case.

17.

On behalf of defendant Mr de Wet asked for absolution from the

instance in respect of claims referred to in paragraphs 11.1 to 11.4 of

the particulars of claim. He submitted that defendant had no case to

answer regarding the cause of the fire and whether the fireplace had

at all been involved in the destruction of the cabin. He adopted the

mathematical approach, if I can call it that, in the context of the

evidence of Mr Strydom, with the result that one had to envisage the

burning of about 60kg of wood for 7% hours to achieve the relevant

result. He also referred to the fact that Mr Sutton had agreed that the

fireplace had been installed 200mm from the wooden wall. In essence

his argument was that on the evidence of Mr Sutton and Mrs Hammer

not enough wood had been burnt to cause the heat required for the

combustion process to take place. It could also not be argued that

because other fireplaces had been installed incorrectly, this particular

fireplace had been installed in the same manner.

18.

Mr Havenga on behalf of plaintiff argued that the evidence of Hammer

fitted in with that of Mr Strydom and sensibly excluded all other

probabilities as to the cause of the fire.

In his submission the

probabilities were overwhelmingly in favour of the conclusion that the

fire had been caused by the fireplace that evening. Absolution from

the instance was refused inasmuch as I was of the view that there

was sufficient evidence upon which a reasonable court could find for

the plaintiff.

See: Claude Neon Lights (SA) (Pty) Ltd v Daniel 1976 (4) SA 403 (A)

19.

Mr Strydom was recalled after the evidence of Mrs Hammer.

He

confirmed that what Mrs Hammer had seen had been in line with his

own experiment.

20.

Defendant called Mr G Watt who confirmed that defendant designed,

manufactured, marketed and installed the relevant fireplaces.

The

models and quantity of the units were according to Mr Sutton's

requirements. Mr Sutton showed him more or less where he had

wanted them, and they were delivered and

installed shortly

thereafter. They were installed 200mm from the wooden flammable

walls. He in fact had measured this distance with a measuring tape.

The hearth had been placed on the ground with the fireplace on top

at the required place, the distance was then measured and thereafter

the unit was installed, and the fluepipe fitted through the roof. The

necessary insulation was inserted in the roof area through which the

pipe protruded.

In the case of all the log cabins the unit had been

installed 200mm from the wall and in the brick cabin 50mm. He

admitted that defendant professed to be an expert in installation and

that they also designed and manufactured the units.

They were

tested. No insulation had been placed behind the fireplace. There

was only an open space between the unit and the wooden wall. He

did not dispute expert evidence that wood combusts at 220 degrees

after 15-20 minutes but that it would take a bit longer if the wood had

been treated. He knew that the unit would be installed in log cabins to

be used by tourists. No instructions at their installation or use had

been given.

He knew that the stove would give off a radiant heat,

and he took this into consideration when moving the unit from the

wall to the distance of 200mm.

He regarded this to be a safe

distance. The test results were in his view not relevant having regard

to the actual installation in the log cabin. He was responsible for the

final installation and had decided how far from the wall the unit had to

be placed.

I n the structure with the brick wall the distance has been

50mm but in all other instances, he insists, the distance had been

200mm. He denied that the installation had to comply with certain

statutory requirements although this had been admitted in the

defendant's plea. As far as he was concerned the actual installation

was safe, and therefore well within the ambit of the "Deemed-to­

Satisfy Rules" contained in Part V of the regulations relating to Space

Heating. The actual regulation and the "Deemed-to-Satisfy' rule had

not been satisfied. Actual installation was however safe and, in his

view, in sufficient compliance.

He agreed that there had been no

insulation except at roof level, but believed that the whole of the

installation had been fit for the purpose. He also agreed that the

charring of the wooden wall was part of the combustion process. He

did not agree that charring had been found in other cabins and stated

that any evidence to the contrary by Mr Strydom and Mr Sutton

should not be accepted by me. He didn't see any charring but would

have seen it if it had been there.

He could not explain why the

evidence of Sutton and Strydom had not been disputed in this

particular context. He agreed that charring was a good sign that the

fireplace was too close to the particular wall and that disaster was

waiting in that regard. He agreed that if I had to accept the evidence

of Sutton and Strydom relating to the visibility of the charring in the

other cabins, that the installation had not been safe. In the context of

the installation in the particular chalet that burnt down, he denied that

it had not been safe, that the unsafe installation caused the fire and

that defendant had negligently breached the relevant agreement. He

was asked what probably had caused the fire, and made reference to

"something" behind the fireplace that would have carried heat to the

wall.

That was the case for defendant.

21.

M r de Wet on behalf of defendant again argued that there was no

evidence that the relevant fire in the particular fireplace had caused

the destruction of the log cabin that evening. In the context of the

evidence of Mrs Hammer he submitted that logs could have been

near the fireplace, that one didn't know what had been behind the

fireplace, that charring had been irrelevant, that one did not know

how much wood had been used, and, that at the end of the day, on

the evidence of Mr Strydom, a fire had to burn consistently for 71'2

hours for the radiant heat to cause combustion. He essentially

repeated his argument propounded in his application for absolution

from the instance.

22.

I have analysed all the relevant evidence and considered it in its

totally as I do not believe that any piecemeal analysis in isolation is

justified. In arriving at my finding I proceed from the conclusion that I

believe I am justified in reaching, namely that I accept the evidence

of both Mr Sutton and Mr Strydom relating to the visibility of the

charring behind the fireplaces in the other units on plaintiff's

premises. This evidence was never challenged by defendant except

at a late stage, and then rather out of the blue as it were.

Photograph "G" also indicates charring. The inescapable conclusion

on that basis would be that the relevant installations of the fireplaces

were not safe. This defendant admitted. Added to this unsatisfactory

aspect of defendant's evidence, is the further point disputed by Mr

Watt that had previously been admitted in defendant's plea, namely

that any installation had to comply with statutory requirements.

Mr

Watt is not a credible witness in the context of these two issues. With

this in mind I turn to the evidence of plaintiff's witnesses. The

following approach is apposite:

"I accept that plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and

what can be expected to occur in the ordinary course of human affairs, rather than an exercise in metaphysics."

See: Minister of Safety & Security v Van Duivenboden 2002 (6) A 431

(SCA) at 449E-F, and

The South African Law of Evidence, DT Zeffertt, Butterworths, 2003, 306

23.

On the totality of the evidence I accept the following:

23.1

That there had been charring visible on the wooden walls

prior to that particular evening;

23.2

That charring is an important and relevant step in the

combustion process;

23.3

That such charring was caused by the fireplaces being

too close to the wooden walls and that this is not a safe

installation;

23.4

That the relevant installation must be safe having regard

to its purpose;

23.5

That radiant heat will after some time lead to combustion;

23.6

That on that particular night there had been continues

heat in the fireplace from 18:00 - 00:30;

23.7

That such radiant heat will in due course lead to

combustion depending on the:

23.7.1

extent of the heat;

23.7.2

its duration;

23.7.3

the

distance

of

the

fireplace

form

the

combustible material;

23.7.4

whether or not the wood was treated and to

which extent;

23.7.5

and to which extent there had been previous

charring.

24.

In essence I accept the opinion of the expert as to cause and effect

and in my view it is clear that if the inherent probabilities are

considered in the light of the evidence of Mr Sutton and Mrs Hammer,

that the fireplace caused the fire that evening. It is my view that even

if it is accepted that the fireplace had been installed at a distance of

200mm from the wooden wall, this was still too close to be safe in

that particular cabin without any insulation between the fireplace and

the wooden wall.

It is common cause that insulation was later on

inserted in all the other chalets. The direct evidence of Mrs Hammer

was that the fire emanated from the area behind the fireplace. There

is no reason to doubt that on the totality of the evidence. No plausible

realistic suggestions of any other cause on the probabilities was put

before me, and any such attempts by Mr De Wet on behalf of

defendant, amounted to pure speculation as to what could be

possible (rather than probable as is the test in civil litigation). I n my

view there is no evidence at all to reasonably support any other

probable cause of the fire that night.

25.

Accordingly it is declared that defendant is liable to plaintiff for the

proven damages caused by the destruction of the log cabin. Plaintiff's

notice of amendment relating to the insertion of the further paragraph

11.7 dated 5 February 2007 is granted. It is declared that Mr Strydom

was a necessary witness. Defendant is to pay the costs of this action.

H J FABRICUIS SC

ACTING JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

19 FEBRUARY 2007