Important lessons for employers and contractors can be learnt from the recent Supreme Court of Appeal (SCA) decision of Dormac Marine and Engineering v C A Henneberry [2011] ZASCA 63. The decision by the SCA should send clear signals to companies to take reasonable steps to ensure that employees working for sub-contractors receive reasonable protection against damage caused by negligence where the company itself owes a duty of care to the sub-contractors’ employees.

In this case, Mr. Henneberry sued Dormac Marine and Engineering, which operated a ship repair business, for damages for bodily injuries he sustained while working on ship. At the time of the accident, he was employed by Camrod CC, a sub-contractor that carried out the actual repairs on behalf of Dormac. The equipment and tools used by the artisans employed by Camrod when repairing ships were, however, owned by Dormac.

Henneberry claimed that Dormac owed him a duty of care to provide proper and safe equipment for use on site and that it had breached this duty by failing or omitting to provide such safe equipment. In addition, it was alleged that Dormac omitted to provide safety personnel and qualified supervisors to inspect the equipment which was utilised at the time of the incident.

In considering whether Henneberry had succeeded in establishing negligence on the part of Dormac, the Court considered, firstly, if the harm caused to Henneberry was reasonably foreseeable and, secondly, whether a reasonable person would take reasonable steps to guard against such occurrence. Lastly, it considered whether Dormac failed to take such steps.

Having accepted that a duty to take reasonable precautions existed and that the harm was reasonably foreseeable, the Court turned its attention to whether or not Dormac took precautions to guard against harm and if so, whether those precautions can be regarded as reasonable.

The Court confirmed that the legal position to be that if a reasonable person in the position of Dormac would have done no more than was actually done, there is no negligence. It confirmed further that as the foreseeable harm did eventuate, that in itself does not mean that the steps taken were necessarily unreasonable.

The Court confirmed that Dormac had sent all equipment returned to it after use by Camrod and other contractors to an independent contractor for inspection and testing before allowing them to be put to use again. By doing so, the Court held that the steps taken by Dormac to guard against foreseeable harm were reasonable.

In light of this finding, the Court held that Henneberry had failed to discharge the onus of proving negligence against Dormac, and it was therefore discharged of liability.

Notes to editors:

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Written by Pranisha Maharaj, Associate, Employment Practice, Cliffe Dekker Hofmeyr business law firm