Klass Looch Associates

Employer OHS Champion since 1986 

Rofdo (Pty) Ltd t/a Castle Crane Hire v B&E Quarries (Pty) Ltd [1999] (SE)

Key Words

Delict – Damages – Negligence of operator – Servant of plaintiff – Liability of defendant – Interpretation of Statutes – Persons who have right of control over machinery – Occupational Health and Safety Act 85 of 1993

Mini Summary

Plaintiff sued defendant for damages arising out of damage caused to a crane hired out to defendant. Held that plaintiff had hired the crane together with an operator. Court found that operator was the servant of plaintiff. As such defendant could not be held liable for the negligence of operator. Court further held that the term "user" as contained in the Occupational Health and Safety Act 85 of 1993, s1 included persons who had the right of control over machinery. In casu plaintiff had exercised control through the operator. Defendant granted absolution from the instance.

ZIETSMAN JP:  In terms of a written agreement entered into between the parties the defendant hired from the plaintiff a crane and an operator for the purpose of lifting a Terex truck from a low bed trailer. The crane was rated to lift a maximum weight of 20 tons and it was common cause at the trial that the weight of the Terex truck to be lifted from the low bed trailer was 10 350 kg or 10,35 tons. After the Terex truck had been lifted from the trailer and was being manoeuvred through the air the crane fell over and was extensively damaged. The plaintiff then instituted action against the defendant claiming the sum of R119 734,40 being the damages allegedly suffered by the plaintiff as a result of the damage done to the crane. The defendant opposes the action on various grounds.

It was agreed between the parties that the issues of the quantum of the damages and the merits of the plaintiff's claim be separated and I am at this stage required to decide only the merits ie whether the defendant is liable to the plaintiff for the damage caused to the crane.

It is common cause that immediately before the crane fell over a manifold block welded to a cylinder at the foot of the left front outrigger of the crane parted from the cylinder and that this resulted in the crane falling over. A crucial question is what caused the weldment that held the manifold to the cylinder to rupture. The plaintiff alleges that it was an overloading of the crane due to the crane being operated beyond its rated limits that caused the weld to rupture. The defendant alleges that the weld was faulty and that this was the cause of the accident.

The operation of such a crane, as explained by the witnesses, is that after it has been placed in position to lift a heavy object its four outriggers are extended hydraulically by the operator of the crane and are placed firmly on the ground in order to stabilise the crane. The foot of each outrigger has a cylinder with a manifold block welded onto the cylinder and a locking valve bolted onto the manifold block. When the foot is in position with the cylinder pumped full of oil the oil is retained in the cylinder and in the manifold block by the locking valve. When the lift has been completed the oil is released and the outrigger is then lifted and returned to its original position. In the present case when the weld that held the manifold to the cylinder ruptured the oil escaped from the cylinder causing the left front outrigger to collapse and the crane then fell over.

In terms of the agreement entered into between the parties the plaintiff supplied the operator to operate the crane. The defendant supplied the rigger whose job it was to direct the operation and, by means of hand signals, to give instructions to the operator. I shall consider presently the functions and the obligations of the operator and of the rigger in such a situation.

It is common cause that in every crane there is a rating chart which indicates the maximum loads that the crane is designed to lift at various radii. The radius is the distance between the centre point of the turntable of the crane and the load which has to be lifted by the crane. The radius has a direct bearing on the weight the crane will be capable of lifting. As the radius increases the load capacity of the crane decreases. The boom from which the cable which is to be attached to the load is suspended can be increased in length by the operator by telescoping the boom outwards. If the boom is angled upwards and a weight is hanging from the end of the boom the operator will extend the radius if he lowers the boom because this will have the effect of moving the load further away from the crane thereby increasing the distance between the centre point of the crane and the load. The operator will also increase the radius if he telescopes the boom outwards thereby lengthening the boom. The rating chart has two classified sections dealing with the overloading of the crane. The one section indicates what is known as the structural zone. This warns of possible structural damage to the crane if the limits set out therein are exceeded. The other section indicates what is known as the tipping zone. If the limits contained therein are exceeded the outrigger furthest from the load may lift off the ground. In an extreme case this may result in the crane falling completely over. There will be further mention of the structural zone and of the tipping zone in due course.

I intend first dealing with the factual situation applicable to the accident in this case and will thereafter consider the many legal issues and other arguments raised by counsel.

The operator who operated the crane no longer works for the plaintiff and he was not available to give evidence at the trial. This is unfortunate as his evidence might have been of considerable importance. The rigger, although he is no longer employed by the defendant, was available and he did give evidence. He is the witness Joseph Mgomazulu. A further witness who assisted with the operation, James Yonah, also gave evidence. These are the only two witnesses who claimed to have witnessed the accident. The witness Rhodes, the managing director of the plaintiff company, and the witness Michael McNamara, the defendant's plant manager, arrived on the scene shortly after the accident and from what they saw there each attempted to reconstruct how the accident in his opinion must have occurred. The witness HR Simpson testified to the servicing of the crane in question. The other witnesses, D Twigg, CI Clarke and FK Coetzee were called as expert witnesses to give their opinions as to what could have caused the weld that held the manifold to the cylinder to rupture.

Until the witness Mgomazulu gave evidence the parties were in general agreement on the positioning of the low bed trailer, the Terex truck and the crane immediately before the accident occurred. The Terex truck was more or less the same width as the trailer but it was not as long as the trailer. There was much speculation as to the position of the Terex truck on the trailer. At one stage it was the defendant's case that the back of the Terex truck extended over beyond the back of the trailer. The plaintiff's expert witness in his initial calculations assumed that the Terex truck would have stood more or less in the middle of the trailer and that the back of the truck would have been approximately 1½ metres forward of the back of the trailer. Both Mgomazulu and Yonah stated that the back of the Terex truck was level with the back of the trailer and this position was eventually accepted by both counsel as being probably correct.

Until Mgomazulu gave evidence it was accepted by all parties that the crane was placed at the right rear of the trailer with its left front outrigger close to the right rear wheel of the trailer, and with the crane facing in the same direction as the trailer. Mgomazulu, the rigger who controlled the operation, stated that the front of the crane faced directly towards the right rear wheel of the trailer. He was directly contradicted by Yonah and here again it was accepted by both counsel that Mgomazulu was wrong and that in fact the crane faced in the same direction as the trailer. What is perhaps significant was Mgomazulu's statement that if the crane was placed as testified to by Yonah, and accepted by both counsel, the distance between the centre point of the crane and the weight to be lifted would have been greater and the radius, bearing in mind the weight to be lifted, would have exceeded the rated capacity for the crane.

Much evidence and argument was directed towards the determination of the radius and the question whether the rated capacity of the crane, in terms of its rating chart, was exceeded. In order to determine the radius it was necessary to attempt to establish the correct position of the Terex truck on the back of the trailer, the position of the crane and the centre of gravity of the load that had to be lifted. In his initial calculations the plaintiff's witness, Clarke, assumed that the Terex truck was positioned forward of the rear of the trailer, and the defendant's witness, Coetzee, assumed that the rear of the Terex truck overhung the rear of the trailer. Eventually both parties accepted that the rear of the Terex truck was more or less level with the rear of the trailer. Clarke attempted as far as possible to assess the centre of gravity of the load to be lifted. Coetzee did not make a careful assessment of this. Clarke made various drawings to scale and took careful measurements. Coetzee was told that at the start of the lift the boom of the crane extended directly over the left front outrigger of the crane and he based his assessment purely on this information. On this aspect of the case Clarke's evidence is clearly to be accepted in preference to the evidence given by Coetzee. It was conceded by both witnesses that it would be impossible ex post facto to determine with precise accuracy the exact radius at the beginning of the lift but according to Clarke it could not have been less than 5,7 metres. At that radius the weight to be lifted exceeded the rated capacity of the crane and brought it within the topping zone as shown on the crane's rating chart.

Conflicting evidence was given by the plaintiff's witness Rhodes and the defendant's witness McNamara concerning a subsequent lifting of the load after the accident had occurred. The rigging holding the load was still in position when Rhodes and McNamara arrived on the scene, and according to McNamara when the load was lifted from the ground it came up level to the ground. Rhodes, on the other hand, stated that the front of the Terex truck lifted first, and his opinion was that the rigging had been incorrectly placed on the Terex truck by or under the supervision of the rigger, Mgomazulu. On the strength of this observation Rhodes based his theory as to what happened. His theory was that when an attempt was made to lift the Terex truck from the low bed trailer the front wheels lifted first and the truck then slid off the back of the trailer, dropped about 6 feet onto the ground and pulled the crane over. Rhodes was also of the opinion that the load was well out of radius and that the cable hanging from the boom was also not hanging perpendicularly. This would have added to the tendency of the truck to slide off the back of the trailer. There was no other evidence to back Rhodes' theory. McNamara stated that when he and Rhodes witnessed the lifting of the load after the accident it lifted level to the ground. Both Mgomazulu and Yonah stated that when the operator first attempted to lift the truck from the trailer the back of the truck lifted first. The load was then lowered so that the front chains could be adjusted and after that the truck came up level from the trailer. A further factor that tends to negate Rhodes' theory of the Terex truck falling from the trailer and pulling the crane over is the evidence of both Mgomazulu and Yonah that a bang was heard and "smoke" was seen coming from the left front outrigger before the crane started to fall over. Their evidence is supported by the fact that the weld holding the manifold block to the cylinder on the left front outrigger in fact ruptured at some stage. This would have caused the hydraulic oil, which was under pressure in the cylinder, to escape and this in turn would have given the impression of smoke coming from the outrigger.

On the evidence it must, in my opinion, be accepted that because of the weight of the load to be lifted and the distance between the centre point of the turntable of the crane and the load to be lifted (ie the radius) the rating capacity of the crane, in terms of its rating chart, was exceeded resulting in an overloading of the crane within the listed tipping zone. This was exacerbated when the operator extended the length of the boom but the overloading was still within the tipping zone. When the operator tried to manoeuvre the load the weld holding the manifold block to the cylinder on the left front outrigger ruptured and the oil in the outrigger cylinder escaped. This caused the outrigger to collapse and the crane to fall over.

If these are the correct factual findings it becomes necessary to ascertain precisely what caused the weld to rupture and who in law is to be held responsible for the accident. It will be convenient first of all to consider the terms of the contract entered into by the parties.

The contract is attached as annexures A1 and A2 to the plaintiff's particulars of claim. Annexure A2, entitled Conditions of Contract, is divided into sections A, B and C. It is common cause that sections B and C only are applicable. I now quote what appear to me to be the terms relevant to this case ("CCH" is the plaintiff and the Customer" is the defendant):

"CLAUSE C4. WARRANTY: CCH warrants that the equipment is substantially in good working order and is substantially fit for the purpose for which the Customer has indicated that the equipment will be used.

CLAUSE B3.2. USE OF EQUIPMENT: The Customer undertakes that it will use or permit the equipment to be used only in a workmanlike manner and it will not instruct or permit the operator to use the equipment beyond its rated capacity and specifications …

CLAUSE B5.1. OWNER'S OPERATOR: If the equipment is supplied with CCH's operator, then while on the site the operator shall be under the sole and absolute control of the Customer which warrants and undertakes that it will give to the operator clear and specific instructions and directions regarding the nature and manner of all work to be performed by the Operator and the equipment on site.

CLAUSES C8.1 AND C8.2. CARE OF EQUIPMENT:

C8.1: The Customer shall be responsible for all expenses arising from the breakdown, loss of or damage to the equipment occurring through the Customer's negligence, misdirection or misuse …

C8.2: Save for fair wear and tear, the Customer shall be responsible for and indemnifies CCH against any loss or damage to the equipment howsoever caused, and this indemnity shall extend to consequential loss.

ANNEXURE A.1 contains the following special condition: You are required to take out full insurance cover for all your contingencies including damage to our crane."

In paragraph 12 of its amended particulars of claim the plaintiff alleges that the defendant failed to effect the required insurance in terms of its obligation to do so. However at the trial plaintiff's counsel advised that this allegation would not be pursued by the plaintiff.

The plaintiff bases its claim against the defendant both on delict and on contract. In its claim based on delict the plaintiff alleges that the defendant, acting through its servants, gave incorrect instructions for the positioning of the crane and the manner in which the crane had to be operated, negligently and incorrectly positioned the slings on the load to be lifted, caused the crane to be operated in a dangerous and negligent manner and failed to take adequate precautions to prevent the accident. In its claim based on contract similar allegations are made and the plaintiff pleads further that even if the defendant or its servants were not negligent the defendant is still contractually obliged to compensate the plaintiff for the damage caused to the crane. I deem it unnecessary to deal separately with the plaintiff's delictual claim and I will now consider the effect of the contractual clauses quoted above.

An important factor is the role played by the operator of the crane. I have made the factual finding that the rating capacity of the crane was exceeded bearing in mind the weight to be lifted and the distance between the centre point of the crane and the load to be lifted, and that this radius was increased when the operator extended the length of the boom. The question which arises is whether the operator was at the time acting as the servant of the plaintiff or whether he was acting as the defendant's servant. If he was acting as the defendant's servant the plaintiff will still have to prove that it was his action in causing the overloading of the crane, or in increasing that overloading, that caused the weld to rupture and the crane to fall over.

Clauses B5.1 and B3.2, read together, provide that while on site the operator will be under the sole and absolute control of the customer and that the customer will not instruct or permit the operator to use the equipment beyond its rated capacity.

In the case of RH Johnson Crane Hire (Pty) Ltd v Grotto Steel Construction (Pty) Ltd 1992 (3) SA 907 (C) the plaintiff had, as in this case, let its crane with an operator to the defendant. While the operator was manoeuvring a load on the instructions of the defendant's rigger the crane fell over a precipice and was damaged. The plaintiff claimed damages from the defendant but failed in his claim on the ground that the crane driver (operator) was the servant of the plaintiff and not the servant of the defendant at the time when the accident occurred. The court held that in the case of a skilled worker such as a crane driver, who is hired out with the crane, it is not easy to prove that control over the manner in which he operates his crane has been transferred to the hirer of the crane. In this case the plaintiff based his claim on the principle of vicarious liability but the court held that although the defendant's rigger controlled the operation, in that he gave instructions to the operator as to what he should do and when and how he should do it, he did not have the right to control the manner in which the operator operated his crane. The learned judge did however state that the position might be different in a case where in terms of the contract entered into between the parties the power of supervision over the manner in which the servant does his work is transferred from the master (ie the general employer of the operator) to the hirer. The question in our present case is whether the fact that the contract specified that while the crane was at the defendant's site the operator would e under the sole and absolute control of the defendant, made the operator the defendant's servant at the time when the accident occurred.

In the RH Johnson Crane case the learned Judge referred inter alia to the English case of Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd and McFarlane 1946 (2) All ER 345 (HL). In that case also a crane together with a skilled operator was hired out to the defendant. It was a term of the agreement between the parties that the driver, whilst on hire, would be the servant of the defendant. Owing to the negligence of the driver of the crane a checker was injured and the question to be determined was whether the general employers of the crane driver or the hirers were liable for the driver's negligence. Despite the term of the agreement referred to above the court held that the driver remained the servant of his general employers and that they were liable for his negligence. The court held that this was the case because although the hirers could tell the driver where to go and what to carry, they had no authority to give directions as to the manner in which the crane was to be operated.

Other English cases relevant to the issue are Chowdhary and another v Gillot and others 1947 (2) All ER 541 (K), The Panther and the Ericbank, Owners of the Steam Barge Trishna and others v Owners of the Motor Tug Panther and others 1957 (1) All ER 641 (PDA), Gibb v United Steel Companies Ltd and another 1957 (2) All ER 110 and Bhoomidas v Port of Singapore Authority 1978 (1) All ER 956 (PC). In these cases the courts have emphasised the fact that a general servant remains prima facie the servant of the master who pays him, and that the burden of proof that the servant, and not merely his services, have been transferred is a heavy one. It is not sufficient for the plaintiff to prove that the task to be performed was under the control of the temporary employer. He has to prove that the temporary employer also had the right to control the method in which the task was to be performed.

In the Chowdhary case the learned judge states, at 544, that the burden of proof to prove that there was a transference of the servant as opposed to the mere benefit of his services is a heavy one, and that it is likely to be heavier where the man plus the machine he operates is hired. In the Panther case the following statement taken from the judgment of Lord Porter in the Mersey Harbour Board case is quoted with approval (on page 647):

"Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that the general employer continues to control the method of performance since it is his crane and the driver remains responsible to him for its safe keeping."

The South African case of Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA) is a case where the hirer and not the general employer was held to be liable for the negligence of the employee. In that case a labour broker had supplied the temporary employer with 40 lorry drivers. One of the drivers had negligently caused damage to a third party. The court found that the temporary employer had had the only say as to how the driver should perform his duties and that the temporary employer was therefore liable for the driver's negligence. The court went further and decided that the "control test" was not the only test to be applied but that all relevant factors had to be taken into account in order to determine who, as a matter of policy and fairness, should be held to have been most closely associated with the risk-creating act. The facts of this case are clearly distinguishable from the facts in our present case where a driver and the crane were hired out, and where the driver would in the normal course of events be responsible to his general employer for the safe handling of the crane.

Applying the principles set out in the abovementioned cases to the facts of the present case it is my view that despite the clause in the contract providing that the operator would be under the sole and absolute control of the customer the operator had a duty towards his general employer to ensure that the crane was operated properly and not negligently, and that the temporary employer (the defendant), although he had full control over the operator in the sense of being able to instruct him as to what work had to be done with the crane, and where and when that work had to be done, did not have the right to control the manner in which the operator operated the controls of the crane and performed the work that had to be done. In the present case the defendant's rigger was also a qualified crane driver but this will not always be the case. The contract entered into by the parties is a printed contract of which only certain portions are relevant to the parties to this case. The same contract will no doubt be used when a crane with a driver is leased to a hirer who does not have a qualified crane operator in his employment, and I cannot accept that in such a case the hirer who has "sole and absolute control" of the operator will be liable to the owner of the crane if the operator negligently damages the crane while it is on the customer's site.

My conclusion is that if the crane was damaged because of negligence on the part of the operator the defendant cannot be held liable for the damage merely because the contract provided that it had sole and absolute control of the operator while the crane was on its site.

The contract provided further that the customer (defendant) would not instruct or permit the operator to use the crane beyond its rated capacity. In terms of my factual findings the crane was in fact used beyond its rated capacity. Two problems arise here. The crane should, in terms of the regulations promulgated under the Occupational Health and Safety Act 85 of 1993, have been fitted with certain safety equipment which would have indicated to the operator of the crane the radius of the crane and the weight he was intending to lift with the crane. He would then have seen immediately that the crane was being operated beyond its rated capacity. There should also have been a bell or buzzer system that would have issued the same warning to the operator. The crane was not fitted with this safety equipment and the question is whose fault was it that the crane was being used without the necessary equipment. Mr Goosen for the plaintiff has submitted that it was the defendant's obligation to see to it that the crane had the necessary safety equipment. His submission is based upon the fact that the regulations require the "user" of the crane to ensure that the crane has the necessary safety equipment and in terms of section 1 of the Act "user" does not include a lessor of the equipment. The definition of "user" is the following:

" 'User', in relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery."

"User" does include the person who has the right of control over the use of the machinery, and where a lessor of the machinery provides his operator to operate his machinery he, in my opinion, is a "user" of the machinery. It is clear from the evidence that lay people with no knowledge of the machinery sometimes hire cranes with operators to perform tasks on their property for them. It would be startling if it was the intention of the legislator to make them, as mere hirers, liable for the fact that the machinery used for their benefit was not equipped with the required safety equipment.

If it was not the defendant's fault that the crane did not have the equipment which would have warned the operator, and presumably also the defendant's rigger, that the crane was being used beyond its rated capacity, can it be the defendant's fault that the crane was so used?

The further problem arises from the fact that after the operator had lifted the load from the low bed trailer he extended the length of the boom and this increased the radius and therefore the overloading of the crane. It is clear from the evidence of Mgomazulu and of Yonah that the operator was not instructed or permitted by the defendant to extend the length of the boom. In fact they tried to stop him from doing so. If it was the negligence and fault of the rigger that the crane was overloaded at the start of the operation how is one to determine whether it was this fault on the part of the rigger or the operator's fault in taking the crane further beyond its rated capacity that caused the accident?

Before dealing with the question of causation I intend dealing with Mr Goosen's submission based upon clause C8.2 of the contract. This clause must, in my opinion, be read together with clause C8.1. The heading to these two clauses is Care of Equipment. C8.1 provides inter alia that the customer shall be responsible for all expenses arising from damage to the equipment occurring through the customer's negligence, misdirection, or misuse of the equipment. C8.2 provides that save for fair wear and tear the customer shall be responsible for any loss or damage to the equipment however caused. In paragraph 11 of its amended particulars of claim the plaintiff pleads as follows:

"11. Even in the event of the above Honourable Court finding that the Defendant was not negligent as alleged (which is denied), the Defendant is contractually obligated to compensate Plaintiff for the damages sustained including consequential loss as set out above."

The submission is that whatever the cause of the accident might have been the defendant is liable to the plaintiff for the damages suffered by him because of the wording of clause C8.2. If this clause is to be given the wide meaning contended for by Mr Goosen it is difficult to see why clause C8.1, which refers to negligence on the part of the customer, was included in the contract. In my opinion clause C8.2 must be given a restricted meaning in the light of the heading to clause C8 and the wording of clause C8.1. In my opinion the intention was to make the defendant liable for damage to the equipment resulting from the defendant's failure to care properly for the equipment while it was under its control, and not to make the defendant liable for the negligent acts of the operator of the crane or for the plaintiff's failure to provide a crane that was fit for the purpose for which it was hired. If I am correct in this interpretation this clause, on its own, does not assist the plaintiff in its claim against the defendant.

If my conclusions thus far are not correct, and if a correct finding would be that the defendant is responsible for the fact that the crane was used beyond its rated capacity, and for the fact that the operator exacerbated the problem by extending the length of the boom, the question still to be determined is whether the plaintiff has succeeded in proving that this overloading of the crane was the cause of the accident.

In terms of clause C4 of the contract the plaintiff warranted that the equipment was substantially in good working order and was substantially fit for the purpose for which it was hired by the defendant. The defendant's argument is that the equipment was not in good working order and was not fit for the purpose for which it was hired because the weld attaching the manifold block to the cylinder of the left front outrigger was defective. It is clear from the evidence that the weld ruptured before the crane started to fall over, and the question is whether the plaintiff succeeded in proving that this would not have happened if the crane had not been operated beyond its rated capacity. Mr Goosen submits that this has been proved on a balance of probabilities. He points to the fact that this crane had been in regular use for many years prior to the accident without the weld giving way. He points further to the fact that although the crane was used beyond its rated capacity the weld did not give way when the load was first lifted from the trailer. The operator then extended the boom and the weld still held firm. It was only when the operator attempted to manoeuvre the load off the trailer that the weld ruptured. Mr Goosen submits that these facts prove, on a balance of probabilities, that if the crane had not been overloaded the weld would not have faulted.

Much evidence was led on the question whether the welding had been tampered with at some stage, and in particular whether there had been a rewelding of the manifold block onto the cylinder. The defendant's expert, Coetzee, was convinced that a rewelding of the weld had taken place. The plaintiff's witnesses Twigg and Clarke could find no traces of a rewelding having taken place.

Coetzee testified that the welding, if properly done, is capable of withstanding double the load which the crane is capable of lifting. He stated further that in the hundreds of accidents he has investigated he has never experienced the rupture of this particular welding. He stated that when a crane is overloaded in a manner which takes it into the tipping zone as indicated on the crane's rating chart the crane will tip, and might even tip right over, but no structural damage will be done to the crane. If, on the other hand, the crane is overloaded in a manner which takes it into the structural zone as indicated on the chart, structural damage may occur. Where this does occur, in 90% of the cases he has investigated the damage was done to the boom of the crane. Where damage has been done to the outrigger equipment the cylinder has been distorted or the bolts fixing the locking valve to the manifold block have sheared. In no case that he has seen or heard of has the weld ruptured. This evidence by Coetzee is not disputed.

In the present case the crane was operated within the tipping zone but not within the structural zone as indicated on the chart, and no one could explain why the weld ruptured. The only conclusion one can come to on the evidence is that the weld was for some reason or other defective. If this is so can it be said that the accident would not have occurred if the crane had been operated within its rated capacity, and that the cause of the accident was therefore the use of the crane beyond its rated capacity?

In my opinion, even if I am wrong in respect of my other conclusions mentioned above, the plaintiff has still failed to prove that the fault of the defendant or of its employees in overloading the crane was the cause of the failure of the welding and the resulting accident.

The plaintiff has, in my opinion, failed to prove exactly what caused the weld to rupture and he has therefore failed to prove that it was the negligence or the fault of the defendant that caused this to happen. A correct result will in the circumstances, I believe, be one of absolution from the instance.

In the result the defendant is absolved from the instance and the plaintiff is ordered to pay the costs of the action.