Delictual Liability
The case of A Gibb & Son (Pty) Ltd v Taylor & Mitchell Timber supply Co (Pty) Ltd 1975 (2) SA 457 (W) (hereinafter “the Gibbs case”) dealt inter alia with negligence and delictual liability in respect of product liability for defective merchandise, whether such liability existed in South African law and if so what needed to be proved to in order to claim damages in respect of same.
Facts
A Gibb & Son (“the Plaintiff”), a building company contracted to erect scaffolding at the building site located in Johannesburg. In order to build more scaffolding the Plaintiff ordered extra saligna scaffolding planks from a merchant seller Mitchell Timber Supply (“the Defendant”). The Plaintiff accordingly received the planks and upon receipt only checked
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The court established in its findings that the enquiry should begin with the question of whether the dilgens paterfamilias (a person's responsibility both personally and professionally) in his position would have inspected the goods at all. If this inspection falls short of the requisite standards then becomes a question with many aspects, but is a question that only arises after the plaintiff has proven that the first question should be answered in the …show more content…
the kind of trade), the methods of employed and the expectations of those who ordinarily deal in it. Such a study may reveal that the specific dilgens Mercator (diligent merchant) would inspect only some of his merchandise and would carry out his inspection more comprehensively in respect of some if his goods than others. The Court established that where the goods being sold are not something inherently dangerous but where potential harm caused by defects in them depends on how it us used the study of the market place must be refined to a question of whether the dilgens Mercator anticipates that, as probability, the user will examine the goods before using them in the manner in which they are ordinarily used and thereafter use them as such. If he does anticipate this then such an examination will probably reveal any defects then Aquilian liability does not attach to a defendant in a comparable situation. The Merchant then does not foresee danger and when it is not foreseen, there is nothing to guard against, and the duty to take this kind of care is not
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