Discuss delictual liability for pure economic loss with reference to relevant case law.

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

REPORTABLE

CASE NO: 3595/08

In the matter between:

HAINRO GROENEWALD Plaintiff

and

IRVIN & JOHNSON LIMITED First Defendant

MILLENIUM SECURITY Second Defendant

NICHOLAS JOHANNES EHLERS Third Defendant

and

MILLENIUM SECURITY Third Party

JUDGMENT DELIVERED ON 17 MAY 2017

GAMBLE J:

INTRODUCTION

[1] In this opposed application the plaintiff seeks leave to amend his particulars of claim in a trial which is pending before this court. The first defendant ("I & J") is a listed company which, inter alia, owns a mariculture facility at Danger Point Bay near Gansbaai in the Western Cape at which it cultivates abalone for commercial purposes. During 2005 it concluded a written contract with the second defendant ("Millennium") to supply security services to it at that facility.

[2] In his particulars of claim the plaintiff alleges that on 1 March 2005, while innocently swimming in the sea in the immediate vicinity of I & J's abalone facility, he was wrongfully and unlawfully assaulted by the third defendant ("Ehlers") who fired a number of live rounds at him with a firearm. The plaintiff claims that one such bullet struck him and that as a consequence thereof he suffered severe injuries to the head, and in particular the brain, which have left him permanently disabled with a number of serious sequelae.

[3] On 27 February 2008 the plaintiff issued summons out of this court claiming damages in the amount of R4, 18m for the injuries sustained in the shooting incident. The claim was brought against the three defendants jointly and severally on the basis of the following allegations in the particulars of claim:

"13.1 the Second Defendant is vicariously liable for the said delicts of the Third Defendant; and

13.2 the First Defendant is vicariously liable for the delicts of Second and/or Third Defendants."

[4] The defendants have resisted the claim with I & J represented by one set of attorneys and Millennium and Ehlers by a different firm. Both groups of defendants and the third party have filed their respective pleas to which brief reference will be made later.