17 Mr Dreyfus, for Major, submitted, as I have indicated, that his Honour's decision was vitiated by the failure to provide adequate reasons for the conclusion that there was no breach of the terms that his Honour found were implied into the agreement between the parties. In particular, it was said, his Honour did not deal in his reasons with Major's principal case that was put through the evidence of Aughton and Naudé, which was essentially uncontradicted, and his Honour also did not explain why he either rejected their evidence or otherwise effectively disregarded it.
18 It is clear enough that, ordinarily, failure by a judge to explain adequately the reasoning process that has led to the ultimate conclusion constitutes an error of law and vitiates the decision, although whether the reasons are adequate will depend on all the circumstances.[7] It is also apparent from the authorities that such error is not confined to failure to set out sufficiently the actual process of reasoning that makes it plain to the parties, and to an appellate court, how the judge arrived at the impugned conclusion. Even where the judge's reasons are logically structured, in the sense that they make it apparent how the judge reasoned to the impugned conclusion, the reasons may nevertheless be considered inadequate if they fail to deal with a key element of a party's case or to explain why critical evidence has been effectively rejected.[8] For example, where parties have advanced competing reasons and analyses in respect of critical aspects of the case, as will often be the situation where the dispute involves expert evidence and technical matters, the reasons should address the claims that have been put forward and explain why one case is preferred over the other[9] or why critical points have been resolved in the way that they have.[10] This is but an instance of the rule that the basis of the decision must be apparent.
19 In the present case, regrettably, his Honour did not address or explain why he rejected, as he must have done, Major's principal case. The learned judge seems to have concentrated only on the cause of the failures of the elements in 2001 and concluded, as has been noted, that because those failures were the result of matters beyond Helios' control the goods produced by it were fit for the relevant purpose. But even if one accepted the correctness of the conclusion that the early failures were not the fault of Helios, by itself, that does not address or deal with the reasons given by Aughton and Naudé as to why the elements were not fit for the relevant purpose.
20 Critically, I think, the learned judge did not provide a rational and analytical explanation[11] of the basis for his preference of the evidence of Wishart and Walton and why he disregarded the Aughton/Naudé evidence. It may be assumed for present purposes that when his Honour said that, in coming to his conclusion, he considered "a number of expert reports tendered by both parties", he did not overlook the Aughton/Naudé material. But if his Honour considered their reports, it is plain that he did not act on their contents and the necessary inference must be that he rejected the material. The real problem, however, lies not in the fact that this evidence was rejected, but in the failure by his Honour to explain why he adopted that course. This is particularly so bearing in mind that the evidence was effectively unchallenged. For all the Court knows, his Honour may have misunderstood the evidence. If that is unlikely, as I think it is given his Honour's experience, then, as I have said, he must have rejected it for reasons that cannot now be examined or analysed. It is not sufficient, in a case such as the present, for the trial judge merely to say that he or she prefers the evidence of one expert to that of another. Perhaps less explanation is warranted in the case where two witnesses give opposing versions of their recollection of an event and the resolution of that conflict is to be determined by reference to the question of credibility. But in a case such as this, where there was no issue of credit and the acceptance or rejection of the evidence involved an intellectual exercise, the judge's preference for the evidence of one expert over that of another should be explained, a fortiori, where the judge decides to reject the evidence of a critical expert that is essentially uncontradicted. This does not mean that the reasons for the rejection have to be lengthy, but they must be sufficient to enable an objective reader to understand why that course was adopted in order to determine whether it was based on flawed reasoning by the judge. As I have said, I think that his Honour failed to discharge that obligation, thereby impermissibly depriving the parties and the appellate court from assessing the correctness or otherwise of the ultimate conclusion.
21 I consider that his Honour's failure to deal with Major's principal case going to the question whether the heating elements breached the implied terms, and to explain the basis on which he rejected the evidence of Aughton and Naudé, constitutes such a breach of the obligation to provide adequate reasons as to vitiate the decision. It follows that, in my view, for this reason alone, his Honour's decision should be set aside.
Findings against evidence
22 There is another reason why I think that his Honour's decision cannot stand. In my view, for the reasons that I give below, I consider that his Honour's conclusion was against the evidence, or the weight of it. Given that this appeal is not limited to a question of law[12] and, in the circumstances, this Court is in as good a position as the trial judge to decide the matter, we should proceed to correct the error[13] and finally determine this aspect of the case. The resolution of the issues here do not turn on questions of credibility of witnesses but involve, as I have noted, an intellectual exercise of determining which of the competing technical evidence, most of which was presented in the form of expert reports and statements, should be preferred. There is nothing in the material that shows that the learned trial judge enjoyed an advantage over the appellate court in analysing such evidence and drawing inferences from it.[14] And a determination of the matter by this Court will obviate the need for the parties to incur yet another expensive trial given that, as Ashley J.A. observed during the hearing of the appeal, the amount at stake has been dwarfed by the legal fees.
23 As I have already indicated, on the issue of whether the elements were fit for the purpose in question, the relevant evidence was all one way. For the purpose of resolving Helios' claim, one can put aside the evidence relating to the causes of the failures in 2001 when the salt baths were operating at approximately 400oC because the unchallenged evidence of Aughton and Naudé was that the elements could not operate at the stated electrical power output and maintain the salt solution at a temperature of 550oC. The witnesses demonstrated that the units, operating with a power load of 20 kw per element bundle, would necessarily fail because the temperature tolerance of many of the components that constituted the unit would be exceeded. This was amply demonstrated by the table that formed part of Aughton's expert report of 31 March 2004, to which reference has already been made.[15]
24 As has been noted, the correctness of this evidence was not contradicted. Rather, what was principally said for Helios below, and repeated before us, was that the Aughton/Naudé opinions were based on the premise that the units would be required to operate at full power all the time, whereas the reality was that this would be required only for some of the period. It was also said that the specifications provided by Major to Helios did not state that the units would have to operate at full power all the time at a temperature of 550oC or the period over which the temperature had to be raised to that level. But the short answer to this claim, as Mr Dreyfus correctly said, is that the specifications stipulated that each of the units be capable of operating at 20 kw, in other words, at full power, in a temperature environment of 550oC, if required. The fact that no operating time limit was stipulated in the specification, it was pointed out by Major, works against Helios' response because it makes plain that there were no limitations as to the period during which the unit had to be capable of operating at the nominated electric power output. Thus, in order to meet the stipulated purpose, the units had to be capable of operating at full power in a salt bath that had a temperature of 550oC and the uncontradicted evidence was, as I have said, that they were not capable of performing that function. At the very least, the units would have to operate at full power at the given temperature environment at least for some time and the evidence was that they were simply not capable of doing so (because in that environment the temperature tolerance of some of the component parts of the elements would be exceeded).
25 It was also said for Helios that his Honour was entitled to reject Naudé's evidence, and that we should do likewise, because his calculations were made on five stated assumptions that were not made out and, therefore, his evidence was relevantly unsupported and should be rejected. It is not necessary to set out the five assumptions in detail. It is sufficient to note that the first assumption - that the electrical heat input to the elements is 20 kw at a bath temperature of 550 oC - does no more than reflect Major's specification of 30 July 2001. The remaining four assumptions relate to matters of a technical nature that were within the sphere of Naudé's expertise, as to which he was not challenged, and, it seems, they were not in issue between the parties. Thus, he was entitled to make all the five assumptions on which his evidence was premised.[16] Moreover, there was no objection to the admission of Naudé's opinion into evidence and it is now too late for Helios to contend that it was worthless because the assumptions had not been made out.[17]
26 I mention for completeness that Walton said in his evidence that even if the units could not operate at the stated temperature environment at full power, temperature controls could have been installed by Major so as to reduce the power when the elements reached a certain temperature, thereby removing the risk of their breakdown. It may be accepted, for present purposes, that such temperature controls could have been installed by Major, but that does not detract from its entitlement under the contract to receive from Helios heating elements that would operate as specified.
27 Thus, I consider that his Honour erred in concluding on the evidence that the heating elements were fit for the relevant purpose and were of merchantable quality. In my view, having regard to the evidence, I consider that Helios has failed to establish that the heating units that it supplied to Major were fit for the specified purpose or of merchantable quality, so that its claim for payment in relation to them should fail. Even if Major had accepted the heating elements, at the time of delivery they were worthless and it is therefore not obliged to pay the purchase price claimed.
Counter-claim
28 I now turn to Major's counter-claim for damages, being its costs of repairing the failed heating elements in 2001. At one stage, it was suggested by Mr Dreyfus, as I understand him, that the parties had effectively agreed that if Helios failed to establish that the elements were fit for the relevant purpose, Major would be entitled to judgment on its counter-claim in the sum of $30,000. But the transcript makes it plain, I think, that the parties only agreed that if Major succeeded in establishing that it was entitled to damages on its counter-claim the amount would be $30,000. In other words, the agreement between the parties in this respect did not go beyond settling the quantum, should the entitlement be made out. In the end, I think Mr Dreyfus accepted this position.
29 As has been mentioned, the damages that Major sought by its counter-claim were essentially the wasted repair costs it incurred in respect of the heating units that failed in 2001. In order to establish entitlement to such damages, Major had to show that the breach of contract by Helios was a cause of that loss.[18] The breach on which Major relevantly relied was the failure by Helios to produce heating units that were fit for the particular purpose and of merchantable quality, more particularly, failure by it to build units with component parts that could withstand the operating temperature of the solution in the baths. But the evidence did not establish that such a breach was a cause of the breakdowns in 2001 and thus, causative of the wasted expenditure on repairs. The evidence of Aughton and Naudé, on which Major heavily relied, did not demonstrate that the elements failed in 2001 for that reason. In a sense, that is unsurprising given that their evidence dealt with the situation where the temperature of the solution was 550oC whereas in 2001, when the units failed, the temperature of the solution was in the order of 400oC, and Aughton and Naudé were not asked to consider whether there would necessarily be a breakdown of the elements at that temperature.
30 Moreover, I consider that it was open to his Honour to find, as I have mentioned, that the early failure of the heating units was due to a number of factors which were not within the control of Helios. I have mentioned these matters earlier in my reasons.[19] It was said for Major, however, that the evidence did not support such findings, particularly in relation to contamination. It was claimed that even Helios' principal witness, Walton, said that gross overheating was the likely cause of the failures. It was also put that his evidence on contamination was confusing and unconvincing. In that context, counsel pointed to Walton's concession in cross-examination that several of the materials that he said were contaminants were not of that character. Moreover, said Mr Dreyfuss, Michael Wright Wadsley ("Wadsley"), who was better qualified to give scientific evidence about contamination of materials than Walton, concluded that the contaminants identified by Walton were likely to have been present during the manufacturing process by Helios, or were associated with materials in the salt baths. Major argued that, in any event, after it improved its welding techniques, salt was not observed in the casings. Counsel also criticised the evidence of Wishart, which supported that of Walton on this issue, on the ground that he never identified the contents and source of the contaminants he claimed that he saw.
31 Notwithstanding these and other criticisms of the Helios material, I consider that there was evidence on which his Honour could properly find that the breakdowns were caused by circumstances that did not amount to breach by Helios. For example, Cardozo's reports of 28 November 2001 and 4 June 2002 which deal, amongst other things, with matters pertaining to the failure of the elements, state that traces of salt, albeit in very small quantities, were found in the elements and he seems to have accepted that this was due, at least on the early occasions, to Major's inadequate welding of the casings. The reports also speak of visual evidence of damage, apparently caused by ceramic fibre paper that had been inserted by Major (and which was later removed from the units). There was also a significant amount of evidence from Wishart of carbon and salt contamination in the elements. Furthermore, the reports of Raymond Charles Osterberg ("Osterberg"), an electrical engineer, dated 3 March 2004 and 21 March 2004, that were prepared for Major and tendered in evidence, accepted that smoke and salt contaminated the units at the time of the initial failures. And, although it might be accepted for present purposes that, as Wadsley said, not all the material that Walton identified as contaminants were in that category, a significant number of them were. It is true that there was evidence of overheating which was said to have resulted in, or contributed to, the breakdowns, but it seems that the overheating was caused by the presence of contaminants in the units rather than by the component parts exceeding their respective heat tolerances at the temperature of 400 C. There was also evidence that the cause of the failures was largely, if not wholly, attributable to faulty work by Major. This was the thrust of the evidence of Wishart and Walton. Moreover, Osterberg said in his report of 3 March 2004 that the root cause of the insulation breakdown was salt contamination of the element tube, which was the consequence
of failure by Major to provide a contamination free environment for the open ended elements.
32 I mention for completeness that, even if it is arguable that some of the failures that occurred in 2001 were caused by defects in the units for which Helios was responsible, so that Major might be entitled to recoup its repair costs attributable to those faults, there was no attempt before us, or below, to show that any particular portion of the agreed $30,000 reflected the repair costs that related to particular failures for which Helios was arguably responsible. That is unsurprising given that, as I have explained, Major adopted a broad brush approach to its case on the counter-claim, claiming that it was entitled to recoup the repair costs in respect of the 2001 breakdowns because the units would have failed in any event.
33 In the circumstances, I consider that his Honour's orders that there be judgment for Helios and that Major pay its costs of the claim and counter-claim should be set aside. I would also set aside his Honour's certifications in paragraphs 4 to 7 of the order and, subject to hearing the parties, I would make no order as to costs of the trial or the appeal.