TACHIONA & ANOR v RAILWAYS OF ZIMBABWE 2010 (2) ZLR 140 (H)

Flynote

Carrier - liability - carriage by land - goods lost through gross negligence of carrier or through theft by its employees - carrier's liability - extent to which carrier may exempt itself from liability

Contract - carriage - clause limiting carrier's liability - need to bring such clause to other party's attention - effect of failure to do so adequately

Contract - carriage - when a consumer contract - unfair contract - carrier limiting amount of compensation to a sum based on weight of item carried - contract expressed in language not readily understood by other party - contract referring to another document - information being conveyed in vague and uninformative fashion

Headnote

The plaintiffs entered into a contract of carriage with the defendant in terms of which the defendant was to transport two pieces of furniture on behalf of the plaintiffs from Harare to Bulawayo. One only piece was delivered; the other was probably stolen from the defendant in transit by the defendant's employees. The plaintiffs claimed the current market value for the lost item, as compensation; alternatively, they claimed specific performance. The consignment note that was issued to and signed by the first plaintiff for the transportation of the goods in question had a provision to the effect that the consignment was in accordance with the bye-laws, regulations and conditions published in the current edition of the Official Railway Tariff Book. This book was not shown to the plaintiff at the time. The defendant claimed that the amount of compensation due was based on the item's weight, and tendered an amount which was below the item's market value. The plaintiffs argued that, while they a voluntarily signed the consignment note, the consignment note did not contain enough details concerning the issue of compensation and, in any event, the contractual terms were unfair, unreasonable and oppressive and thus unenforceable against them.

Held, that while carriers of goods may contract out of the strict liability imposed on them by the common law or by contract limit their liability, the clause exempting the carrier from liability must do so in clear terms, with express reference to negligence. In the absence of such clear terms, the clause is to be construed as relating to a different kind of liability and not to liability based on negligence. The excluding or limiting term must be brought to the attention of the party against whom its protection is sought or otherwise be within his knowledge. Whether or not the plaintiffs could be taken to be aware of the term, the defendant could not exempt itself from liability for theft by its employees. Theft or loss of a large item like that in question could only be attributed to "gross negligence or wilful malfeasance" as defined in the Tariff Book, and the defendant could not, therefore, be exempted from liability.

D Held, further, that this contract of carriage was a consumer contract as defined in s 2 of the Consumer Contracts Act [Chapter 8:03]. Section 5(1) of the Act allows a court to find a consumer contract to be unfair if it excludes or limits the liabilities of a party to an extent that it is not reasonably necessary to protect its interest, if it is contrary to commonly accepted standards of fair dealing or if it is expressed in a language not readily understood by the other party. The current contract was unreasonably oppressive, in that it contained a provision that sought to deny the plaintiffs adequate compensation for their goods. The Tariff Book sought to quantify the value of compensation to be paid in respect of goods lost or damaged by means of mass. This method was unreasonably oppressive, as mass alone is not a suitable standard used in evaluating assets. Further, the contract limited the defendant's liability more than was reasonably necessary, as it resulted in the owners of goods being transported not getting real compensation in the event of loss or damage. Finally, the terms of the agreement as contained in the Tariff Book were conveyed to the other party in a bad, vague and less than informative fashion.