RICKETS UPHOLSTERY (PVT) LTD v BIDDULPHS REMOVALS & STORAGE (PVT) LTD 2011 (1) ZLR 175 (S)

Flynote

Contract — depositum — loss of goods deposited — when bailee liable — "owner's risk" clause in contract — effect of — no need for bailee to prove he was not negligent

Headnote

The appellant left certain of his goods in storage at the respondent's premises. He signed, but did not read, a document which stated that the defendant "shall not be responsible for any loss or damage of any nature whatsoever sustained or suffered by the customer and however and from whatever cause arising even if the customer (sic) and/or their servants and /or agents are negligent, the basis of this quotation being that work and storage will be effected entirely and solely at the customer's risk." He indicated that he wanted insurance, but did not pay for any insurance. Some persons, who might have included an employee of the respondent, broke into the warehouse where the appellant's goods were stored and stole some of the appellant's goods. The appellant claimed a sum representing the value of the stolen goods. It was common cause that the stolen goods were deposited with the respondent under a contract of bailment or deposit.

Held, that, under contract of bailment, the bailee must take the goods into his custody and must return the goods unscathed to the bailor when called upon to do so or at the conclusion of the contract. The bailee is not an insurer of the goods and is therefore not liable for the results of casus fortuitus. The bailee avoids liability if he can prove that the loss of or damage to the goods was not caused by his negligence. An "owner's risk" clause, appropriately worded, could therefore serve not only to free the bailee from the onus of disproving negligence but also to absolve him from responsibility for his own or his servants' negligence. The bailee for reward is not liable for failure to restore the property bailed if its loss or destruction occurs without negligence on the part of the bailee or on the part of his servant to whom he has entrusted the task of looking after the property. While the appellant was not shown the quotation on which the terms and conditions of storage were endorsed, he nevertheless signed the contract, specifically accepting the importation of those terms and conditions into the contract he signed. That did not make the terms and conditions invalid and inapplicable. The terms and conditions as endorsed on the reverse side of the respondent's quotation were binding on the parties. There was thus no need for the respondent to prove that he was not negligent. In any case, no negligence on the part of the respondent was established on the evidence. Nor was it established that an employee of the respondent stole the goods or that that employee had been entrusted by the respondent with the care and safekeeping of the goods.

Judgment of Makarau JP in Rix Upholstery (Pvt) Ltd v Biddulphs (Pvt) Ltd 2008 (2) ZLR 210 (H) upheld.