Replace goods; appointment of damages (2013911265) [2013] ZACGSO 7 (30 October 2013)
- Citation
- [2013] ZACGSO 7
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Consumer Goods and Services Ombud
- Panel
- Bonita Hughes
- Case number
- 2013911265
More details
- Court
- Consumer Goods and Services Ombud
- Panel
- Bonita Hughes
- Case number
- 2013911265
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Both the supplier's delivery agents and the complainant's neighbour acted negligently in the delivery and subsequent loss of the goods. The delivery agents failed to follow proper procedures by allowing an unauthorised third party to sign for the goods and not requiring the authorised neighbour to sign the delivery note. The neighbour, acting as the complainant's agent, did not exercise reasonable care by failing to verify the identity and authority of the person claiming the goods. Applying the Apportionment of Damages Act, the adjudicator finds that both parties contributed to the loss and that damages should be apportioned accordingly. The supplier is ordered to replace the goods at its cost, with the complainant contributing R500.00 towards the replacement, and the supplier bearing the cost of delivering the replacement goods.
Court disposition
Both parties found negligent; damages apportioned. Supplier to replace goods at its cost, complainant to contribute R500.00, supplier to bear delivery cost.
Orders
- The supplier must replace the stolen goods at its cost.
- The complainant must pay R500.00 to the supplier to receive the replacement goods.
- The supplier must bear the cost of delivering the replacement goods.
02
Material facts
Parties
Complainant
ApplicantHouse and Home
RespondentAmounts and remedies
- Value of Goods Purchased: ZAR 3,948
- Delivery Fee: ZAR 250
- Complainant's Contribution for Replacement: ZAR 500
03
Procedural history
Posture
Consumer Complaint / Adjudication
04
Questions and positions
Legal issues
- 01
Whether the supplier and the complainant's neighbour acted negligently in the delivery and subsequent loss of goods.
- 02
Whether damages should be apportioned between the supplier and the complainant based on their respective fault.
- 03
What is the appropriate remedy for the complainant given the circumstances of the loss.
Party arguments
- Applicant
- The complainant contends that the supplier failed to ensure proper delivery by allowing an unauthorised person to sign for the goods, resulting in their theft. The complainant maintains that she arranged for her neighbour to accept delivery and that the supplier's agents should have ensured the neighbour signed the delivery note, thereby minimising the risk of loss.
- Respondent
- The supplier argues that the complainant's neighbour, acting as her agent, accepted delivery and possession of the goods and should have exercised reasonable care. The supplier asserts that the neighbour's failure to verify the identity and authority of the person claiming the goods contributed to the loss, and thus the complainant bears partial responsibility.
05
Court’s reasoning
Legal principles
- 01
Apportionment of Damages Act
Where damages are caused partly by the fault of the claimant and partly by the fault of another, the damages recoverable shall be reduced to an amount deemed just and equitable having regard to the degree of fault of each party.
- 02
General principles of agency law
An agent accepting delivery on behalf of a principal must act reasonably and ensure that only authorised persons handle the goods.
06
Ratio, limits and disposition
Ratio decidendi
Both the supplier's delivery agents and the complainant's neighbour acted negligently in the delivery and subsequent loss of the goods. The delivery agents failed to follow proper procedures by allowing an unauthorised third party to sign for the goods and not requiring the authorised neighbour to sign the delivery note. The neighbour, acting as the complainant's agent, did not exercise reasonable care by failing to verify the identity and authority of the person claiming the goods. Applying the Apportionment of Damages Act, the adjudicator finds that both parties contributed to the loss and that damages should be apportioned accordingly. The supplier is ordered to replace the goods at its cost, with the complainant contributing R500.00 towards the replacement, and the supplier bearing the cost of delivering the replacement goods.
Obiter and limits
- Obtaining the signature of the authorised person would have made it very difficult, if not impossible, to defraud the complainant.
- Both parties must take reasonable steps to minimise the risk of loss in delivery transactions.
Court disposition
Both parties found negligent; damages apportioned. Supplier to replace goods at its cost, complainant to contribute R500.00, supplier to bear delivery cost.
- The supplier must replace the stolen goods at its cost.
- The complainant must pay R500.00 to the supplier to receive the replacement goods.
- The supplier must bear the cost of delivering the replacement goods.
Source and reliance status
Consumer Goods and Services Ombud
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Consumer Goods and Services Ombud
Judgment
Delivery to unauthorised person:
Replace goods; apportionment of damages
Complaint ref : 2013911265
Adjudicator : Bonita
Hughes
Date : 30
October 2013
1. Summary of complaint
On the 01st of June 2013 the complainant purchased a refrigerator and patio suite to the value of R3 948.00 plus a delivery fee of R250.00. The complainant was not at home when the goods were delivered so she arranged with her neighbour to open the flat for the goods to be delivered.
The delivery agents accepted help from a person who claimed to work as a supervisor for the complex. The goods were delivered into the complainant’s flat.
The delivery agents allowed the person from whom they accepted assistance to sign the delivery note. According to the neighbour, he was advised by an unknown third party not to sign for the goods as they were damaged and had to be taken back to the store.
The goods were then removed from the complainant’s flat by persons unknown, never to be seen again. It was not possible to establish whether these persons and the “supervisor” were working in cahoots with the delivery agents, the complainant, the complainant’s neighbour, the security guard at the flats or if they had independently followed the delivery van or coincidentally
witnessed the delivery and ceased upon the opportunity.
2. Assessment
By opening the flat and allowing the furniture to be brought into it, the neighbour accepted delivery and possession on behalf on the complainant and should have acted in a reasonable manner when doing so. The neighbour should have made sure that the person who claimed that the goods must be returned was in fact authorised to take the goods / was employed by the supplier or its delivery agent.
We do however also feel that the delivery agents also acted negligently by allowing an unknown third party to assist and sign for the goods.
By not requesting the complainant’s neighbour to sign for the goods, this contributed to the neighbour being duped into believing
that the goods must be returned.
In terms of the Apportionment of Damages Act, where a person who suffered damages which are caused partly by his own fault and partly by the fault of any other person, a claim in respect of those damages shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be reduced to an amount deemed just and equitable having regard to the degree in which the claimant was at fault in relation to the damage. In other words, a claim can be reduced in line with the extent to which the conduct of the person claiming contributed to the loss.
3. Conclusion
We have considered the responsibilities of you as the supplier to minimise the risk as well as the fraudster’s chances of success in this regard.
· We believe that if the delivery agent requested the delivery note to be signed by the neighbour, authorized by the complainant to receive the goods on her behalf, it would have minimised the risk of the goods being stolen. The delivery note states that you received the goods in good order and condition.
· We also feel that if the correct procedures were followed by obtaining the signature of the authorised person it would have been very hard, if not impossible to defraud the complainant.
We also considered the responsibilities of the complainant’s neighbour, who acted as the Complainant’s agent in this matter:
· The neighbor should have taken reasonable care of the goods once they were delivered at the flat and should have made 100% sure that the person claiming that the goods must be returned was in fact employed by House and Home.
We are of the view that both parties acted negligently and feel it would be appropriate if there is an apportionment of damages.
We therefore suggest that you replace the goods as earlier offered by you, at your cost, and that the complainant contributes by paying you R500.00 in order to get the goods replaced. You should also bear the cost of delivering the replacement goods.
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