Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd (HH 51 of 2004) [2004] ZWHHC 51 (2 March 2004)

Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd (HH 51 of 2004) [2004] ZWHHC 51 (2 March 2004)

The contract was one for services, not mere hire of equipment. The defendant's standard terms and conditions, including the exemption clause, were not incorporated into the contract as they were not brought to the plaintiff's attention before contract formation. Even if incorporated, the exemption clause did not expressly exclude liability for negligence and is therefore inoperative against the plaintiff's claim. The defendant's employees were negligent in the manner of slinging and lifting the machinery, causing the loss. The contract was a consumer contract under the Consumer Contracts Act [Chapter 8:03], and the exemption clause was an unfair scheduled provision, which the court...

Citation
[2004] ZWHHC 51
Parties
Plaintiff: Cabri (Private) Limited; Defendant: Terrier Services (Private) Limited
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
2 March 2004
Case Number
HH 51 of 2004
Procedural Posture
Civil Trial / Judgment
Outcome
Judgment for the plaintiff
Legal Topics
Exemption Clauses, Negligence, Consumer Contracts, Damages, Interpretation of Contracts
Source Language
English
Contract Law Consumer Protection Tort Law Exemption Clauses Negligence Consumer Contracts Damages Interpretation of Contracts

Case Brief

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Parties

Cabri (Private) Limited

Plaintiff

Terrier Services (Private) Limited

Defendant

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether the contract was one of service or hire
  2. 2 Whether the defendant's standard terms and conditions formed part of the contract
  3. 3 Whether the exemption clause excluded liability for negligence

Ratio Decidendi

The contract was one for services, not mere hire of equipment. The defendant's standard terms and conditions, including the exemption clause, were not incorporated into the contract as they were not brought to the plaintiff's attention before contract formation. Even if incorporated, the exemption clause did not expressly exclude liability for negligence and is therefore inoperative against the plaintiff's claim. The defendant's employees were negligent in the manner of slinging and lifting the machinery, causing the loss. The contract was a consumer contract under the Consumer Contracts Act [Chapter 8:03], and the exemption clause was an unfair scheduled provision, which the court...

Court Disposition

Judgment for the plaintiff

Orders

  • Defendant to pay plaintiff US$109,600 or the equivalent in Zimbabwe dollars at the official rate at the time of payment, with interest from 2 August 2000 to date of payment at the rate paid by a commercial bank in Zimbabwe on a US dollar foreign currency account.
  • Defendant to pay costs of suit.