 |
|
 APRIL 2011 IS THERE LIABILITY TO A NON-CONTRACTING THIRD PARTY? A truck owner entered into an agreement to let his truck to a construction company performing work on a construction site. The site was guarded by security guards employed by the construction company. The truck owner was aware of the security presence as it was a term of the contract that the site be guarded. During a weekend, men purporting to be truck repairmen arrived at the site with a letter stating they were to repair a truck and test drive it. The men took off with the truck never to be seen again. The question is whether the security guard’s conduct in allowing the men to drive the truck away from the site was wrongful, rendering the security company vicariously liable to the owner of the vehicle. In a recent Supreme Court Appeal decision of Viv’s Tippers (Edms)Bpk v Pha Phama Staff Services (Edms)Bpk t/a Phs Phama Security (2011) 1 All SA 34 (SCA), the court found that the loss suffered by the truck owner was purely economic. For historical reasons our law does not without more impose a legal duty in such a situation (on the guard) to prevent pure economic loss. Therefore the negligence of the guard was not wrongful. The measure of wrongfulness is primarily drawn from the convictions of the local community (and thus changes with the passage of time). Where a loss sustained is purely economic the question must be asked whether public policy or the convictions of the community are such that the negligence of the guard was wrongful. The security company would not have been guarding the premises but for its contract with the construction company. The terms of the contract have to play a role in assessing what the convictions of the community would be in relation to affording a claim for compensation to a non-contracting third party. The contract regulated the security company's liability between it and the construction company. The court found that the convictions of the public in this situation was that it would be unfair to expose the security company to the problems of indeterminate claims of unknown third party claimants. Therefore, in these circumstances the court held that there was no liability to a non-contracting third party. From this one may deduce that one needs to have an agreement with the person directly responsible for the safe keeping of your assets before he could be held liable for the loss thereof. By: Ziyanda Mkhwanazi Attorney Tomlinson Mnguni James Inc. Durban (031) 307 7205 |
|
 |
|
| FOR FURTHER INFORMATION CONTACT: |
Litigation Department T: (033) 341 9100 F: (033) 392 4600 E: litigation@tmj.co.za |
|
|