Last week, I promised to give elaboration to the principle of deviation through a real story of a truck driver which was disposed of in 2012.
The purpose of this article is to encourage business to invest in training of the staff to ensure that there is little exposure for the business. As highlighted in the first part to this article, the business can be sent to its knees due to the misdemeanors of the employees which will find a claim for vicarious liability against the employer.
The story of the truck driver
Cold Chain, which was in the business of selling fish, was based at Chitungwiza and employed Isaac (“Isaac”) as a driver. On 20 December 1999 the company instructed Isaac to deliver a consignment of fish to its customers at Nyanga, using the company’s Isuzu pick-up truck.
After delivering the fish, Isaac was to return the truck to the company premises at Chitungwiza on that day. He left the company premises in the morning but did not return, because at 8 pm on that day he was involved in a head-on collision with a motor vehicle being driven by Makoni, at the twelve kilometre peg on the Rusape-Nyanga Road.
Both Isaac and Makoni were seriously injured and were taken to hospital.
Isaac unfortunately died a few hours after the accident, but Makoni survived. Makoni’s motor vehicle was damaged beyond repair.
The police officer who arrived at the scene shortly after the accident observed that at the time of the collision Isaac was driving the truck towards Nyanga, and Makoni was driving his vehicle towards Rusape.
From his observations he concluded that the collision had occurred due to Isaac’s negligence, in that the truck being driven by Isaac had strayed into Makoni’s lane. The police officer also observed that the truck was empty and had no fish.
Subsequently, Makoni instituted a civil action in the High Court against the company, claiming damages for, inter alia, personal injuries, lost income and for the loss of his vehicle.
The High Court found that the company was vicariously liable for Isaac’s negligence, and granted judgment in favour of Makoni. Aggrieved by that decision, the company appealed to the Supreme Court.
The Supreme Court observed that, the driver was given custody of the company’s truck and a consignment of fish, and was instructed to drive the truck, deliver the fish to the company’s customers at Nyanga and return the truck to the company’s premises at Chitungwiza by evening on that day.
After delivering the fish, and at about 8 pm, the truck was involved in a head-on collision with a motor vehicle being driven by Makoni at a spot about twelve kilometres from Rusape. The collision occurred due to the negligence of the truck driver.
Applying the standard test for vicarious liability to those facts, the critical question is whether at the time of the collision the driver was engaged in the affairs or business of his employer.
In answering that question, one should bear in mind that the affairs or business of the company included, not only the delivery of the fish to Nyanga, but also the custody of the truck and its return to the company’s premises at Chitungwiza.
The Supreme Court held that when the collision occurred the driver was engaged in the affairs or business of the company. He was in the course of carrying out the instruction to drive the truck and return it to the company’s premises.
There might have been deviations in terms of time and space, but such deviations would have been minor when compared to other cases, where the employers were held vicariously liable.
The Court further observed that when determining whether there was a deviation in terms of time, it is important to bear in mind that the driver was supposed to return the truck to the company’s premises at Chitungwiza by evening, with no specific time having been given.
It is, therefore, likely that when the collision occurred at about 8 pm there had not been any significant deviation in terms of time, as 8 pm could be regard as part of the evening.
With regard to the deviation in terms of space, it is important to bear in mind that the collision occurred whilst the driver was on the authorised route, although at the relevant time he was driving in the direction of Nyanga where he had come from.
In reality, there was no deviation in terms of space similar to the deviation in the Feldman case supra and in the Biti case supra, where the driver left the authorised route altogether and drove the employer’s vehicle to a place some kilometres away on private business.
The employers in those two cases were held vicariously liable for the delict committed by their drivers. In the Cold Chain case, the deviations in terms of time and space, if one can call them deviations, were not such as to justify the conclusion that when the collision occurred the driver was on a frolic of his own.
The supreme Court accordingly dismissed the appeal, and held that the company was vicariously liable for the delict committed by its driver.
The story above is found in the case of THE COLD CHAIN (PRIVATE) LIMITED v ROBSON MAKONI SC9/12.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.
They are not meant to create an attorney-client relationship or constitute solicitation.
No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].