Cabri (Private) Limited v Terrier Services (Private) Limited

In August 2000, the plaintiff (Cabri) contracted with the defendant (Terrier Services), a crane hire and heavy equipment mover, to move heavy equipment and machinery within and between its premises. During the moving of a lathe, the sling attached to the crane broke, causing the lathe to fall on a wire cut EDM machine. Both machines were damaged beyond repair at a replacement cost of US$109,600.00. The plaintiff claimed damages alleging breach of contract on grounds that: (1) the defendant used worn and unserviceable slings, and (2) the defendant's employees failed to attach slings to appropriate attachment points on the lathe. The defendant denied liability, arguing the contract was for hire of equipment and operators, not provision of services, and sought to rely on exemption clauses (particularly clause 22) in its standard terms and conditions which excluded responsibility for quality of slings and rigging supplied. The contract was oral with daily waybills signed. The slings were attached incorrectly - passed through holes and under the lathe rather than through iron bars in the appropriate holes, causing sharp edges to cut the slings when lifted.

• Whether the contract was one of service or hire of equipment
• Whether the defendant's standard terms and conditions (Exhibit 4), particularly clause 22, formed part of the contract between the parties
• Whether the contract qualified as a consumer contract under the Consumer Contracts Act [Chapter 8:03]
• Whether the court should exercise discretion under s 4(1) of Chapter 8:03 to delete clause 22 as an unfair term
• Whether the defendant's employees were negligent in operating the crane and attaching the slings
• Whether the exemption clause effectively excluded liability for negligence
• The quantum of the plaintiff's damages

Judgment for the plaintiff. The defendant was ordered to pay: (1) US$109,600.00 or the equivalent in Zimbabwe dollars converted at the official rate at time of payment, with interest at the rate paid by a commercial bank in Zimbabwe on a US dollar foreign currency account from 2 August 2000 to date of payment; and (2) Costs of suit.

The binding legal principles established are: (1) A contract will be characterized as one for services rather than hire of equipment where the supplier exercises substantial control and supervision over both the equipment and the operators, makes all technical decisions, and the hirer has no expertise or input in the operation. (2) Standard terms and conditions containing exemption clauses will not form part of an oral contract unless brought to the attention of the other party before or at the time of contract formation; signing daily waybills after work is performed does not incorporate terms by reference where the signatory is only verifying hours worked. (3) Exemption clauses excluding liability for negligence must either: (a) expressly refer to negligence, or (b) use words clearly wide enough in their ordinary meaning to cover negligence, and there must be no other reasonable ground of liability to which the clause could apply. General words excluding "all liability" or "loss or damage of any nature" are insufficient. (4) Under the Consumer Contracts Act [Chapter 8:03], a contract for supply of services where the supplier deals in the course of business and the recipient does not constitutes a consumer contract. Exemption clauses excluding liability for negligence are "scheduled provisions" under paragraph 2 of the Schedule, and courts have discretion under s 4(1) to cancel such unfair terms. (5) The doctrine of res ipsa loquitur applies where the defendant had exclusive control over the equipment, operations, and all decisions leading to the accident.

Gowora J made several non-binding observations: (1) She found the plaintiff's witnesses (Pitout and Crundall) credible and straightforward, while finding the defendant's CEO (Griffith) to be an unreliable witness who tailored his evidence to justify the defendant's position. Emerick was found to be truthful. These credibility findings, while influencing the outcome, are obiter as they relate to factual assessment rather than legal principle. (2) The judge noted that ideally, a party seeking to exempt itself from liability for negligence should say so explicitly and add words requiring the other party to obtain insurance to cover risks from the proferens's negligence, citing Government of RSA v Fibre Spinners & Weavers. This represents best practice guidance rather than a binding requirement. (3) The judge observed that the purpose of restrictive interpretation of exemption clauses is "policy based" (citing Transport Crane Hire), reflecting concern for fairness and protection of weaker parties. (4) She noted that while the Act empowered her to cancel the entire contract, this would be impractical as the major part had been performed, so she cancelled only the offending clause. This reflects judicial pragmatism in applying consumer protection remedies. (5) Regarding quantum, she noted that in the absence of evidence on the Zimbabwe dollar to US dollar exchange rate, it was impossible to fix a conversion rate in the judgment, so she ordered payment at the official rate prevailing at time of payment.

This case is significant in Zimbabwean contract law for several reasons: (1) It clarifies the distinction between contracts of hire and contracts for services, emphasizing that the degree of control and supervision exercised determines the nature of the contract. (2) It reinforces strict interpretation of exemption clauses, particularly that clauses seeking to exclude liability for negligence must do so expressly and clearly, following the principles in Canada Steamship Lines v Regem and Transport and Crane Hire v Hubert Davies. (3) It demonstrates the application of the Consumer Contracts Act [Chapter 8:03], showing courts' willingness to strike down unfair exemption clauses as "scheduled provisions" even in commercial contexts where one party is not dealing in the course of business. (4) It applies the doctrine of quasi mutual assent, holding parties to the reasonable understanding they created through their conduct. (5) It illustrates application of res ipsa loquitur in cases involving exclusive control over equipment and operations. The judgment protects weaker contracting parties from one-sided exemption clauses buried in standard terms never properly brought to their attention.