Litigation Update, Owners Risk and the Negligent Car Washer
In the case of Motowest Bikes and ATVS ("Motowest") vs Calvern Financial Services ("Calvern") Calvern sued Motowest for damages for the loss of its motor vehicle which was stolen from the premises of Motowest. Motowest conducted the business of car washing and the vehicle had been left at its premises for that purpose. When the owner called to collect its vehicle the vehicle was missing. Motowest defended the action alleging that it was not liable on the ground (a) that the vehicle had been stolen without any negligence on its part and (b) because it was protected by an owners risk notice on display at its premises. The court rejected both defenses and found for the vehicle owner.
It was common cause at the trial that a contract of depositum had been concluded when the vehicle was left at Motowest's premises. Depositum is an agreement in terms whereof a thing is delivered for safekeeping, returnable on demand. Should the depositary fail to return the thing when required to do so the depositary will be liable for the loss unless able to establish that the loss occurred through no fault on its part. On the facts of the case the court found that Motowest had indeed been negligent. The carwash was located in an area where crime was rife; the gate to the carwash was left open for the entire day and there were no access control measures in place. As to the defense based on the owners risk clause, the court noted that such a clause undermines the very essence of a contract of deposit and should therefore be pertinently brought to a customer's attention. In casu the court found that the notice, instead of being prominently displayed, had been placed at an obscure spot on a table in the carwash office and had not been observed by the customer. The court accordingly held Motowest liable to compensate Calvern for the value of the stolen vehicle.