Precedents from 1800s still guide law today

TWO cases from the 1800s – one involving a stolen ostrich and one a borrowed horse that fell into one of Grahamstown’s ubiquitous potholes – have established that you can sue for damages even when driving a vehicle not belonging to you.

The Grahamstown High Court has given Tavcor Motors in Port Elizabeth the go-ahead to sue another company, Parmalat, for damages done to one of its client’s car after a collision with a Parmalat vehicle. Tavcor alleges that the collision happened as a result of the negligence of the driver of the Parmalat vehicle.

But Parmalat took the technical point that Tavcor did not have the standing to sue for damages to a vehicle that did not belong to it even if the car was in its care at the time.

But Judges Clive Plasket and Selby Mbenenge were referred all the way back to cases from the 1800s that suggest otherwise.

Plasket said there was a “line of cases that stretch back prior to Union” in which the courts consistently held that in certain circumst a possessor, rather than an owner, may have standing to recover damages.

Plasket said one from 1892 would strike a chord with modern-day motorists from Grahamstown.

In that one, a horse ridden by a man named Bower – but owned by one Wheeldon – injured itself when it stumbled into a pothole on a road the local Albany district council was required to maintain.

Bower succeeded in a claim for damages and was awarded £4. The judge rejected the Albany council’s argument that Bower had no standing to sue as the animal did not belong to him. He found that Bower, as a ‘bailee’, became responsible for any accident that might happen to the horse. This gave him the standing to sue for the full amount of damage done to the horse.

In an earlier case from 1884 a Mr Melville had sued a Mr Hooper who had stolen and slaughtered an ostrich in his care. Melville was not the owner of the ostrich but then Chief Justice John de Villiers ruled that the law was clear that an action could be brought, not only by the owner of the thing stolen, but also by a bailee who would be responsible to the owner.

Plasket found Tavcor had contacted the owner when the vehicle was damaged and had agreed to repair it at its cost. By doing so it “assumed the risk” and had the right to sue another party for damages.

Advocate Dave de la Harpe instructed by Netteltons argued the matter for Tavcor while Advocate E Benade instructed by Nolte Smit Inc argued on behalf of Parmalat.