The short answer is yes, you can sue both the driver and Coca-Cola for the damages you sustained to your vehicle in the accident.

The basis on which you will rely when summons is issued against the driver will be due to his negligent driving of the vehicle (the delict) and your cause of action against Coca-Cola will be based on vicarious liability.

Vicarious liability can be defined as when an employer is held liable for damages occasioned by delicts committed by an employee in the course and scope of the employee’s employment.

Examples of case where the employer was held liable for the actions of their employees are:

1. Motor vehicle collisions;
2. Unlawful arrest and detentions by member of the SAPS;
3. Medical negligence by nurses in the employee of the state;
4. Teachers in the employment of the department of education

In order to succeed with an averment of vicarious liability, the following must be alleged and proven by the plaintiff in addition to the usual allegations, to establish delictual liability:

1. That the person who committed the delict was an employee of the employer;
2. The scope of the employee’s duties at the relevant time;
3. That the employee performed the delictual act in the course and scope of the employee’s employment.

Now in order to prove that the employee acted within the course and scope of his employment while driving the truck, it will be necessary that facts be established which could be inferred that the employee was acting in the course and scope of his employment.

This seems easy to establish but there are certain defences an employer may raise when confronted with a claim due to vicarious liabilities, which include:

1. That the employee was disobedient and acted in defiance of an explicit instruction, which caused the employee to act outside the course and scope of his duties, for example if the employee full knowingly used the vehicle for personal use against company policy;
2. That the employee was engaged in a frolic of his own in doing something he was permitted to do for his own purposes but not employed to do for the employer, unless the act was incidental to the employment.
3. Even in certain cases where the employee has committed fraud, the employer could be held liable if, objectively seen, there is a sufficiently close link between the self-directed conduct and the employer’s business.

It is advisable that you approach the offices of an attorney who specialises in motor vehicle accidents and order to properly investigate the circumstances of the accident to hold Coca-Cola liable.

Reference List:

• Amler’s Precedents of Pleadings, ninth Edition, Harms, Lexis Nexis