Bailment Duties
Cases
O’Keeffe -v- Hickey
[2008] IESC 72 [2009] 1 ILRM 490, [2009] 2 IR 302, [2008] IESC 72
Hardiman J
Supreme Court
Counsel for Irish Asphalt relied on a number of authorities in support of its arguments including the decision in the case of Spurling Limited v. Bradshaw [1956] 1 WLR 461 (“Spurling”) in which the United Kingdom Court of Appeal considered the status of a “landing account”. The defendant in that case had dealings with the plaintiff warehousemen, and delivered to them a number of barrels of orange juice for storage. A few days later, the defendant received a “landing account” which, on its face, referred to conditions printed in small type on the back. Those conditions included an exemption clause. The barrels, when collected, were found to be empty, or in such damaged condition as to be useless. The warehousemen sued for charges due for storage and the defendant counterclaimed for damages for breach of an implied term of the contract of bailment to take reasonable care of the barrels. Denning L.J. (at p. 467) commented:
“It is to be noticed that the landing account on its face told Mr. Bradshaw that the goods would be insured if he gave instructions; otherwise they were not insured. The invoice, on its face, told him they were warehoused ‘at owner’s risk’. The printed conditions, when read subject to the proviso which I have mentioned, added little or nothing to those explicit statements taken together.
Next it was said that the landing account and invoice were issued after the goods had been received and could not, therefore, be part of the contract of bailment: but Mr. Bradshaw admitted that he had received many landing accounts before. True he had not troubled to read them. On receiving this landing account, he took no objection to it, left the goods there, and went on paying the warehouse rent for months afterwards. It seems to me that by the course of business and conduct of the parties, these conditions were part of the contract.”
91. In the circumstances, the warehousemen were able to rely on the exempting conditions and were able to recover their charges whilst the defendant’s counterclaim was dismissed. Counsel for Elliott Construction, in his submissions, noted that the landing account had been received by the plaintiff on many occasions in the course of his dealings with the defendant, and for that reason, it had the effect of putting the plaintiff on notice of the contractual terms which it contained.
92. It is clear that the Court of Appeal in that case was not concerned with the fact that the landing account was issued after the goods had been received. As the landing account and invoice with the terms and conditions containing the exemption clause had been provided to the defendant on many previous occasions, the Court concluded that, by the course of business and conduct between the parties, the terms were incorporated into the contract.
93. The case of British Road Services Ltd v. Arthur v. Crutchley & Co. Ltd (No.1) [1968] 1 All E.R. 811 (“British Road Services Ltd v. Arthur”), involved a delivery note issued in the course of a contract of bailment. Under a long established course of business between the plaintiff carriers and the defendants, delivery notes for goods transported by the plaintiffs and delivered at the defendants’ warehouse in the course of trans-shipment at Liverpool would be handed back to the plaintiffs’ lorry drivers, on the defendants receiving the goods, stamped “Received on AVC [that is the defendants’] Conditions”. The conditions included a term limiting liability to £800 per ton. A lorry load of whisky was delivered by the plaintiffs to the defendants’ warehouse. During the night the warehouse was broken into, and the whisky was stolen. On appeal, it was found that the defendants’ conditions of carriage were incorporated into their contract with the plaintiffs, and, accordingly, the liability of the defendants was limited to £800 per ton. At pp. 816-817 of his judgment Lord Pearson commented:
“Now I come to the terms of the contract between the plaintiffs and the defendants. It was not proved that the plaintiffs’ conditions of sub-contracting were ever sent to the defendants, and the defendants in evidence denied that they were sub-contractors to the plaintiffs. The plaintiffs’ form of delivery note contained the words:
‘All goods are carried on the [plaintiffs’] conditions of carriage, copies of which can be obtained upon application to any office of the [plaintiffs].’
Under the long-established course of business between the parties, however, the plaintiffs’ driver brought his delivery note into the defendants’ office at the Cotton Street warehouse and asked in effect if he could bring his load into the warehouse. If there was room in the warehouse, the permission would be given, and the delivery note would be rubber-stamped by the defendants with the words ‘Received under AVC conditions’, followed by the date and the address of the warehouse. The delivery note, thus converted into a receipt note, would be handed back to the plaintiffs’ driver and he would bring his load into the warehouse as instructed by the warehouse foreman. If this had only happened once, there would have been a doubt whether the plaintiffs’ driver was their agent to accept the defendants’ special contractual terms. This, however, happened frequently and regularly over many years at this and other warehouses of the defendants. Also the defendants’ invoices contained the words: ‘All goods are handled subject to conditions of carriage copies of which can be obtained on application’. It may perhaps be material to add that the defendants’ conditions of carriage were not peculiar to them, but were the conditions of carriage of Road Haulage Association, Ltd. At any rate, I agree with the decision of the judge that the plaintiffs’ conditions were not, and the defendants’ conditions were, incorporated into the contract between these parties. The effect was that, while the nature of the defendants’ liability as bailees to the plaintiffs was unaffected, the liability was limited in amount to £800 per ton, which, when credit is given for sixty bottles of whisky recovered after the theft, produces a total in this case of £6,135.”
94. What is of interest in that case is that the defendants’ terms and conditions were found to have been incorporated into the contract between the parties but the plaintiffs’ terms and conditions, to which reference was made on the printed delivery note, were not incorporated into the contract. As stated in Lord Pearson’s opinion, the reason why the plaintiffs’ terms and conditions were not incorporated into the contract was because “It was not proved that the plaintiffs’ conditions of subcontracting were ever sent to the defendants and it was denied by the defendants that they were subcontractors to the plaintiffs”. By contrast, the defendants’ terms and conditions were not peculiar to them, but were the conditions of carriage of the Road Haulage Association Limited, and were incorporated into the contract by reference to the rubberstamping of the words “Received under AVC Conditions” on the delivery note.
95. Another case relied on by Irish Asphalt in relation to the nature of contractual documents is the case of Thompson v. T. Lohan (Plant Hire Limited) Ltd & Anor [1987] 1 W.L.R. 649 (“Thompson v. T. Lohan”), a case in which at issue was a letter and a time sheet. This was a judgment of the Court of Appeal of England and Wales. The letter in question concerned the hire of an excavator and contained the following:
“‘All plant hired out under the terms and conditions of the Contractors’ Plant Association conditions of hire a copy of which will be forwarded on request.’” (p. 651)
The letter was read by a Mr Pinder on behalf of a third party and it was accepted that the initial agreement in that case was made between Mr Danby on behalf of the defendant and Mr Pinder on behalf of the third party. It was noted by Fox L.J. in his judgment (at p. 651):
“As to the position of the two individuals principally concerned, Mr. Pinder was the quarry manager of the third party, and Mr. Danby was a director of Lohan. Mr. Pinder had previously hired from Lohan and knew that Lohan traded on the C.P.A. model terms — and the judge so found.”
Fox L.J. went on to say (at p. 653):
“The first question which I deal with, although in fact it came later in the third party’s submissions, is: what was the contract? Was it the bare contract to supply plant at a price, or was the plant so supplied on the C.P.A. conditions? I have no doubt that it was the latter. First, Mr. Danby’s letter of 8 September made it quite clear that the hiring was to be on the C.P.A. terms; the letter says so. Secondly, the third party raised no objection to that; indeed, it is clear that is what they expected. Thirdly, it was absolutely common form in the industry. Fourthly, I should refer to some passages in Mr. Pinder’s cross-examination. [His Lordship referred to passages in which Mr. Pinder said that, although he had never read the C.P.A. conditions, he knew of their existence, that the letter from the first defendants stated that the plant was hired subject to those conditions and that it was the practice and custom in the industry to hire plant subject to the conditions. His Lordship continued:] Fifthly, the form of time sheet has a note at the bottom of the sheet which says:
‘All hours shown on this time sheet certified correct, an invoice charged on these hours will be accepted. C.P.A. conditions of hire to apply’.
That is signed by the operator and also on behalf of the hirer. Mr. Pinder in fact signed that time sheet and some six others which we have in the appeal bundle. Again, there is plain reference to the C.P.A. terms. In my opinion the only conclusion to be reached from those facts and evidence is that the parties entered into the contract upon C.P.A. terms. At what precise point of time the contract was concluded I need not consider. There is no doubt there was a contract and, on the evidence, in my view it was beyond doubt that such contract was on C.P.A. terms.”
96. Counsel for Elliott Construction argued that it was clear from the decision in that case that the incorporation of the terms and conditions occurred independently of time sheets, and suggested that the case was not authority for the proposition that a post-contractual document could have the effect of incorporating new terms and conditions into a contract.
97. That case supports the proposition that terms and conditions can be incorporated by reference to specific terms and conditions in common use in that industry. Significantly, the letter of the 8th September contained the clause set out above stating the terms of the hire in question and the time sheet was relevant because it also made reference to the C.P.A. terms.
98. The English High Court decision in the case of Photolibrary Group Ltd v. Burda Senator Verlag GmbH [2008] 2 All ER (Comm) 881 (“Burda”) is also of interest. It concerned the role of delivery notes. The claimants in the case supplied photographs in the form of transparencies for the consideration of the defendants for publication in their magazines. The defendants would pass on their requests to one of their number who would in turn pass on the request to photograph providers. A number of photographs would be selected and sent to the defendant publishers. They would be considered, some would be published, some not. Those not used would be returned after consideration, some quickly, some not. When the transparencies were sent to the defendants, they were accompanied by a delivery note. On its face and back, it set out terms of business. They were standard terms of the British Association of Picture Libraries and Agencies. A substantial parcel of transparencies was sent out accompanied by the delivery note. While a number of transparencies were being returned, they were lost in transit between Germany and London. The terms and conditions included a term requiring the party who requested them to pay a holding fee while the transparencies were retained and also provided for payment of compensation for loss. In the course of his judgment, Jack J. said:
“65. Mr Ayres put great emphasis on the fact that Burda Media did not sign the delivery notes, which, he submitted, showed that the terms of the notes were not accepted. If the notes had been returned signed, that would have made the defendants’ position as to incorporation really unarguable. But the converse does not follow. The signature which was requested, where it was, was to acknowledge safe receipt. If the terms were not acceptable, Burda Media was asked to return the transparencies. That, of course, was never done.
. . .
68. It follows also that I reject the submission that the deliveries of transparencies are to be considered as bare bailments with no terms apart from a term as to the return of the transparencies with an obligation to take due care of them in the meanwhile. While it is now clear that contract is not a pre-requisite to bailment — I refer to Chitty on Contracts (29th Edition, 2004) Volume II, page 176 (paragraph 33-002) – in my view, in commercial situations such as the present where goods are passed by way of business from one party to another, it will be very unusual that there will be no contract between those parties.”
Jack J. also noted (at para. 63):
“In my judgment the most straightforward analysis of the contractual situation is that a delivery of transparencies accompanied by a delivery note is to be treated as an offer, which was accepted by the acceptance of the transparencies and their onward transmission to Germany. In each case a contract was made in that way. It incorporated the terms of the delivery notes. That is the appropriate objective interpretation of the parties’ conduct, whatever the actual intention of the defendants. However, I should say that I do not think that the evidence established any positive intention on the part of the defendants not to deal on the basis of the delivery notes. The evidence was actually to the contrary. For they knew what the terms were. They never rejected them, or said they would not be bound by them. In the early days the claimants’ delivery notes were sent to Germany and loss fees were noted on Burda Media’s delivery notes. I find that they negotiated loss fees on the basis that the claimants were entitled to the amounts stated in their delivery notes but could be persuaded to accept less because they wanted their businesses with the defendants to prosper. That was the appreciation on both sides. In the case of the sixth claimant, Marianne Majerus, there was an express acceptance of her terms at her meeting with Carmen Durrant in January 2004. Mr Crichton can also rely on the terms of his letter of 9 December 1996.
64. The alternative analysis that the faxed requests for transparencies to be submitted were offers to submit them on the usual terms, that is, the terms of the delivery notes, which offers were accepted by the submission of transparencies accompanied by the notes, seems to be equally viable. Likewise the case can be put on the basis of an established course of dealing on the terms of the delivery notes: compare the Circle Freight case.”
99. Counsel for Elliott Construction made the comment that that decision had no application to post-contractual delivery dockets. It is correct to say that the delivery notes accompanied by the transparencies were viewed as an offer by the Court in that case and, thus, could not be described as post contractual documents; but, nevertheless, the case is of assistance, particularly having regard to the course of dealing between the parties. It is important to bear in mind that in Burda, the delivery note contained the following provision:
“1. Any client who has not previously dealt with us on the terms and conditions set out overleaf and who does not wish to accept such terms must return all the images immediately…The client will be deemed to have accepted our terms if all the Images are not returned within 5 days of their receipt.”
Thus, it was an option for the defendants, on receipt of the transparencies, accompanied by the delivery notes setting out the terms and conditions of the contract, to be entered into, to reject the terms and conditions and to return the goods if not acceptable. It was also clear that the defendants were aware of the terms and conditions which were set out in the delivery notes.
100. Reference was also made to the decision of the Scottish Court of Session – Inner House in the case of Continental Tyre & Rubber Co.Ltd v. Trunk Trailer Co. Ltd [1985] S.C. 163 (“Continental Tyre & Rubber Co. Ltd”). That case concerned the sale and delivery of tyres, and a claim in respect of sums due in respect of the sale of the tyres. A number of tyres had been ordered by a purchase order in a standard form; on delivery, the pursuer’s driver tendered a delivery note in standard form and this was signed by a junior employee of the defenders. An invoice was sent about ten days later. The tyres were alleged to have been rejected by customers of the defenders as not being of merchantable quality. The pursuers in that case, on the assumption that the warranty as to merchantable quality had been breached, pleaded that their liability was excluded by a reference to their standard conditions of sale on the delivery note. It was contended that this note was a counter offer accepted by the defenders. They also relied on the argument that a recent and consistent course of dealing meant that the terms of the delivery note had been incorporated into the contract. It was held in that case that the contract was concluded as soon as the first batch of tyres had been delivered and the delivery note was merely a receipt indicating quantity and description of the tyres. It did not amount to a contract note or a record of the terms on which supply was made. Also, it was pointed out that there were no averments that a signature was required before delivery. It was further held that the incorporation of the contractual term by a course of dealing depended on whether the pursuers were reasonably entitled to conclude that the defenders accepted the tyres subject to their conditions, and particularly on whether sufficient notice had been given; the delivery note was not contractual and the defenders had continued to send purchase orders bearing that their own conditions were to prevail.
101. Lord Brand, the Lord President, in the course of his judgment (at p. 168) commented:
“What has been called the ‘delivery note’ does not so describe itself. It is not and does not bear to be a contract note or ‘sold’ note of the kind considered in Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association [1966] 1 W.L.R. 287. . . which purported to record the terms of the parties’ agreement, and which was tendered before performance. It is not and does not bear to be, either, an acknowledgement of order form, of the kind considered in Grayston Plant Ltd. v. Plean Precast Ltd. 1976 SC 206, purporting to record the terms on which the supply is made or to be made. The signature of the defenders’ employee is, as the form shows, required for one purpose and one purpose only. Opposite the box containing the signature are the following words: ‘Please note that your signature is proof that the quantity and description of the goods shown on this docket were received correctly.’ There are not averments that the legend near the top left hand corner of the docket, referring to the pursuers’ ‘conditions of sale’, which is in small print and not in bold type, was ever drawn to the attention of the person who signed it, and it is not averred that signature of the docket was required before the delivery was made (cf. the very different circumstances in British Road Services Ltd. v. Arthur v. Crutchley & Co. Ltd. where the delivery note was overstamped, referring to the conditions upon which the warehouse keeper would receive the load, and handed to the plaintiffs’ driver before he brought his lorry into the premises; see the opinion of Lord Pearson at pp. 816 and 817 ).”
102. The form in which it was contended that the terms and conditions in that case were said to be incorporated into the contract was as follows:
“‘All offers and sales are subject to the company’s current terms and conditions of sale, a copy of which will be supplied on request’”. (p. 167)
That case was relied on in the judgment in Noreside to which reference has been made previously.
103. Reference was also made in the course of the submissions to Treitel on The Law of Contract (12th Ed.) at paragraph 7 – 006 where it is stated:
“Nature of the document:
An exemption clause is not incorporated in the contract if the document in which it is set out (or referred to) is not intended to have contractual force: e.g. if the document is a mere receipt for payment. On the other hand, the mere fact that a document is called a ‘receipt’ will not prevent it from having contractual effect. The document will have such effect if the party to whom it was handed knew it was intended to be a contractual document or if it was handed to him in such circumstances as to give him reasonable notice of the fact that it contained conditions. It will also be contractual if it obvious to a reasonable person that it must have been intended to have this effect. This will be the case if the document is of a kind that generally contains contractual terms. Whether a document falls into this class depends on current commercial practice, which may vary from time to time.”
104. The Court is satisfied that the delivery dockets herein are contractual documents in the sense that they are documents which were created in the course of the contracts at issue in these proceedings. However, the real question is whether they are contractual documents in the sense contended for by Irish Asphalt? Chitty on Contracts (London; Sweet and Mazwell; 2012; 31st ed; volume I) at paragraph 12 – 009, puts it well:
“Contractual Documents:
[T]he document must be of a class which either the party receiving it knows, or which a reasonable man would expect, to contain contractual conditions…”
105. When one looks closely at the cases referred to above and the academic commentary, a number of points emerge. First of all, a contractual document may take a variety of forms – a landing account as in Spurling, a delivery note as in British Road Services Ltd v. Arthur, a time sheet and letter as in Thompson v. T. Lohan – to give some examples. Thus, a delivery docket could be a contractual document.
106. The second point that seems to be clear from the authorities is that in those cases in which it was successfully argued that the document at issue was a contractual document, the document contained, in one form or another, the terms and conditions actually relied on. Thus, in Spurling, the document at issued was a landing account which referred on its face to conditions printed in small type on the back. Those conditions spelt out clearly the basis on which the goods were to be taken by the warehouse.
107. The case of British Road Services Ltd v. Arthur.is notable in that the defendants’ conditions were incorporated into the contract as described above, but the plaintiffs’ conditions of contract were not found to have been incorporated in the contract, in circumstances where there was no evidence that their conditions of sub-contracting were ever sent to the defendants.
108. A third point to note is that the timing of the delivery of the relevant terms and conditions may not be the deciding factor in any given case. The decision in James A. Slattery v. Córas Iompair Éireann [1972] 106 I.L.T.R. 71 (“Slattery v. CIE”) (to which reference will be made later) reinforces the point that a party may be bound by terms and conditions although they sign a consignment note containing the terms and conditions of the contract after performance of the contract by one of the parties.
109. What emerges from the authorities is that, to be a contractual document, the document must be one which contains contractual conditions or a reference to specific terms and conditions well known in a particular industry. It is not sufficient to refer in general terms to unspecified terms and conditions. The proviso on the delivery docket in this case is akin to that in the Continental Tyre & Rubber Co. Ltd case which was found not to incorporate the pursuer’s terms and conditions. The Court is satisfied that the delivery dockets, signed by Mr Hannay for the most part, on behalf of Elliott Construction, were for the purpose of recording the type of material delivered, the date of delivery and quantity delivered, and did not set out the terms and conditions of the contractual arrangement between the parties. They are not documents which “generally contained contractual terms”, as it is put in Treitel, or documents of a class which the party receiving it or which a reasonable man would expect to contain contractual conditions as Chitty on Contracts describes it. Accordingly, having regard to the facts and circumstances of this case, the Court rejects the contention that the delivery notes are contractual documents in the sense contended for by Irish Asphalt.
Incorporation by signature
110. Given the finding that the delivery dockets are not contractual documents, strictly speaking, it is not necessary to consider whether Irish Asphalt’s terms and conditions were incorporated by signature into the contracts, as a party will only be found to have incorporated terms and conditions by signature on a contractual document. However some reference will be made to the authorities relied on by the parties in this context to the extent that they could have some bearing on other aspects of the issues herein.
111. Counsel for Irish Asphalt, in the course of his submissions, referred to the leading case of L’Estrange v. F. Graucob Ltd [1934] 2 K.B. 394 (“L’Estrange v. Graucob”). Scrutton L.J. at p. 403 of his judgment stated:
“In cases in which the contract is contained in a railway ticket or other unsigned document, it is necessary to prove that an alleged party was aware, or ought to have been aware, of its terms and conditions. These cases have no application when the document has been signed. When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.”
112. Counsel for Irish Asphalt also referred to the well known decision in the case of Curtis v. Chemical Cleaning & Dyeing Company [1951] 1 K.B. 805 (“Curtis”) in which a party’s signature was described as “irrefragable evidence of his assent to the whole contract, including the exempting clauses” (p. 808). That was a case concerning a dress left for cleaning. The plaintiff signed a receipt which contained conditions exempting the cleaners from liability for damage however caused, but at the time of signing the receipt, she did so in circumstances where the assistant in the dry cleaning shop misrepresented the extent of the exemption clause, and it was held in that case, the defendants could not rely on the exemption clause by reason of the innocent misrepresentation of the shop assistant.
113. Reference was also made to Slattery v. CIE. This case related to the transport of a horse. The plaintiff in the case had signed a consignment note following the delivery of the horse. The consignment note signed by the plaintiff was headed in large heavy black print “Consignment note and delivery sheet for horses to be carried… at owners’ risk”. Teevan J. in the course of his judgment at p. 73 noted that the plaintiff’s signature was about two or three inches below that heading. He went on the course of his judgment to observe:
“Be that as it may he signed the contract and no authority has been cited to me and no convincing argument presented to avoid the plaintiff’s assent to its terms, or to support assertion that having been signed on delivery it cannot be read as the contract the parties entered into.” (p. 74)
Accordingly, it was found that the plaintiff bound himself by the conditions on signing the contract note.
114. Irish Asphalt relies on the delivery dockets signed by Mr Hannay as and when goods were delivered by Irish Asphalt to Elliott Construction. It was contended that the delivery dockets were contractual documents and as such the signature by Mr Hannay on the delivery dockets was sufficient to incorporate the terms and conditions into the contract.
Buckley v Johnson and Perrott Limited
Mr. Justice Lavan 29th day July 1992.
The Plaintiff is a retired C.l.E. employee
The Law
(a) The consent referred to in Section 118 of the Act of 1961
maybe either an express consent or a consent to be
implied from the circumstances of .the case,
and,
(b) where a consent can be implied, the onus of establishing
that it did not apply to the particular user in question
in the action shifts to the Defendant – see the unanimous
decision of the Supreme Court in Buckley v. Musgrave
Brook Bond Limited 1969 Irish Reports at 448 and 449,
and,
(c) that the provisions of Section 118 are unambiguous and
intended to affect a radical extension of the principles
of a vicarious liability in order to ensure that the
victim of a road traffic accident was not confined by
common law principles in his remedy for damages in an
action against a driver who might be uninsured,
and 252
(d) once it is established that a consent within the meaning
of Section 118 of the Act of 1961 can be implied it is
not material that the first named Defendant had not
consented to the driving of the vehicle when the driving
was not insured, –
See O’Fiachain v. Kiernan and Others, unreported, Keane
J. the High Court 11/1/1985; and
See also Canadian Pacific Railway Company v. Lockhart
(1942) appeal cases at 591.
Applying those principles of law to the facts as found I
am satisfied that the second named Defendant was driving the
hired vehicle with the implied consent of the first named
Defendant at the time the collision complained of took place.
Signed
VIVIAN LAVAN
McElwee v. McDonald
[1969] I.R. 438
Kenny J.
In December, 1967, the plaintiff was the owner of a Humber Sceptre motor car. The defendant owned a small garage, which was at the back of the plaintiff’s chemist shop, and had done repairs to a Ford motor car which the plaintiff owned before he bought the Humber. Shortly before Christmas, 1967, the plaintiff heard a rattle in his car and brought it to the defendant who looked underneath it and saw that the exhaust pipe had almost come away from the silencer. The defendant said that the pipe would have to be welded to the silencer and that, as he had not any welding equipment, he would get a Mr. Smith (who had such equipment) to do the work. It was agreed that the defendant would collect the plaintiff’s car when an arrangement with Mr. Smith, for a suitable day to do the work, had been made by the defendant. Mr. Smith had always done the defendant’s welding work. The plaintiff says that he thought that the defendant was going to do the work and that he had never heard of Mr. Smith until the car was damaged. I am convinced that the defendant told the plaintiff that the welding work would be done by Mr. Smith, that the plaintiff did not understand this or was not listening but that the plaintiff behaved in such a way that Mr. McDonald rightly assumed that consent was being given by the plaintiff to the work being done by Mr. Smith. Nothing was said about liability for damage. When the work was done, the plaintiff would have paid the defendant who would have paid Mr. Smith.
Joseph McDonald, the defendant’s son who works in his father’s garage, called to the plaintiff at about 9.30 a.m. on the 1st January, 1968, and said that he was collecting the car to bring it to Mr. Smith to get the work done. The plaintiff asked him to have the car returned at 1 o’clock in the afternoon and, as the welding work was not expected to take more than 15 minutes, Mr. Joseph McDonald agreed to return it at this time. The plaintiff gave the keys of the car to Mr. Joseph McDonald who drove it to Mr. Smith’s premises in Dolphin’s Barn where it was put over a pit in the floor. Mr. Joseph McDonald decided to wait until the work was done. The safest way to do the work was to take off the exhaust pipe and to do the welding when the pipe was on the ground. This would, however, take more time. The other way of doing the work was to leave the pipe in position and to weld it into the silencer by working underneath the car in a pit; this way is quicker but it is dangerous unless the petrol tank and the supply pipe from it are covered with asbestos sheeting so that the heat and sparks from the welding equipment will not ignite the petrol fumes. Mr. Smith’s employee did not take this elementary precaution and the car went on fire shortly after he began the work with the welder. Mr. Joseph McDonald got into the car and drove it into the yard.
The plaintiff then brought this action against the defendant, who issued a third-party notice to Mr. Smith and claimed an indemnity. Mr. Smith died after the notice had been served on him and representation has not been taken out to his estate.
Mr. McDonald did not give the custody of the car to Mr. Smith. The man who did the work and who was Mr. Smith’s employee was grossly negligent. Counsel for the plaintiff has argued that Mr. Smith’s employee became the agent of the defendant who is, therefore, liable for the damage. I think that Mr. Smith was an independent contractor, and that neither he nor his employee became the defendant’s servant or agent at any time.
The defendant is, in my opinion, liable to the plaintiff. When an article is entrusted to a bailee to do work on it for reward and the bailee, with or without the consent of the owner, engages an independent contractor to do the work and this is not a breach of the contract, the bailee is liable for any damage to the article unless the bailee establishes that the independent contractor and he were not negligent or unless the owner has agreed that the bailee is not to be liable for the carelessness of the sub-contractor. The judgments of Lord Pearson and of Lord Justice Sachs in British Road Services Ltd. v. A. V. Crutchley & Co. Ltd. 5 at pp. 820 and 824 of the report support this proposition.
There will be judgment for 691 15s. 0d. The value of the car before the accident was £760 and the salvage value was £150. It would have been uneconomic to repair the car. The plaintiff lost a golf bag (£10), a caddy car (£11), two iron clubs (£4), a pair of shoes (£4 15s. 0d.), some photographic equipment (£17), and he had to pay £35 for the hire of a car.
Sheehy v. Faughnan
[1991] 1 I.R. 426
Barron J.
The plaintiff is an accountant who lives with his wife and family in Tuam, County Galway, but works during the week in Carlow. He is interested in Irish draught horses of which he is a breeder. The defendant is a stud owner with three stallions of which one is an Irish draught. The parties who had previously been unknown to each other met at an Irish Draught Society Show in Clarenbridge in June, 1988. There they arranged that the plaintiff should send an Irish draught mare which he owned to the defendant’s stud.
This mare was six years of age. She had already foaled in 1986 and 1987 but had not foaled in 1988. On Saturday the 9th July having telephoned and spoken to the defendant’s wife the plaintiff brought his mare to the defendant’s stud arriving late in the afternoon. The defendant was particularly busy on that day as he was hosting an Irish Draught Society Show on his premises. The plaintiff says that the defendant told him to put his mare in a particular stable. He says that it was too small, dark and without water or bedding on the floor. He was told that the mare would be kept there temporarily but would be put out to grass. He says that the stud fee was £65 and that he was to pay about £25 for keep which was expected to be about three weeks, long enough to ensure that she was in foal. Before he left he said to the defendant, “Look after her, she is valuable”, and that the defendant replied, “If there is any problem we will be in touch.”
The next event so far as the plaintiff was concerned was that he rang on the 25th July to ask when he could collect the mare. He was told that she had died, probably of a heart attack. He rang back and was given the name of the veterinary surgeon who had carried out the post-mortem. He rang this man who told him that there had been no external injuries and that he had to assume that she died of heart failure. When the plaintiff indicated to him that he would be taking the matter to court, the veterinary surgeon said that he would be quite specific that that was the cause of death.
When the plaintiff called for his horse-box on the 30th July, he was told by the defendant that he had found the mare dead in her stable on the morning of the 13th July. In the course of a conversation as to why the defendant had not contacted him, the defendant at first said that he did not know his name, but ultimately agreed that he did but that he did not know where he lived. The defendant indicated “what did it matter, wasn’t he insured?” On this occasion, the stable had been enlarged and there was a hole in the roof to give better ventilation.
Cathal Lynch, a veterinary surgeon, gave evidence that he had examined the mare for insurance purposes in 1987 and had examined her also in 1988. She was a large animal, not excessively fat and very healthy. He gave her an injection on the 8th July to bring her into season. This date was chosen since the plaintiff only had Saturday in which to deliver his mare to the stud. She would have come into season in between three to five days. In his opinion, unless something untoward had happened, the mare would not have died. He did not accept that a finding of heart failure was a proper finding. If no physical cause was apparent to the veterinary surgeon carrying out the post-mortem then the carcase should have been sent to a regional laboratory for a more detailed examination by a veterinary pathologist. In his opinion, the animal could have become stressed leading to dehydration and death if she had been kept in bad stabling and without sufficient water. The stress and ensuing dehydration would have been apparent to whoever was looking after the mare. He was satisfied that there would have had to have been a cause for her death and that this would have been ascertained on detailed examination by a veterinary pathologist.
Evidence was also given by Gabriel O’Connor an expert in and breeder of Irish draught horses. He knew the mare which was a quality type. In May, 1988, he had advised a prospective purchaser to pay up to £4,500 for the mare. However no offer had been made because the plaintiff let him know that he had already refused £5,000.
On this evidence the plaintiff’s case was based upon the inference that an otherwise healthy animal could not have died unless through some fault on the part of the defendant. The failure to notify the plaintiff was also suggested as evidence that the defendant was suppressing knowledge detrimental to his case.
In addition, the plaintiff sought to allege inferentially that the post-mortem examination involved a different animal because the veterinary surgeon’s certificate referred to a liver chestnut whereas all three witnesses for the plaintiff had given evidence that the mare was a light chestnut. When put to his election as to whether his case was based upon mistaken identity or negligence, the plaintiff’s counsel elected to pursue the latter course.
The defendant denies that the stable was unsuitable or that it was enlarged following the death of the mare. He has been 40 years in the business and apart from this mare only two others, one being his own, had died at the stud. He said in evidence that the stable was a normal size and one in which veterinary tests were carried out, and that it had not been altered in any way. He says that the mare was cared for in his usual manner. She was given water and feed morning and evening and was brought to a sand arena for about five hours every day where there was a water trough. Both on the way to and from the arena, the mare was brought to the outside of the stallion’s stable for the purpose of familiarising the two animals with each other. He found the mare dead at 7 a.m. on the 14th July. She was lying peacefully. There was no evidence that she had thrashed around prior to death nor was the straw bedding disturbed.
He says that the stud fee was agreed at £60 and £6 per week for fees. He denies that he said that the mare would be put out to grass. Once she came into season she would have been brought to the station twice and then would have been put out to grass. He said that the mare was over fat and that he had been told that she had been injected that morning. He said that he had told the plaintiff that because of her size she might be difficult to get in foal and that he said that they would do their best.
The defendant had three stallions and serviced about 200 mares each year. He was a judge of Irish draught horses and had judged here and in England. He tried to contact the defendant by making two telephone calls but without success. The first was to an acquaintance in Galway and the second to the Irish Horse Board. The acquaintance in Galway was unable to help the defendant and unfortunately the records which had been kept by the Irish Horse Board were in course of being changed in form and were unavailable. He denies that he said anything about insurance when the plaintiff collected his horse-box. He says that the plaintiff told him that the mare was insured for £900 on that day and again before he left that she was insured for £1,200. He himself valued the mare at £1,800 depreciating its value because of its colour and that it was not in foal.
The veterinary surgeon confirmed finding the mare lying in her stable without any sign of disturbance. On post-mortem the following day there was no bleeding from an orifice, no internal haemorrhage, no twisting of her gut, no abnormality of heart or lungs. She was not dehydrated. She was fairly fat. He could not determine the cause of death and ascribed it to heart failure.
He wrote what has been referred to as a death certificate. It is in the form of a letter. One such document dated the 25th July, 1988, states:€”
“Dear Sirs,
This is to certify that
(a) at 7 p.m. on 14-7-88 I examined body of a liver chestnut mare at Faulties Stud, Dromod, County Leitrim;
(b) that at 2 p.m. on 15-7-88 I did a post-mortem examination on the above mare €” property of Mr. Flynn Ballinasloe €” at Longford Hunt Kennels care of Mr. John McGuinness Edgeworth Stud County Longford.
In my opinion
(1) the mare had died less than 24 hours when I saw her on 14-7;
(2) cause of death was cardiac failure.”
That certificate was signed Michael Donoghue. A similar letter undated but omitting the words “property of Mr. Flynn Ballinasloe” was apparently given to the defendant. The letter was received by the insurance company on the 2nd October, 1988, together with a covering letter stating that it was copy of the certificate already given to the stud owner. Since he had not kept a copy of this letter, Mr. Donoghue said in evidence that he must have written both letters at the same time. He could not explain the reference to Mr. Flynn nor why it only appeared in one of the letters.
The plaintiff has sought to establish that the defendant deliberately failed to contact him and also that the nature of the stabling was the cause of death. The defendant says that he did what he could to find the plaintiff and that his treatment of the mare was the same as that provided for all other mares brought to his stud.
Most of the hearing was taken up by such evidence and by evidence on the part of the defendant rebutting not only such evidence but the inferences to be drawn from it. Even if I were to accept the evidence given on behalf of the plaintiff in its entirety, it would not be sufficient to establish affirmatively that the mare died by reason of the defendant’s neglect. But the plaintiff did not take it upon himself to establish such cause. He submits, and this is accepted by the defendant, that the onus of proof is on the defendant to show that the mare did not die through such neglect.
I do not think that the defendant deliberately failed to contact the plaintiff. He made two calls which he thought was sufficient. This was not in my view reasonable. Anyone who takes in animals whether for stud purposes or otherwise should be able to contact the owner. The defendant has only himself to blame for being unable to do so. He should in any event have been able to contact the plaintiff. There were only four entries for Sheehy in the relevant telephone directory, three being for Patrick Sheehy. If the plaintiff had been contacted, I am satisfied that he would not have been satisfied with the post-mortem finding and would have required a more detailed examination by a veterinary pathologist. On the evidence, it is probable that such an examination would have determined the cause of death. I accept the evidence of Mr. Lynch that heart failure is a meaningless expression and that the reality is that the cause of the mare’s death has never been discovered. I accept his evidence that the mare was healthy and that there must have been a reason for her death which has not been discovered.
It is immaterial whether cases of this nature are brought in detinue or in negligence. In either case, the onus of proof lies on the defendant to show that the loss did not occur through lack of reasonable care on his part. In Ranson v. Platt [1911] 2 K.B. 291 the plaintiff left her goods in store with the defendant. Her husband claimed the goods to be his property. The defendant refused to hand them over without a court order. This was obtained, but the plaintiff was not informed that the application would be made. The defendant was held to be in breach of duty to the plaintiff since he ought to have told her that such proceedings had been brought by her husband in order to give her an opportunity to be present in court. While the duty to have had the plaintiff before the court may well have been that of the court, the case nevertheless establishes that a bailee owes a duty to the bailor to take reasonable steps to prevent loss to the bailor and that if this can be done by informing the bailor of the threatened loss then such information must be given.
In Coldman v. Hill [1919] 1 K.B. 443 the defendant was a bailee for reward of cattle the property of the plaintiff. Some were stolen, but the defendant made no effort to recover them nor did he notify the plaintiff that they had been stolen. As in the present case, the contract of bailment contained no special terms dealing with loss of the cattle. It was found that the defendant was not negligent in allowing the cattle to be stolen, but that if steps had been taken promptly to trace and recover the animals they would have been recovered. It was held that he had a duty to inform the plaintiff once any of his cattle were found to be missing and that he was in breach of this duty. Since this would probably have prevented the loss, it was held that the defendant was liable.
In both cases, it was found that if the bailor had been notified, the loss would probably have been prevented. Here the loss had already occurred, but the failure to inform the plaintiff was equally material since the cause of the loss would probably have been discovered.
In Joseph Travers and Sons Ltd. v. Cooper [1915] 1 K.B. 73 goods were on a barge which was left unattended. The barge grounded in low-tide but failed to rise with the tide as a result of which it became submerged and the goods were damaged. There was no direct evidence as to why the barge became submerged. It was alleged on behalf of the plaintiff that it was due to the negligent absence of the lighterman. The defendant was unable to show that the goods would have been damaged even if the lighterman had been aboard.
In Houghland v. R.R. Low (Luxury Coaches) Ltd. [1962] 1 Q.B. 694 the article lost was a suitcase and its contents. The plaintiff was travelling by coach and her suitcase was in the luggage compartment. During the journey the coach broke down. After some hours delay, a second coach arrived to which the passengers and luggage were transferred. The transfer took place at night. There was no supervision of the luggage compartment of the first coach while the transfer took place. At arrival at the final destination of the coach the plaintiff’s suitcase was found to be missing. The trial judge found as a fact that it was impossible to say what had happened to the suitcase. It was held that the onus of proof that there was no negligence on the part of the bailee lay on the bailee. How that onus of proof may be discharged is set out in the judgment of Willmer L.J. at p. 162 where he says:€”
“. . . I do not think that it makes any difference whether the case is put in detinue, or whether it is treated as an action on the case for negligence. Whichever be the correct approach, it has been admitted in argument that the plaintiff, by proving the delivery of the suit-case at Southampton and its non-return on the arrival of the coach at Hoylake made out a prima facie case. That prima facie case stands unless and until it is rebutted. The burden was on the defendants to adduce evidence in rebuttal. They could discharge that burden by proving what it fact did happen to the suit-case, and by showing that what did happen happened without any default on their part. They certainly did not succeed in so doing; for the judge was left in the position that he simply did not know what did happen to the case.
Alternatively, the defendants could discharge the burden on them by showing that, although they could not put their finger on what actually did happen to the suit-case, nevertheless, whatever did occur occurred notwithstanding all reasonable care having been exercised by them throughout the whole of the journey.”
On the facts in that case the defendants were unable to discharge the onus of proof on the latter basis. The trial judge held that the failure to have adequate supervision when the luggage was being transferred precluded them from making that case.
The cases establish that there is an onus on the bailee to show that he was not in breach of his duty to take care and that, if he was, that breach was not the cause of the loss. So in both Ranson v. Platt [1911] 2 K.B. 291 and Coldman v. Hill [1919] 1 K.B. 443, the bailee was held liable because he failed to establish that the loss would have occurred even if he had not been in breach of his duty to notify the bailor of the threat to the property. In Travers v. Cooper [1915] 1 K.B. 73 he was held liable on the same basis, i.e. that he could not show that even if the lighterman had been on board, the loss would still have occurred. The decision in Houghland v. R.R. Low (Luxury Coaches) Ltd. [1962] 1 Q.B. 694 is essentially to the same effect.
Applying these principles to the present case, it is clear that the defendant has failed to discharge his burden of proof by proving what did in fact cause the death of the mare. Nor can he establish that what did cause her death occurred notwithstanding all reasonable care on his part, since, through his own fault in failing to notify the plaintiff of the death of the mare, the exact cause of death remains unknown. Accordingly the plaintiff is entitled to succeed.
I accept the evidence of Mr. O’Connor that the value of the mare was £4,500. There will be judgment for that amount.
John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners
[1993] 1 IR 318
Flood J.
H.C.
The plaintiff’s claim in these proceedings is for damages for negligence and breach of statutory duty by the defendant. The plaintiff is a limited liability company carrying on the business of timber merchants and importers of timber. The defendant is the statutory harbour authority for the port of Drogheda in the county of Louth.
The facts
The plaintiff, in the course of its business as timber importers, had over a period of years used the port of Drogheda for the purpose of landing cargos of timber. In the course of the said years it had made use of the services of Messrs. Patrick Monaghan (Drogheda) Limited as its stevedores.
The plaintiff was the consignee of 141 packets of timber aboard the M.V. Mairi Evorard. This ship arrived in Drogheda at 18.30 hours on the 2nd November, 1988, and berthed at the Ferry (or Steampacket) Quay, on the instructions of the Harbour Master. The said quay is the quay nearest to Saint Mary’s Bridge in Drogheda, and the quay itself is a public thoroughfare over which traffic passes en route to other parts of the port and to Termonfeckin and Baltray. No part of it is enclosed.
At the plaintiff’s request the said stevedores arranged customs clearance of the said timber. On the 3rd November, 1988, they unloaded the said timber onto the quayside, using their own crane, and forklift trucks. The timber was stacked some one hundred yards to the east of the ship’s berth in an area where it was customary to stack bulky cargo.
The defendant invoiced Messrs. Patrick Monaghan (Drogheda) Ltd. with tonnage dues and cargo dues. Messrs. Monaghan were also ships’ agents and brokers and, on behalf of the ship’s owner, discharged the said tonnage dues, and, as stevedores and agents for the consignee, paid the said cargo dues. These, with Messrs. Monaghan’s own charges, were contemporaneously invoiced to the plaintiff.
It is common case that the said timber could have lain on the quayside for a period of fourteen days without incurring any charge or rental and thereafter could have lain on the quayside at the discretion of the Harbour Master. If it was not removed on request, a quite substantial storage charge would have been incurred. It is also common case that the defendant had authority, under statute, to seize the said cargo in the event of default of payment of any prior incurred cargo dues or indeed the cargo dues of this particular shipment.
Apart from the said invoice for the said dues no other documentation was raised by the defendant in respect of the said cargo or indeed in respect of the berthing of the said ship.
The defendant specifically concedes that, at no material time, had it any form of security in operation in relation to this area of the quay or to goods stacked thereon.
Sometime after midday on the 4th of November, 1988, a number of children with lighted matches set a tar-like paper, with which the wood was covered, on fire, at several points. The wood, being very dry, took fire, and virtually the entire consignment was consumed, notwithstanding the best efforts of the Drogheda fire brigade.
In due course the plaintiff was paid by its insurers and this claim is made by the insurers on foot of the subrogation clause in their policy.
The plaintiff’s case
The plaintiff lays its claim under three alternate headings:
1. The first ground is that the defendant failed in its common law duty of care which the plaintiff claims was owed to the consignee whilst the said cargo was on the defendant’s premises.
2. The second ground is, that by virtue of the charge made by way of cargo dues, and of its authority in respect of the said cargo, the defendant was a bailee for reward and as such owed a duty of care.
3. The final basis upon which the case is laid is that there is a statutory duty of care arising from s. 47 of the Harbours Act, 1946.
The defendant’s case
The defendant for its part rejects the said argument and contends that it owes no duty of care and has no obligations to the plaintiff in respect of the said goods.
The claim in negligence
I now turn to consider the first ground upon which the plaintiff lays its case. The evidence establishes that on a ship berthing and being unloaded consignees are permitted by the defendant to leave the goods on the quay wall of the harbour facility provided by the Harbour Commissioners. This has been the practice over a great number of years, a practice with which the plaintiff was familiar and in fact in relation to this particular berth is still the case. The area in question is open to the public, and, to say the very least, it would be a very onerous task on the part of any person or body to protect goods left in this situation from either deliberate or accidental damage by third parties. Lord Wilberforce in his judgment in Anns v. Merton London Borough Council [1978] A.C. 728 at pp. 751-752 said:
“[The] position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered the damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may be give rise;”
Subsequently Lord Keith in Peabody Donation Fund (Governors) v. Parkinson (Sir Lindsay) & Co. [1985] A.C. 210 said at p. 241:
“[In] determining whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so.”
In Ireland, Mr. Justice McCarthy in Ward v. McMaster [1988] I.R. 377 considered that the duty of care “arose” from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based on public policy.
On its face, on the facts of this case, what occurred was that the defendant gave a bare permission to consignees to congregate their goods on the defendant’s facility pending their removal to the consignee’s premises. It is undoubtedly true that it was foreseeable that whilst exposed in that position the goods could be liable to damage by third parties, either deliberate or accidental, but that fact must have been manifest not only to the defendant but also to the users of the facility, namely, the various consignees. It seems to me that the reality of the relationship was a bare permission which carried no further obligations of care on the part of the defendant for the very simple reason that it would be virtually impossible to effectively implement. In my opinion the inference to be drawn from the relationship of the parties is that each party knew that the goods were placed and retained on the quayside at the consignee’s risk. Further, the consignee being the person primarily involved, it was for him to evaluate and assess the risk of damage to his goods. If damage flowed from his failure to take steps to eliminate or mitigate such risk the proximate cause of the damage would be his failure to act rationally, and reasonably, and in my opinion, in the circumstances, would negative and override any duty of care on the part of the defendant alleged to arise from any proximity or neighbourhood of the parties. It follows that I am of opinion that in this instance there was no common law duty of care imposed on the defendant and the plaintiffs claim under this heading fails.
The claim based on bailment
The second basis upon which the claim is advanced is one of bailment. In my opinion it is fundamental to a bailment that the bailee has a substantial degree of possession or custody or control over the object bailed. It is argued in this instance that by virtue of the fact that a payment was made, i.e., cargo dues to the defendant, and that it, through its servant, the Harbour Master, could direct where the goods would be placed, and, in certain instances actually seize the goods for non-payment of debt, that that degree of possession or control existed. In my opinion this is not so. In my view a bare permission to deposit goods on the defendant’s premises does not impute the degree of control necessary to create a bailment. The power to direct where the goods should be placed is merely a regulatory power for the good management of the quayside. It does not impute possession or control over the goods themselves such as to involve the defendant with responsibility for the goods. The fact that in some specific circumstances, unrelated to the presence of the goods themselves, arising from a financial default, the defendant might have a right of distraint does not advance the plaintiffs claim of bailment. Counsel for the defendant relied strongly upon the reasoning in Tinsley v. Dudley [1951] 2 K.B. 18 at pp. 25-26 and I derive considerable support from that case for the
views above expressed. Further Romer L.J. in Ashby v. Tolhurst [1937] 2 K.B. 242 said at p. 255:
“[In] order that there shall be a bailment there must be a delivery by the bailor, that is to say, he must part with his possession of the chattel in question. In the present case there is no evidence whatever of any delivery in fact of the motor car to the attendant on behalf of the defendant. All that the plaintiff did was to leave his motor car on the car park paying the sum of 1s. for the privilege of doing so . . . [It] is perfectly plain in this case that the car was not delivered to the defendants for safe custody. You cannot infer a contract by A. to perform a certain act out of circumstances in which A. has made it perfectly plain that he declines to be under any contractual liability to perform that act.”
In my opinion, in the circumstances of this case, it would be wholly unrealistic to infer an obligation of safe custody or care from the mere fact that the defendant permitted goods to be placed in an area customarily used for storing goods and had in very special circumstances a right to distrain for non-payment of debt.
The claim for breach of statutory duty
The final basis upon which the claim is advanced by the plaintiff is under the Harbours Act, 1946, Part V:
Section 47 provides:
“(1) A harbour authority shall take all proper measures for the management, control and operation of their harbour and shall provide reasonable facilities and accommodation therein for vessels, goods and passengers.
(2) A harbour authority shall take all proper measures for the maintenance and operation of all works, structures, bridges, equipment and facilities under their control.”
It is argued that the obligation under that section is to take all proper measures for “the management and control of the harbour” and, under sub-s. 2, all proper measures for the “operation” of “all facilities under their control” and that such proper management of the harbour, using the phrase in an extended sense of the facilities in the harbour area, requires reasonable provision of security or security services in respect of goods deposited in the harbour area. By s. 49 of the Act of 1946 the defendant, with the consent of the Minister, is empowered to make such charges for the use of anything provided by it under the section as it may fix from time to time. Undoubtedly the duties of the harbour authority under s. 47 of the Act of 1946 are very wide but I think that the due performance of these duties must be related to the physical reality presented by the quayside in question. This quay has been used as an open quay virtually since the founding of the harbour back in the seventeenth century. It is in fact part of a public thoroughfare and to impose a duty of safe custody or something akin to safe custody on the harbour authority in relation to goods permitted to be placed on the quayside, and placed there by the owners thereof in the full knowledge that the quayside was open to all and sundry, would be an excessively wide interpretation of the duties imposed by this section and would be unrealistic. In my opinion no such duty can be inferred from this section.
In the circumstances I have no option but to find that the plaintiff’s claim fails. Accordingly I make an order dismissing the plaintiff’s claim. I also award the costs of the proceedings to the defendant.
Jonathan Yearworth & Ors v North Bristol NHS Trust
[2009] EWCA Civ 37 (2009) 107 BMLR 47, [2009] LS Law Medical 126, 107 BMLR 47, [2009] EWCA Civ 37, [2010] QB 1, [2010] 1 QB 1, [2009] 3 WLR 118, [2009] 2 All ER 986
Judge CJ
Bailment
Shortly prior to the hearing we indicated to counsel that we wished to hear argument whether, independently of an action in tort, the men had a distinct cause of action against the Trust under the law of bailment. This led to written and oral argument at the hearing, supplemented by further written argument afterwards (albeit without extensive citation of authority), and to our decision to accede to Mr Townsend’s application to amend the men’s claims so as to include an allegation that there had been a gratuitous bailment of the sperm by the men to the Trust, that the Trust had undertaken to take due care of the sperm and that it had broken its undertaking.
Had we reached the conclusion that the law in respect of parts or products of a living human body precluded our holding that the men had ownership of sperm for the purposes of their claims in the tort of negligence, it would clearly have been important for us to proceed to enquire whether nevertheless they had such lesser rights in relation to it as would render them capable of having been bailors of it. Our conclusion that the men had ownership of it for the purposes of their claims in tort obviates the need for that particular enquiry: for from that conclusion it follows a fortiori that the men had sufficient rights in relation to it as to render them capable of having been bailors of it. Nevertheless it remains necessary for us to consider whether the men have a cause of action in bailment as well as in tort. For, as we will explain, the measure of damages might be more favourable to them in bailment than in tort.
We shall summarise the relevant principles of the law of bailment:
(a) A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee: Coggs v. Bernard (1703) 92 E.R. 107.
(b) Although eroded to a limited extent by principles later to be developed in relation to involuntary bailment, the basic justification for casting duties upon a gratuitous bailee has always been that a person is not obliged to take possession of a chattel in relation to which another person has rights and that, if he chooses to do so, he assumes duties: see Coggs, at 108 per Powell J.
(c) Thus “the obligation arises because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods”: see the advice of the Privy Council in Gilchrist Watt and Sanderson Pty. Ltd v. York Products Pty. Ltd [1970] 1 WLR 1262 at 1268H.
(d) A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto: Midland Silicones Ltd v. Scruttons Ltd per Diplock J, [1959] 2 QB 171 at 189, and Hodson LJ, [1961] 1 QB 106 at 119.
(e) Reservation by the bailor of a right to require that the chattel be ultimately restored into his own possession or to his order is not necessary to a contractual bailment (see, for example, every contract for hire-purchase and for carriage of a chattel to the bailor’s purchaser) and there is no ground for application of any different principle to a gratuitous bailment. Mr Stallworthy submits that the reservation of such a right is inherent in the requirement that the bailor should hold “some ultimate or reversionary possessory right” (in the words of Professor Palmer on Bailment, 2nd ed (1991) p.2). He also relies on Washington University v. Catalona (2006) 437 F Supp 2d 985, U.S. District Court, Eastern District of Missouri (a decision later affirmed by the U.S. Court of Appeals, 8th Circuit: 490 F 3d 667) in which it was held, at 1001, that persons who had donated their bodily tissue to the university for research had no continuing rights in relation to it as bailors primarily because they had indeed donated it but also because regulatory provisions (not unlike those under our Act) would in any event have precluded its restoration to them. In our view the most interesting feature of Washington University is the acceptance by both courts that the tissue was “donated”, i.e. was property capable of passing from the donors to the donee. From this it followed that the donors had abandoned any possesory interest in the tissue. The university was not a bailee but a donee. We therefore respectfully disagree with the obiter remarks of the judge at first instance and we reject Mr Stallworthy’s submission.
(f) A gratuitous bailee assumes a duty to take reasonable care of the chattel. “This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a very fine line, difficult to discern and impossible to define”: see the advice of the Privy Council in Port Swettenham Authority v. T.W.Wu and Co. (M) Sdn. Bhd. [1979] AC 580 at 589C-D.
(g) If a gratuitous bailee holds himself out to the bailor as able to deploy some special skill in relation to the chattel, his duty is to take such care of it as is reasonably to be expected of a person with such skill: Wilson v. Brett (1843) 152 ER 737.
(h) We are unpersuaded that it follows from the fact that the bailment is not contractual that the liability of the gratuitous bailee must lie in tort. Absent authority to the contrary of which we are unaware, we are strongly attracted to the view that his liability is sui generis; and, so far as we know, this is all best explained in Professor Palmer’s book (above) at pp. 44 et seq.
(i) Indeed it may be that, where the gratuitous bailee has extended, and broken, a particular promise to his bailor, for example that the chattel will be stored in a particular place or in a particular way, the measure of damages may be more akin to that referable to breach of contract rather than to tort. This proposition is advanced, albeit with hesitation and with virtually no supporting authority, by Professor Palmer both in his book (above) at pp. 79 – 80, and in his commentary on damages in bailment in Halsbury’s Laws of England, 4th ed., Vol 12(1), at §1093.
When in the light of these principles, we revert to the facts of the present claims, we find as follows:
(a) The unit chose to take possession of the sperm. Although its offer to store sperm was part of the Trust’s overall provision of oncological medical services, in return for which no doubt it received public funds, any bailment of the sperm must be classified as gratuitous.
(b) The unit’s assumption of responsibility for the careful storage of the sperm was express and unequivocal: “we can undertake to look after [it] with all possible care”, quoted at [6(c)(iii)] above.
(c) The unit acquired exclusive possession of the sperm.
(d) The unit held itself out to the men as able to deploy special skill in preserving the sperm.
(e) Analogously to its admission in relation to the claims in tort, the Trust admits that, if the unit was a bailee of the sperm, it was in breach of the duty of care consequent upon the bailment.
(f) The unit extended, and broke, a particular promise to the men, namely that the sperm “will be stored … at minus 196°C …”, quoted at [6(c)(ii)] above.
In the above circumstances we conclude without hesitation that there was a bailment of the sperm by the men to the unit and that, subject to the resolution of factual issues yet to be determined, the unit is liable to them under the law of bailment as well as under that of tort. Indeed, in the light of our findings at [49(f)] above, the measure of any damages may be more akin to that referable to breach of contract rather than to tort.
Recoverability for Psychiatric Injury
For reasons already explained, the judge addressed this fourth issue only upon the hypothesis, which he rejected, that, in respect of negligent damage to their property, the Trust was liable to the men in tort. But we must address it upon the basis of our conclusions that, in that respect, the Trust is in principle liable to the men not only in tort but also in bailment.
Catherine Henry (trading as Sight & Sound Film Library) v Leslie Sanderson
High Court
1 June 1972
[1972] 106 I.L.T.R 12
Griffin J.
If the bailment were for reward, as it was here, the onus shifts to the defendant. The projector and cartoons had been hired to the defendant and not returned. He had placed them in the back of his car, valuable property, nearly £300 worth, and he was negligent in that in the surrounding circumstances he did not take reasonable care to protect them.
Robert Barr for the defendant submitted that everything that should be done was in fact done. The defendant parked his car under a street lamp, he covered the equipment with a rug, he locked the door and was absent for about ten minutes, and it would be harsh to say he did not take reasonable care.
Griffin J.:
Here, in my opinion, the plaintiff is entitled to succeed. The onus of proof is on the defendant. The proper thing would have been to lock the equipment in the boot of the car. The standard of care required is the care one would take of one’s own goods, and to take reasonable care against foreseeable risks. I will allow for depreciation and give a decree for £224 and costs and expenses.
McElwee v McDonald
[1969] IR 432
KENNY J. :
In December, 1967, the plaintiff was the owner of a Humber Sceptre motor car. The defendant owned a small garage, which was at the back of the plaintiff’s chemist shop, and had done repairs to a Ford motor car which the plaintiff owned before he bought the Humber. Shortly before Christmas, 1967, the plaintiff heard a rattle in his car and brought it to the defendant who
[1969]
1 I.R. McElwee v. McDonald
Kenny J. 438
looked underneath it and saw that the exhaust pipe had almost come away from the silencer. The defendant said that the pipe would have to be welded to the silencer and that, as he had not any welding equipment, he would get a Mr. Smith (who had such equipment) to do the work. It was agreed that the defendant would collect the plaintiff’s car when an arrangement with Mr. Smith, for a suitable day to do the work, had been made by the defendant. Mr. Smith had always done the defendant’s welding work. The plaintiff says that he thought that the defendant was going to do the work and that he had never heard of Mr. Smith until the car was damaged. I am convinced that the defendant told the plaintiff that the welding work would be done by Mr. Smith, that the plaintiff did not understand this or was not listening but that the plaintiff behaved in such a way that Mr. McDonald rightly assumed that consent was being given by the plaintiff to the work being done by Mr. Smith. Nothing was said about liability for damage. When the work was done, the plaintiff would have paid the defendant who would have paid Mr. Smith.
Joseph McDonald, the defendant’s son who works in his father’s garage, called to the plaintiff at about 9.30 a.m. on the 1st January, 1968, and said that he was collecting the car to bring it to Mr. Smith to get the work done. The plaintiff asked him to have the car returned at 1 o’clock in the afternoon and, as the welding work was not expected to take more than 15 minutes, Mr. Joseph McDonald agreed to return it at this time. The plaintiff gave the keys of the car to Mr. Joseph McDonald who drove it to Mr. Smith’s premises in Dolphin’s Barn where it was put over a pit in the floor. Mr. Joseph McDonald decided to wait until the work was done. The safest way to do the work was to take off the exhaust pipe and to do the welding when the pipe was on the ground. This would, however, take more time. The other way of doing the work was to leave the pipe in position and to weld it into the silencer by working underneath the car in a pit; this way is quicker but it is dangerous unless the petrol tank and the supply pipe from it are covered with asbestos sheeting so that the heat and sparks from the welding equipment will not ignite the petrol fumes. Mr. Smith’s employee did not take this elementary precaution and the car went on fire shortly after he began the work with the welder. Mr. Joseph McDonald got into the car and drove it into the yard.
The plaintiff then brought this action against the defendant, who issued a third-party notice to Mr. Smith and claimed an indemnity. Mr. Smith died after the notice had been served on him and representation has not been taken out to his estate.
Mr. McDonald did not give the custody of the car to Mr. Smith. The man who did the work and who was Mr. Smith’s employee was grossly negligent. Counsel for the plaintiff has argued that Mr. Smith’s employee became the agent of the defendant who is, therefore, liable for the damage. I think that Mr. Smith was an independent contractor, and that neither he nor his employee became the defendant’s servant or agent at any time.
The defendant is, in my opinion, liable to the plaintiff. When an article is entrusted to a bailee to do work on it for reward and the bailee, with or without the consent of the owner, engages an independent contractor to do the work and this is not a breach of the contract, the bailee is liable for any damage to the article unless the bailee establishes that the independent contractor and he were not negligent or unless the owner has agreed that the bailee is not to be liable for the carelessness of the sub-contractor. The judgments of Lord Pearson and of Lord Justice Sachs in British Road Services Ltd. v. A. V. Crutchley & Co. Ltd. 5 at pp. 820 and 824 of the report support this proposition.
There will be judgment for £691 15s. 0d. The value of the car before the accident was £760 and the salvage value was £150. It would have been uneconomic to repair the car. The plaintiff lost a golf bag (£10), a caddy car (£11), two iron clubs (£4), a pair of shoes (£4 15s. 0d.), some photographic equipment (£17), and he had to pay £35 for the hire of a car.
Lynas v Willis
County Court.
1 June 1897
[1898] 32 I.L.T.R 48
Action brought by the plaintiff against the defendant for £18, being loss and damage sustained by the plaintiff by reason of the defendant having undertaken and agreed to train and take proper care of the plaintiff’s horse while in his possession; yet the defendant did not take due and proper care of said horse, but injured him to such an extent that plaintiff suffered loss in the amount aforesaid. There was a cross action for the livery of the horse during training. Plaintiff had delivered a six-year-old horse to the defendant to be trained to harness. Defendant first put the horse in harness and long reins, then yoked him to a brake and attempted to drive him. The horse first of all plunged about and lay down, but after a little coaxing went quietly for a short distance; he then suddenly made a plunge, reared, and fall *48 ing, broke his knees, notwithstanding that they were protected by knee-caps. Plaintiff brought an action for the loss of value occasioned by the broken knees. It was proved by several witnesses that the defendant had taken all precautions usual in the training of horses, and had driven the horse carefully and skilfully.
Representation
Mr. M’Gonigal, solicitor, for the plaintiff.
Hanna, for the defendant, cited Wilson v. Brett, 11 M. & W. 113.
His Honor.
The defendant cannot be made liable in this case. He is in the position of a bailee who has to bestow labour on the thing bailed for remuneration. If he takes proper precaution, and, having regard to his professed occupation, is reasonably careful he is not liable for anything which may happen. The defendant has been reasonably careful, and took the precautions usual in such cases. I accordingly dismiss the action for negligence, and give a decree for the full amount of the keep at livery.
Representation
Solicitor for the plaintiff: D. M’Gonigal.
Solicitor for the defendant: Thomas Barkley.