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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 60
Don Lye
171346040
police say this has to be done.
Vehicle is the victim of theft in the car yard.
Plaintiff brings an action against the car yard.
Judge SG Erber
“Mr Brennan was advised by Traffic Officer Barnfield that his car would have to be towed
away because to leave it where it was, created a road hazard. Mr Brennan said that he
was unhappy for this to be done because he had valuable things in the car but in the end
agreed that the car could be taken away so long as, as he said, ‘it was looked after’. He
did not know where the car would be taken to or what the storage facilities were.”
“The evidence of Mr Brennan, which I accept, is that he agreed that SIMU should take the
car away and indeed paid it for its services.”
“This being, so I find, a contract of bailment for reward, and it being the case that the
goods in question while in the possession of the bailee were stolen, the burden of proving
lack of fault is on the bailee – SIMU.”
“it is for the bailee to prove that in all the circumstances he took reasonable care and that
in spite of such care having been taken the loss occurred. It is only when that burden is
discharged by the bailee that it will be absolved from liability.”
“The first question, therefore, to be decided is whether SIMU has shown that it was not
required to provide either an alarm system, a night watchman or (having regard to the
fact that, known to SIMU, opportunities in the Wise Street yard appear to have been well
known to burglars), another place for the storage of damaged cars. I do not think that it
has done so. I do not therefore consider that SIMU has shown that it took the necessary
and appropriate degree of care.”
“The next matter to consider is whether, had the necessary and appropriate degree of
care been taken, the damage would (probably) anyway have occurred. “
o
I think that it is highly likely that had an audible alarm system or alternatively, a
night watchman, been provided, this theft would not have occurred. The provision
of other more secure premises would have had a similar prophylactic consequence.
Whatever the standard of proof is in any event, SIMU have not to my satisfaction
shown that had precautions such as I have mentioned been taken, the thefts would
(probably) in any event have occurred.”
“For the reasons which I have given, I consider that the defendant is liable in damages to
the plaintiff for the loss which the plaintiff suffered.”
Commentary
The fact that opportunities in the caryard appears to have been well known to burglars –
affected the duty of care to guard against that. Reasoning similar to
Conway v Cockram
Motors
where the thieves were likely to be familiar with the knowledge that the keys were
usually left in the ignition.
5.12
B
AILEE
D
EVIATING
FROM
C
ONTRACT
OF
B
AILMENT
Deviation is a potent weapon in bailor's arsenal, assuming their facts fit the required
circumstances.
Deviation originated in age of historical carriage of goods by sea –
where the stipulated
route would be extremely important to the cargo owner because if the captain has a
stipulated route which looks safe, then the bailor may in assessing risk may decide to
entrust goods to that particular vessel.
60
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