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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 55
Don Lye
171346040
5.6 T
HE
C
ONCEPT
OF
A
R
EWARD
5.6.1.1.1
Houghland v Low (Luxury Coaches) Ltd [1962] 1 QB 694
5.7 C
ONSEQUENCES
OF
THE
DISTINCTION
5.8 C
AUSE
OF
ACTION
Historically, bailment for reward was treated as a contractual issue; gratuitous bailment as
a tortious issue. See:
o
Walker v Watson
[1974] 2 NZLR 175.
o
Southland Hospital Board v Perkins Estate
[1986] 1 NZLR 373.
o
Skyway Service Station Ltd v McDonald
[1986] 1 NZLR 366
5.9 S
TANDARD
OF
C
ARE
Houghland v Low (Luxury Coaches) Ltd.
Southland Hospital Board.
Conway v Cockram Motors.
o
Because it was commonly known at that time that cars in showroom were left
unlocked and with the key available, the standard of care would take into account a
thief with industry knowledge.
Wilson & Horton Ltd v Attorney General.
o
The subject matter of bailment was newsprint (highly combustible material) so in
fixing relevant standard of care, duty on bailee would be more onerous than for a
non-specialised product.
Port Swettenham Authority v Wu.
o
Highly valuable pharmaceutical products – need for the bailee to be extra vigilant
and have good security to make sure the goods were not stolen – higher duty of
care.
55
Page 56
Don Lye
171346040
5.10
B
AILOR
’
S
C
ONSENT
TO
R
ISK
5.10.1.1
Walker v Watson
[1974] 2 NZLR 175
(SC)
Person with sportscar valued at $3000 (very high back in the day).
Lends his sportscar to 2 very inebriated girls after very repeated demands – initially said no.
2 girls get into an accident and damage the car.
Mahon J
On the facts, the bailor had consented to the risk.
o
“I am of the opinion that under all the circumstances of the case the respondent, in
handing over his car to a girl who was unfit to drive, voluntarily assumed not only
the physical but also the legal risk of any damage which might be caused by the
negligent driving of the appellant. Accordingly the respondent was precluded from
recovering damages in action.”
Commentary
Note that this case was back in the day when the case was classified as a gratuitous
bailment – and therefore tort rules applied. Discusses the defence of
volenti non fit injuria
.
5.10.1.1.1
Brabant v King [1895] AC 632
5.11
S
PECIAL
C
IRCUMSTANCES
WHICH
MAY
INFLUENCE
THE
STANDARD
OF
CARE
5.11.1
Special skill of the bailee.
if bailee holds themselves out as possessing certain skills/knowledge, then they will be
held to this standard – assuming they have engendered a reasonable expectation
correspondingly in the bailor.
May be reflected in a higher standard of care.
5.11.1.1
Wilson v Brett
(1843) 152 ER 737 (Exchq)
Case concerning the bailment of a horse.
Horse was entrusted to someone take to a certain place.
Parke B
“The defendant was shewn to be a person conversant with horses, and was therefore
bound to use such care and skill as a person conversant with horses might reasonably be
expected to use: if he did not, he was guilty of negligence.”
“In the case of a gratuitous bailee, where his profession or situation is such as to imply the
possession of competent skill, he is equally liable for the neglect to use it.”
56
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