LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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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 46
Don Lye
5.3 B
In ordinary civil proceedings, the burden is on plaintiff to establish their case on the
balance of probabilities.
Suppose we have a bailment and the bailor (owner of goods) is suing the bailee.
The bailor must establish two things:
The existence of a bailment.
The fact that goods were lost or damaged while in care of bailee.
Then after establishing these points, the onus moves to bailee to negative fault.
E.g. moving company takes possession of your goods and makes an inventory of the list of
items taken. Subsequently, the goods were destroyed.
If sue in negligence – must prove affirmatively that the bailee was negligent.
If sue in bailment – much easier – 2 things to establish a bailment clearly proven –
onus shifts to the bailee to negative fault.
This is clearly established in
Wilson & Horton Ltd v Attorney General
[1997] 2 NZLR 513
“At common law, a custodian for reward must exercise reasonable care for the
safety of the property entrusted to it. The degree of care is that which may
reasonably be expected from a skilled warehousekeeper acquainted with the risks.”
“As to the burden of proof, in an action for negligence the general rule is that the
plaintiff must prove a breach of the duty of care.”
“But when goods or property are damaged in the possession of a bailee, the bailee
must prove either that it took appropriate care of them, or that its failure to do so
did not contribute to the loss. The bailee's burden of proof is not merely a shifting
onus, or the onus of going forward with evidence. It is what is sometimes described
as an ‘ultimate onus’. Whilst the bailee does not face the burden of providing an
exact explanation of the event or injury, if a defendant leaves it doubtful whether
the particular damage was due to its fault, the plaintiff should succeed.”
Shipbuilders Ltd v Benson
[1992] 3 NZLR 549 (CA)
Defendant provided a service through a boat shed which provided maintenance to boats.
Plaintiff used defendant's service – there was a fire in the boat shed which caused substantial
damage to the plaintiff’s vessel.
The cause of the fire could not be identified.
The fire arose at night time – when the bailee’s servants were not present.
Key had been given to the plaintiff – who could access the shed at nighttime to carry out
Plaintiff sues for the damage.
– was there a bailment? If yes, how does the onus apply on the particular facts?
Gault J (Judgment of the Court)
Rejects the reverse onus applied by the trial judge – reverse onus only applies during work
hours – after work hours, not fair to cast the reverse onus on the bailee who was not even
Applies a more refined approach.
In other words, during after hours – if loss occurs there, the bailor must prove that
the bailee was negligent – rather than have the advantage of the reverse onus.

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