Clarke v Cook Islands Airport Authority [1993] CKHC 2; 083.1992 (10 May 1993)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 83/92

BETWEEN

TREVOR CHARLES CLARKE
of Rarotonga, Company Director
Plaintiff

AND

THE COOK ISLANDS AIRPORT AUTHORITY
as constituted under the Airport Authority Act 1985
Defendant

Counsel: PA Oliver for Plaintiff
A Manarangi for Defendant

Date: 10th May 1993.

JUDGMENT OF QUILLIAM J

This is a claim for damages for loss suffered by the Plaintiff to goods while in the possession of the Defendant as a gratuitous bailee.

The facts as I find them are these.

The Plaintiff had an interest in acquiring a billiard table which he knew to belong to the Airport Club and which was stored in a disassembled condition. He had previously acquired another table in similar condition and had it fully restored and he contemplated doing the same with a second table. This table was stored in a large shed situated on the property of the Defendant. The Plaintiff inspected it there and then concluded the purchase of it from the Airport Club. This was in June 1988.

He arranged shortly after for the parts of the table other than the slates to be removed and sent to New Zealand for refurbishment. The slates which were very heavy and were stacked in a single pile were left in the shed. The Plaintiff arranged with the Senior Administration Officer of the Defendant, Mr Siona Paku, for the slates to be left where they were and it is clear that Mr Paku had authority on behalf of the Defendant to make such an arrangement. Moreover, Mr Paku acknowledged that he had reported the arrangement made to the Defendant's Chief Executive Officer, who had agreed to it.

In his evidence Mr Paku said that he thought this was to be a temporary storage which he defined as one of 6 months duration. He acknowledged, however, that he did not tell the Plaintiff this, and the Plaintiff was entitled to believe that the storage was for an indefinite period, although, of course, he could have been required to remove the slates at any time. There were four or five slates, each of sufficient weight as to require about four men to lift them.

Eventually at about the end of 1991, having received back the refurbished table from New Zealand, the Plaintiff went to collect the slates only to find they had gone. The storage shed was by then partly let to tenants, and in particular, that part in which the slates had been was let to a freight forwarding company.

The Plaintiff spoke to Mr Paku in an attempt to obtain the slates. Mr Paku made a number of enquiries as a result of which he concluded that the slates had probably been dumped.

The present Chief Executive Officer said in evidence that he was aware of the slates being stored, and recalled having seen them at one time stacked against the side of the shed in a compound which was surrounded by a high fence and with gates which were secured by lock.

There is no evidence to conclude that the slates were stolen, but the probability is that they were dumped or otherwise disposed of by someone who was unaware of their value.

In these circumstances the Plaintiff has claimed against the Defendant as gratuitous bailee upon the basis of conversion, or detinue, or negligence.

There is no doubt that the Defendant was the gratuitous bailee of the slates and accordingly the onus lies on it to prove that the loss of the goods "was not caused by any fault of (the bailee) or of any of his servants or agents ..." (see Port Swettenham Authority v T W Wu and Co. (1978) 3 All ER 337 at p. 340 per Lord Salmon).

The nature of the obligation upon a gratuitous bailee has been differently expressed, but for the purpose of this case I am content to accept that the least onerous obligation should be applied. This is that it was for the Defendant to exercise reasonable care, namely, that which a reasonable man would take of his own goods in similar circumstances.

Applying this test, and whether one considers the matter in conversion, detinue or negligence, much the same result is achieved. It is difficult to accept that the slates could have disappeared unless the employees of the Defendant had failed to exercise the standard of care referred to.

It was known to the Defendant and those employees whose duties involved dealing with the contents of the shed that the slates were being held on behalf of the Plaintiff. If - there came a time when it was not convenient for them to be kept there any longer it was only necessary to ask the Plaintiff to remove them. Instead they were taken outside and stacked in the compound. It is unlikely they were stolen from there, but the probability is they were dumped. It is in this regard that the Defendant's employees failed to exercise reasonable care.

I have no doubt that the Defendant must be held liable for the Plaintiff's loss, and it remains only to determine the amount of that loss.

I consider that the liability of the Defendant lies both in conversion and dentine. In either case the proper measure of damages is the replacement or market cost, which amounts in the circumstances too much the same thing. The Plaintiff had to replace the slates in order to complete the assembling of the table. He has produced evidence of the cost of the replacement at $4000, together with freight $526.94 and levy and documentation charges of $420. This total sum of $4946.94 is in my opinion the correct measure of damages.

There will accordingly be Judgment for the Plaintiff for $4946.94 and costs.

QUILLIAM J