IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 247 OF 1995

Between:

CARPENTERS FIJI LIMITED
Plaintiff

and

VIRENDRA KARAN
s/o Ram Karan
t/as VIRENDRA MOTOR REPAIRS
Defendant

Mr. H. Lateef for the Plaintiff
Ms. T. Jayatilleke for the Defendant

JUDGMENT

The Plaintiff claims from the defendant the sum of $40,478.00 together with interest for loss suffered by it in circumstances stated hereunder.

Background

The defendant is or was a repairer of motor vehicles at his garage at Vatuwaqa, Suva. In June 1994 five vehicles were delivered to him for repairs to be carried out for reward. The defendant's garage caught fire on Sunday 3 July 1994 resulting in damage to the said motor vehicles. Although not pleaded, the defendant's counsel in her written submission says that the fire did not start in the defendant's garage, but in a building some distance away and spread to it. The Plaintiff alleges that the defendant failed to take proper care of the vehicles.

Consequently, the Plaintiff has been put to expense and inconvenience and has suffered loss. For one of the vehicles (CQ916) the Plaintiff was re-imbursed by the insurance Company and hence it makes no claim on that vehicle. The others were sold on a "as is where is" basis and shortfall is $40,478.00 which the plaintiff is now claiming.

The facts as agreed by counsel are that the said vehicles were delivered to the defendant at his premises for repairs and that due to fire in the defendant's garage on 3 July 1994 they were damaged.

Issues

The issues for Court's determination are: 1. Is the defendant liable to the Plaintiff in damages to its motor vehicles?; 2. If so, the extent of liability.

Both counsel made written submissions and I must deal with them.

The only oral evidence that I have before me is that of ROGER POWELL, Manager Service Stations, called by the Plaintiff.

Plaintiff's submission

The Plaintiff's evidence as adduced through POWELL is that in 1994 when he was branch Manager of Suva operations of Plaintiff, someone reported to him that certain vehicles as mentioned in the Statement of Claim were given to the defendant for repairs at his garage at Vatuwaqa. These vehicles were burnt on 3 July 1994 and were returned to it in damaged condition. The amount which is claimed (except for CQ916) is made up as follows and costs have been reflected in stock sheets: CQ916 - $50,441, CO227 - $20,228, CB138 - $9896, BU955 - $8471 and BT924 - $7283. He said that these were repossessed vehicles and the amounts shown are "not necessarily value of vehicles". The vehicles were given to the defendant "to raise value". Tenders were called and the last four vehicles were sold for $2000, $300, $1300 at $1800 respectively. On CQ916 there was insurance and the insurance company paid for it but the other four were not insured. Therefore damages is claimed against the defendant in respect of them.

In cross-examination he said that the amount shown are the amounts "owed on the repossessed vehicles - figures may be more - may not be actual value". He said that he is not the person who handles this and he "cannot tell what procedure adopted when vehicle handed." He does not know how the vehicles are "stored" in the garage and that he has not been there. He became aware of the fire but he does not know how it started. He did not visit the garage either. He could not say through whose negligence the fire started.

It is the Plaintiff's argument that the goods, viz. the vehicles, were bailed to the defendant and as required under the following sections 30 and 31 of INDEMNITY, GUARANTEE AND BAILMENT ACT CAP 232. (the 'Act') the bailee is bound to take care and if he takes the amount of care described in s.30 then the defendant is not responsible for the loss:

30. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed.

31. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care of it described in section 30.

Mr. Lateef argued that the defendant chose not to give evidence to discharge the onus that lay upon him to negative any negligence on his part once the goods were bailed to him. There is no evidence to show where and how the fire started.

Mr. Lateef relied on NORTHUMBERLAND COUNTY SCHOOL FINANCE BOARD v STEWART (54 D.L.R. (2d) 657) where a bus given for repairs was burnt down in a fire in the garage. He also referred to GOGAY & SONS v GIRWAR SINGH & SONS (20 FLR 55) and ALI HUSSAIN v PURAN (11 FLR 210) which state that the duty is on the bailee to show that he took good care of the goods, and if destroyed or lost, that it had occurred without any fault on his part.

Defendant's submission

Ms Jayatilleke argues that the defendant had not been negligent and that he exercised care which a man of ordinary prudence would exercise under "similar circumstances" as required under sections 30 and 31 of the Act.

She submits that the Plaintiff must show that, on the balance of probabilities, not only that the defendant was careless but also that the carelessness caused the damage which the plaintiff claims. She relies on BARNETT V CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE (1968) 1 ALL E.R. 1068).

It is further submitted by her that the Plaintiff has failed to discharge the burden of proving negligence on the part of the defendant. For this she cites WILSHER v ESSEX AREA HEALTH BOARD (1988) 1 A.C. 1074 H.L. She says that the defendant could not reasonably have foreseen that such an accident would take place. It is submitted that no one could reasonably have foreseen that a fire which began in a building some distance from the defendant's garage would eventually travel to his garage and cause the damage that it did. Consequently, she says, the onus of proving causation as required by WILSHER (supra) has not been satisfied by the Plaintiff.

Consideration of the issue

At the outset I must say that the Court is bound by pleadings and it cannot go outside it in considering the issues before it. As already stated above there is nothing in the pleadings to say that the fire which damaged the said vehicles started elsewhere and spread to the defendant's garage. For the learned counsel to so state in her written submission without either a verbal or affidavit evidence, cannot be considered.

It is in the light of the above background and as stated in the evidence of the Plaintiff's only witness that I have to decide the issues before me.

In this case the degree of care to be exercised on the part of the defendant bailee are set out clearly in the said sections 30 and 31. There is no evidence whatsoever as to what 'care' the defendant took or how the fire started. There is no suggestion in the Amended Statement of Defence that fire started elsewhere. Nor is there any indication about it in the minutes of the Pre-trial Conference in the admitted facts apart from stating that "due to fire in the Defendant's garage on 3rd July 1994, the Plaintiff's vehicles were damaged".

As a general principle how to determine liability for negligence has been stated as follows in MARE RICH & CO AG and OTHERS v BISHOP ROCK MARINE CO LTD and OTHERS (The NICHOLAS H) (The Times 7 July 1995 at p.34) but in the situation such as the present the onus shifts on the defendant to show that he exercised the degree of care required of him:

"In order to determine a defendant's liability for negligence the court had to consider not only foreseeability and proximity but also whether it was fair, just and reasonable to impose a duty of care. Those three requirements were convenient and helpful approaches to the question whether a duty should be imposed in any given case. Whether a duty should be imposed in any particular circumstances depended upon the circumstances." (emphasis mine)

As Mr. Lateef submits, the said sections of the Act impose the same degree and standard of care as that required by common law. The authorities referred to hereabove and others to which I shall hereafter refer support this proposition.

In STEWART (supra at p.657) (a decision of the Supreme Court of Canada, Appellate Division) it was stated that the onus lay upon the bailee to discharge the burden. The headnote reads:

"The onus is upon a bailee to show that any loss of or damage to the bailed article was not occasioned by the absence of reasonable care and skill. It is not necessary for the bailee to prove how the accident happened as long as facts are shown which negative negligence on his part. However, where a bus is destroyed in a garage by fire and where the evidence shows only that there was no fire in the furnace, no Welding being done, no inflammable liquid or substance in the garage, no person smoking and that there were eight fire extinguishers and the floor was cement, regularly cleaned with varsol, the onus has not been discharged." 

The law regarding proof of negligence of a bailee has been stated in STEWART (supra at p.659) by BRIDGES, C.J.N.B. as follows:

"The law regarding proof of negligence of a bailee has been stated by this Court in Piper v. Geldart, [1954] 2 D.L.R. 97, 33 M.P.R. 171, where the plaintiff's goods, which the defendant agreed to move free of charge in a motor van, were destroyed while in transit by a fire which broke out in the van. In his judgment, Richards, C.J., referred with approval to that of Hogg, J.A., in McCreary v. Therrien Construction Co. Ltd., [1952] 1 D.L.R. 153, [1951] O.R. 735, a case where a cabin trailer, owned by the plaintiff and rented to the defendant, was destroyed by fire. In his judgment, Hogg, J.A., said at p.158:

"In my view the evidence leaves the issue of negligence in doubt, in other words it is not possible to come to a clear conclusion one way or the other and if the onus rested on the plaintiff, in my opinion, he would fall. But because the rule of law casts the onus on the defendant, this, is the determining factor in holding the defendant to be liable."

On the question of burden of proof BRIDGES, C.J. goes on to state at p.659 to 660 with reference to authorities thus:

In his judgment in Piper v. Geldart, after also referring with approval to McCreary v. Therrien Construction Co. Ltd., Harrison, J., said at p.105:

The result is that after a bailment has been established the burden is upon the bailee to show that any loss of or damage to the article bailed was not occasioned by the absence of reasonable care and skill. This is the burden of establishing his case, which means that if the evidence is evenly balanced judgment must go against the defendant.

In Joseph Travers & Sons, Ltd. v. Cooper (1914), 83 L.J.K.B. 1787, Buckley, L.J., referred at p.1793 to an unreported House of Lords case, Morison, Pollexfen & Blair, Ltd, v. Walton (1909), in which Lord Halsbury said:

"It appears to me that here there was a bailment made to a particular person, a bailment for hire and reward, and the bailiff was bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment. The proof of that rested upon him."

Just as in the case before me, so in STEWART no evidence "was given of even the possible cause of fire which did not happen when the garage was closed with no person in it" (STEWART p.660). I agree with Mr. Lateef that having failed to give evidence, the defendant has not discharged the onus which lay upon him to negative any negligence on his part. Hence he is liable in damages to the Plaintiff.

In another case namely SMITH v TAYLOR 1966 2 Lloyd's List L.R. 231 it was similarly held by BLAIR J that "although plaintiff had not shown probable cause of fire, onus was on the defendant (as bailee) to prove that he was not negligent;..." This was a case of Plaintiff's car being destroyed by fire while being repaired at defendant's garage due to defendant's employee's negligence. In his judgment at p.234 BLAIR J states the law on this subject as follows:

"The position in law is that the defendant, being a bailee, is at common law under a liability to establish that, when a vehicle entrusted to his care is damaged, that did not happen through negligence on his part or his servant's or agent's part. It is therefore necessary, even when the plaintiff's expert witness could not establish the probable cause, for the defendant, if he sought to escape liability, to call evidence."

The same principle as in the above case was stated in I & J HYMAN (SALES), LTD v A. BENEDYK & CO., LTD (1957) 2 Lloyd's List L.R. p.601 where it was held:

"that at common law the onus of proof was on defendants, as bailees, to prove absence of negligence on their part; and that, in those circumstances, where defendants pleaded provisions of a statute, to the effect that if a fire began accidentally the occupiers (defendants) were not liable, it was for defendants to prove the defence which they had set up, i.e., that the fire was accidental, and this the defendants had failed to do."

The thread that runs through the authorities is that it is for the bailee to discharge the onus of proof. No consideration can be given to matters which have not been pleaded particularly here the Counsel's assertion that the fire started elsewhere and spread to defendant's premises. However, in any case it is for the defendant to prove the defence which he sets up and this he has failed to do. I have weighed the evidence before me on a general balance of probability as this being civil proceedings.

Mr. Lateef also referred to two local cases of GOGAY (supra) and ALI HUSSAIN (supra) which state the law applicable to the issue before me in this case. In the former it was held:

"The respondent firm, as bailee of the goods, was responsible for their return and if it failed in this duty, it rested on it to prove that it had taken proper and reasonable care of the goods and that what happened, had occurred without default on its part."

Conclusion

In the outcome, for the above reasons, particularly on the state of the law relating to duties of a bailee, the Plaintiff is entitled to succeed. The defendant does not escape the responsibility for negligence which I have already found. As for damages the defendant has not seriously disputed the value of the vehicles. I am satisfied on a balance of probabilities that the values stated could safely be accepted as the price of the vehicles. There will therefore be judgment for the Plaintiff in the said sum of $40,478.00 with costs in the sum of $350.00 unless counsel wish to address me on it.

D. Pathik
Judge

At Suva
10 December 1997
HBC0247J.95S