Bidesi v Millers Limited [1976] FJLawRp 24; [1976] 22 FLR 139 (12 November 1976)

[1976] 22 FLR 139

SUPREME COURT

Civil Jurisdiction

SHIU PAL BIDESI

v

MILLERS LIMITED

Kermode J.

12th November, 1976

Bailor and bailee — destruction of chattel whilst in bailee's possession — onus of proof on bailee to establish that chattel not damaged as result of his negligence.

Damages — assessment — chattel damaged in traffic accident and subsequently by fire at repairer's garage.

Practice and procedure — discovery of documents — mutual discovery mandatory unless both parties agree otherwise — order for discovery once made by court must be obeyed — improper for parties to waive discovery after order made — Rules of the Supreme Court 1968 0.24 rs. 1, 2, 3, 16.

Whilst in the possession of the defendant company, the plaintiff's car, already damaged in a traffic accident, was destroyed by fire. The defendant company was unable to produce any acceptable evidence that it had taken reasonable care of the car, and thus discharge the onus of proof that the car was not damaged as a result of its negligence.

To enable the court to assess the measure of damages, the plaintiff must prove the damage to the car caused by the accident, its value after the accident, and the amount by which it had depreciated as a result of the subsequent fire.

Rules of the Supreme Court 0.24 rs. 1 & 2 made automatic mutual discovery of documents mandatory unless the parties agreed otherwise. Once, however, an order for discovery had been made by the court, it could not be waived unilaterally by one or both parties, and must be complied with.
Cases referred to:
Houghland v R. R. Low (Luxury Coaches) Ltd. [1962] 2 All ER 159; [1962] 1 QB 694.
Morris v C. W. Martin & Sons [1965] 2 All ER 725; [1966] 1 QB 716.

Action in the Supreme Court for damages for negligence, detinue and conversion.

KERMODE J.: [12th November 1976] –

The plaintiff's vehicle M167 was damaged in an accident on the 22nd January 1973 and the plaintiff instructed the defendant to take his vehicle from the scene of the accident to its garage. On the evening of the day in question the defendant brought the damaged car to its garage and left it in its yard. Later that night the car caught fire and suffered further damage. The plaintiff alleged the fire was caused by the negligence of the defendant particulars of which were pleaded.

In the alternative the plaintiff claims in detinue and for conversion. The alternative claim must fail as the plaintiff admitted that before issue of the writ he had transferred the property in the wrecked car to his insurers, Bankers and Traders Insurance Company Limited.

Before dealing with the merits of the action I would refer to a matter to which I have referred in other actions.

An order was made by the court on the 14th November 1973 for discovery of documents. Neither party complied with this order. When this was drawn to the attention of counsel, counsel for the plaintiff advised the court that both counsel had agreed to waive discovery.

A court order must be complied with and cannot be waived by counsel. 0.24 rule 16 sets out the penalties for failure to comply with an order for discovery. Failure to comply with an order for discovery is in my experience a frequent occurence and legal practitioners' attention is drawn to the provisions of 0.24. An order should not be sought unless the other party fails to comply with rules 1 and 2 of Order 24 but once obtained must be complied with.

Practitioners appear to be ignoring rules 1 and 2 of Order 24 which make automatic mutual discovery of documents mandatory unless the parties agree to dispense with or limit discovery. It could be that practitioners are interpreting 0.24 r. 1(2) as permitting parties to dispense with discovery after an order has been made by the court for discovery. In my view if a party seeks an order of the court for discovery the court must assume that the party seeking the order has not agreed to dispense with discovery which is required under rules 1 and 2 and the court's assistance is sought under 0.24 r. 3(2) to compel the other party to make discovery. The notes to 0.24 r. 3 indicate that the object of this rule is to obtain an order against a party who has not fulfilled his obligations under 0.24 r. 1(2) in my view refers to the situation where a party is required by Order 24 to make discovery and not to the situation where the court has ordered discovery.

In the circumstances the court waived compliance with the order but it is expected that in future attention will be paid to the provisions of Order 24 and that orders of this court will not be sought unless the other party has not complied with rules 1 and 2 or there are circumstances which necessitate a formal court order.

To return to the merits of this action one issue to be considered is the allegation of negligence.

The defendant was in the position of a bailee of the plaintiff's car. While in the defendant's possession the car was damaged by fire.

The duty of a bailee is to exercise due and reasonable care for the safety of an article entrusted to him. He is not apart from special contract an insurer and therefore in the absence of negligence on his part he is not liable for the loss or damage done to the chattel due to some accident, for the acts of third parties or the unauthorised acts of his servants (Halsbury 4th Edition Vol. 2 para. 1539). The onus of proof in the instant case that the car was not damaged as result of the defendant's negligence lies on the defendant.

All the plaintiff has to establish, and he has done so, is that the car was damaged whilst in the possession of the defendant. The burden then shifts to the defendant to establish that the damaged occurred notwithstanding all reasonable precautions taken by the defendant. In Houghland v R.R. Low (Luxury Coaches) Ltd. [1962] 2 All ER 159 a case where there was loss of luggage the cause of which was unkown, all the plaintiff had to establish was the failure to return the suitcase which established a prima facie case. The defendant had the burden of proving that reasonable care had been taken and was unable to discharge that burden.

Lord Denning M. R. in Morris v C. W Martin & Sons Ltd. [1965] 2 All ER 725 at p. 731 stated:—

"Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servants. If the goods are lost or damaged whilst they are in his possession, he is liable unless he can show—and the burden is on him to show—that the loss or damage occurred without any neglect or default or misconduct of himself or any of the servants to whom he has delegated his duty"

In the instant case the defendant adduced no acceptable evidence that it had taken reasonable care of the damaged car.

No witness was called by the defendant who saw the fire. There was evidence that the defendant employed a night watchman but he was not called. Mr M. J. Patterson a company manager employed by the defendant was called as a witness. He could not say whether the night watchman was on duty on the night of the fire. All he could say was that it was the usual practice. He did state the defendant's yard was fenced and that there were gates which were locked at night but he did not state they were locked that night. He did admit that no extra precautions were taken other than usual precautions which he did not specify. He also admitted the watchman was not trained in fire precautions and that there were fire extinguishers inside the garage building but not outside the building.

There was in fact no evidence as to what precautions the defendant took after the car was left in the defendant's yard to ensure it was not damaged. Nor was there any evidence as to how the car caught fire. I find that the defendant has failed to establish that it took reasonable care to keep the car safe on the night it caught fire and it must be held liable for the fire which further damaged the car.

As to the measure of damages the plaintiff has been of no assistance to the court. He has claimed $1,000 damages and it is clear that he arrived at this figure by taking Mr Dunn's valuation of $2,200 (exhibit 1), which I accept, and deducting $1,200 he received from his insurer. He stated he transferred ownership of the wreck to his insurers but he did not state on what terms the transfer was made. I can only assume the insurers considered the car a total loss and settled the claim for $1,200 on condition that the wreck become the property of the insurers.

What the plaintiff should have proved, and made no attempt to do so, was the damage to the car caused by the accident and its value after the accident and by what amount the value of the damaged car was further depreciated by the fire. After a lapse of close on 4 years since the fire the fire loss is probably not ascertainable. There is no evidence as to whether the car still exists in the condition it was after the fire. I do not accept the plaintiff's estimate of the cost of repairing the car due to the accident but do accept Mr Grader's estimate. Nor do I accept the plaintiff's statement that having carefully inspected the accident damage he intended to have the car repaired. Mr Grader's evidence indicates that cost of repairs due to accident damage was close on $3,000. The plaintiff in my opinion is a shrewd businessman and I cannot believe he would have spent a further sum of close on $1,800 of his own money to restore a car to the pre-accident value of $2,200. It would not be economic to do so.

I can only approach the problem of damages by considering that the car after the accident must be treated as a total loss except for the value of the salvageable and saleable parts of the wreck. That value was certainly depreciated by the fire. Apart from evidence that the interior of the car was gutted by the fire there is no evidence as to what items were burnt or their value before the fire.

While the plaintiff's loss is $1,000 this loss is a combination of loss due to the accident and the fire. It would appear that the plaintiff could have retained the wreck and still have received $1,200 from his insurers as the accident damage was considerably in excess of $1,200. He chose however to transfer the wreck to his insurers. The bulk of his $1,000 loss was not attributable to the fire damage but the accident and his failure to take out sufficient insurance on the car to cover the pre-accident value of the car.

As Mayne on Damages eleventh edition states "Difficulty in assessing damages is no reason for refusing to award damages or for awarding only nominal damages". Where as in this case, a distinct sum has not been established by proof, damages can only be ascertained by having the damages assessed by the Chief Registrar with a further opportunity being given to both parties to adduce evidence limited to establishing the value of the car after the accident and before the fire and the value after the fire on the basis that the car was not economically in a repairable state after the accident. The difference between the two values so ascertained shall be the damages to be awarded to the plaintiff.

I can appreciate that there could be problems in assessing the damages but these are problems which have arisen because of the plaintiffs conduct of his case.

The court is aware that the trial was delayed due to the parties endeavours to settle this action. As a result of my finding for the plaintiff and the views I have expressed the parties may consider that a further effort to agree the quantum of damages may resolve this matter.

There will be judgment for the plaintiff for damages to be assessed by the Chief Registrar in the manner I have referred to above and the costs to be taxed if not agreed.

In the event that the Chief Registrar is unable due to the disappearance of the wreck as an entity or for any other cause to assess the damages liberty is reserved for the parties to apply generally to the court for further directions.

Judgment for the plaintiff