Brian Stephen Hinks (Respondent (Plaintiff) v E. M. Fleet (trading as Silver Sands Caravan Park) (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE LLOYD,MR. JUSTICE HOLLINGS |
| Judgment Date | 29 July 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0729-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0699 |
| Date | 29 July 1986 |
[1986] EWCA Civ J0729-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HASTINGS COUNTY COURT
(His Honour Judge Hammerton)
Royal Courts of Justice
Lord Justice May
Lord Justice Lloyd
and
Mr. Justice Hollings
86/0699
MR. WILLIAM ALAN FEATHERBY (instructed by Messrs Young Jones Hair & Co.) appeared on behalf of the Respondent/ Plaintiff.
MR. DAVID J. LAMMING (instructed by Messrs Herrington Willings & Penry-Davey, Hastings) appeared on behalf of the Appellant/Defendant.
This is an appeal, which has been attractively argued on both sides, from a decision of His Honour Judge Hammerton at the Hastings County Court in a reserved judgment on 22nd October 1985. On that occasion the learned judge, after a trial eleven days earlier, held that the plaintiff was entitled to recover £2,250 damages, together with £400 interest and costs from the defendant in respect of the loss of the plaintiff's caravan from the defendant's caravan park in circumstances to which I shall briefly refer. The defendant by this appeal seeks to have that judgment set aside and judgment entered for him.
The facts of the case are as follows. The defendant at the material time was a proprietor of a caravan park at Camber, Sussex. That caters for both permanent or static pitches where caravans can be parked on a permanent or semi-permanent basis, and a touring park where caravans remain for a short period of time, perhaps one week's holiday. Having had a look at the site—which, it is accepted on all sides, was very efficiently and well conducted, pleasantly situated, adjoining the beach and with excellent facilities—the plaintiff liked it and in April 1980 he arranged to take a semi-permanent pitch for the rest of the then current season.
The basis upon which the site was conducted at the material time was that the season ran from 1st March to 31st October in any one year. The charge for taking a pitch for the season was £180. For that price a caravan owner, such as the plaintiff, acquired the right to place his caravan on the pitch assigned to him and the right to use the services and facilities of the site, all subject to the regulations which understandably the site owner imposed under the contract which he entered into with the caravan owner to take the relevant pitch. In addition the caravan owner acquired the right to leave the caravan on the site for any period after 31st October and before 1st March of the following year when out of season the site was kept closed and locked, except for the purpose of allowing the caravan owners with caravans inside to remove their caravans or other caravan owners to bring them in in anticipation of the following season.
Having entered into his contract with the site owner(in the terms to which I shall refer hereafter), the plaintiff put his caravan on the particular pitch allotted to him. He left it there during that season and visited it from time to time. When the season ended he continued to believe that he still had his caravan on the site until about January 1981 when he decided to make different arrangements for the following year and to take his caravan touring instead of having it on one site for the whole season. On getting in touch with the caravan owner, he found that his caravan was no longer on the site.
What had happened, as the learned judge found, or would have been inclined to find had it been necessary for him to do so, was that a third party had stolen the caravan from the site towards the end of September or early October 1980, that is to say, during the summer season. Nobody had noticed the caravan going; nobody noticed the fact that it had gone until the plaintiff telephoned and the theft was discovered. The plaintiff was insured.
His insurers paid him out for the value of the caravan and its contents and these proceedings were brought in the name of the plaintiff by the insurers by way of subrogation.
The claim was laid in negligence. By the particulars of claim a bailment was alleged. In addition or alternatively it was said that it was an implied term of the agreement between the plaintiff and the defendant that the defendant would take all due care of the caravan whilst it was on the site. As was accepted on all sides, if there was in the circumstances of the instant case a bailment of the caravan to the defendant, and when called upon the defendant was unable to produce it, the onus lay on him to show that the caravan had disappeared without negligence on his part. Anticipating, and without prejudice to what I shall say in a moment, the learned judge held that, if there had been any obligation on the defendant caravan park owner to use reasonable care with regard to the caravan, there had been a breach of that obligation. I think there was evidence upon which the learned judge could reach that conclusion and accordingly, although the finding of breach was challenged at the hearing of this appeal, if it were material at the end of the day, I do not think that that challenge could be successfully maintained.
Be that as it may, it is necessary first, and as part of the story, to refer to some of the terms of the contract entered into between the plaintiff caravan owner and the defendant caravan park owner in relation to the plaintiff's caravan in the summer season of 1980. It is not in dispute that the terms of the contract, subject always to any implied term as to the use of reasonable care, were contained in the application form which the plaintiff signed in obtaining the particular site upon which he was allowed to put his caravan for the season of 1980 and the rules and conditions which were in either booklet form or at any rate handed to the caravan owners, and the plaintiff in particular, when the contract was made. The application form began:
"I hereby apply for a site for the caravan described below for the 1980 season, commencing 1st March and ending 31st October, at an annual fee of £180. electric £24. main services £25."
It is unnecessary to go through the whole of the application form in detail; I refer only to two particular paragraphs of it. First of all paragraph 4:
"I understand and agree that no instalments are returnable and that the Park Owner shall have a general lien upon the caravan and other property brought on to the Park in respect of the licence and other reasonable charges."
Finally the last clause:
"I undertake and agree to keep the caravan fully and comprehensively insured whilst it is at Silver Sands Caravan Park."
In addition there were other clauses in the application form making it clear that what was being given by the park owner to the caravan owner was no lease or tenancy of the particular site, but merely a licence to place the caravan on that pitch.
In so far as the rules and conditions are concerned, in rule 1 it was provided that "Caravans must be placed where required by the Park Owner". That was followed by a number of regulations giving the park owner, it was submitted, substantial powers of control over the use of the caravan on the site. In particular in condition 9 it was provided that "A key to each caravan must be deposited at the Park Office for use in case of emergency". By condition 17 "No caravan may be moved without the permission of the Park Owner". That, again, appears in the middle of other terms and conditions regulating the use of occupation of the caravan in its pitch and the caravan park itself. Those I need not recite in full. One comes finally to condition 21 which is perhaps the most important of the conditions of this contract. That is in these terms:
"LIABILITY Vehicles and caravans are admitted on condition that the Park Owner Shall Not be liable for loss or damage to (a) any vehicle or caravan (b) anything in, on or about any vehicle or caravan however such loss or damage may be caused….."
On those facts and, having regard to the terms of the contract which I have briefly outlined, the learned judge in the present case held that the relationship constituted between the caravan owner and the caravan park owner comprised a bailment of the caravan, the one to the other, and not a licence, and that even in the summer season between March and October. That being so, he secondly held that a duty of care was thereby imposed upon the caravan park owner in relation to the caravan bailed to him by the plaintiff, and, as I have already indicated, that there was a breach of that duty of care in the respects to which he referred.
Finally the learned judge held that the limitation of liability clause condition 21, which I have just quoted, did not cover loss to the plaintiff as the result of negligence on the part of the defendant caravan park owner. In any event it spoke of loss to the caravan and not loss of the caravan, as one might have expected, and that in the result, there being the duty, there being the breach and there being no adequate exclusion clause, the plaintiff succeeded. It was on that basis that the learned judge in the court below found liability.
Both before him and before us Mr. Lamming, on behalf of the defendant, relied specifically on the decision in Halbauer v. Brighton Corporation [1954] 1 WLR 1161. That was a case in which the facts were in many ways very similar to those of the instant case. There the plaintiff owned a caravan. The Brighton Corporation ran a municipal camping ground. The season in that case ran from the first Sunday in March to the last Sunday in October, during which time owners of caravans were...
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