NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02508.x |
| Date | 01 January 1983 |
| Published date | 01 January 1983 |
NOTES
OF
CASES
DEFINING
THE
DUTY
OF
THE
SUB-BAILEE
IN
several decisions in the modern law of negligence, the defendant’s
assumption of a consensual obligation towards one person has been
accompanied by the creation of a comparable duty of care towards
another.’ While it may yet be unsafe to regard these cases as
a
decisive
assault on the doctrine of privity, in some respects the ulterior duty
of
care does show some contractual characteristics.a Certainly it can often
be said that without the original contract the defendant would not have
entered the relation of proximity which made the plaintiff’s loss
foreseeable. The question may therefore arise, whether the terms and
circumstances of that contract can effectively negate or modify the duty
owed to the third party. In most cases privity will rule out any question
of a contractual modification. The problem is rather to identify the
conditions on which certain duties of care arise, and their conceptual
foundation. Are they founded essentially on foresight, or do they
depend upon a voluntary assumption of responsibility? Can the frontiers
of the defendant’s primary undertaking define the duty he owes to
someone other than the person to whom that undertaking was given
?
There has been little judicial exploration of this question. An innova-
tive but rather impressionistic response to contemporary demands
confronting the tort of negligence has left the original nature of certain
classes
of
non-contractual duty of care ambiguous
or
ob~cure.~ Only
recently,
in
Junior
Books
Ltd.
v.
Veitchi
Co.
Lrd.,4
has an appellate court
shown itself specifically aware
of
the relevance of the primary contract in
demarcating the scope of an ulterior liability in tort. Even here, the
House of Lords did little more than acknowledge the possibility of an
extra-contractual application of the terms of the contract itself. At one
time, however, it seemed that a helpful analogy might be derived from
the law
of
bailment. In
Johnson
Matthey
&
Co.
Ltd.
v.
Constantine
Terminals
Ltd.6
Donaldson
J.
held that a principal bailor, who sued
an ultimate bailee
for
breach of the latter’s duty to safeguard the goods
against theft, was bound by the essential terms of the subsidiary
bailment although their imposition did not result from any authority in
the intermediate bailee. Regrettably, this decision has been largely
*
The leading examples are probably
Ross
v.
Cartnrers
[I9801 Ch. 297;
J.E.B.
Fasteners
Ltd.
v.
Marks Bloom
&
Co.
[1981]
3
All E.R. 289; [1982]
The
Times,
July 24 (C.A.);
Yianni
v.
Edwin
Evans
&
Sons
[1981] 3
All
E.R.
592;
Junior
Books
Ltd.
v.
Veitchi
Co.
Lrd.
[I9821 3 W.L.R. 477 (H.L.). See
also
Sfandard CharferedBank
v.
Walker
[1982],
3
All E.R.
938 (C.A.).
e.g.
in the type
of
damages awarded and the question of an expectation interest: see
Ross
v.
Caunters
[I9801 Ch. 297;
cJ
Scott
Group
Ltd.
v.
McFarIane
[I9781 N.Z.L.R. 553.
Contrast, for example, the different views
of
Lord Denning M.R. and Salmon
L.J.
in
Minister
of
Hoirsing
and
Local
Government
v.
Sharp
[I9701 2
Q.B.
223. The same may be
said
of
some decisions where the court felt unable to discern a duty
of
care:
e.g. Moorgare
Mercantile
Co.
Ltd.
v.
Twitcliings
(19771 A.C. 890 (H.L.).
[I9821 3 W.L.R. 477 (H.L.).
119761 2 Lloyd’s Rep. 215; Palmer,
Bailment,
pp.
819
etseq.
73
74
THE
MODERN LAW REVIEW
[Vol.
46
neglected.6 A recent decision of the Court of Appeal fails to pursue the
implications
of
Donaldson
3.3
approach or to provide any analysis
of
the wider issues in the law of negligence at large. Although concerned
with bailment,
it
is decided purely on the question of foresight in
negligence, to the corresponding detriment of bailment and negligence
alike.
The facts of Awudv.
Pillui
are simple and the judgments remarkably
laconic. Awad bailed his car to Pillai to be resprayed. Pillai lent the car
without authority to Averil Nathanielsz, whose own car was also with
Pillai for respraying. In handing
it
over, Pillai led Nathanielsz to believe
that the car was his own and that he had insured it. Nathanielsz drove
the car negligently and it was written off. Awad sued both her and Pillai
for the damage but Pillai disappeared. Judge Lipfriend held Nathanielsz
innocent of conversion but liable in negligence to Awad. She now
appealed to the: Court of Appeal.
Nathanielsz argued that she should owe no duty of care to Awad, of
whose existence and ownership she neither knew nor had cause to know.
Her defence was based on a straightforward reading of Lord Atkin’s
speech in
Donoghue
v.
Stevenson.8
Awad was not, in her submission,
someone
so
closely and directly affected by her conduct that she should
reasonably have contemplated him as being thus affected. Nathanielsz’s
(presumably reasonable) belief in Pillai’s ownership of the car removed
Awad from the area of the duty of care. Counsel further cited
McLoughlin
v.
O’Brian
as authority for the view that even a foreseeable
victim of an act of carelessness may fall beyond the scope of the liability
in negligence.
The court dismissed the appeal. The only member to deliver a
reasoned judgment was Waller
L.J.
and he declared simply that the
person most closely affected by Nathanielsz’s negligence was the owner
of
the car. Awad was within the range of duty owed by Nathanielsz and
she was liable to him. Each member of the court expressed sympathy for
her, Donaldson L.J. venturing the hope that
“
the true villain
”
Pillai
would be brought to account.
With resp’ect, this approach fails to do justice to the issues raised by
the case.
A
(closer regard for Nathanielsz’s potential position as bailee
would have produced a more useful and satisfying decision. This is
important because, despite their apparent novelty, the broad facts may
not be uncommon.1o
It seems quite clear that the lack of authority in an intermediate bailee
to create the subsidiary bailment does not of itself preclude the
Cf.
Tlre
New
York
Sfar
[I9801
3
All
E.R.
257
(P.C.),
where a possible application
of
Donaldson
J.’s
decision did not, in the event, fail
to
beconsidered.
’
(19811
Th(e
Times,
June
6.
(19321 A.C. 562.
(19811 2
’W.L.R.
1014
(C.A.):
the decision has since been reversed
by
the House
of
Lords
[I9821
;!
All
E.R.
298.
lo
The problems arising from the fact that the possessor
of
a motorvehicle may
not
be
its owner extend
beyond
questions of
neino
daf
to
third-party liens and damages payable
by
third-party tortfeasors:
for
a recent example of the last
of
these, see
H.L.
Molorworks
(
Willesdeit)
Ltd.
v.
Alivalrbi
[I9771
R.T.R.
276 (C.A.).
To continue reading
Request your trial