A Bailee's Onus of Proof: General Considerations
| Author | Robert H Tanha |
| Pages | 211-245 |
211
Chapter 4
A Bailee’s Onus of Proof: General Considerations
A. INTRODUCTION
A bailee’s onus of proof is more complicated than a bailor’s in that there
are varying levels of liability that can apply to a bailee, depending on how
the bailment is classied and on the circumstances presenting. A bailee’s
onus of proof is triggered once a bailor meets its onus of proof—that is,
when the bailor proves that its goods were lost or destroyed while in the
custody of the bailee. The bailee’s onus is a heavy burden indeed, as it
presumes that the bailee’s negligence caused the loss or damage at issue
unless the bailee rebuts that presumption.1 The duty of care on a bailee
may last for a long period of time, such as in the case of a long-term stor-
age, or may subsist only for a very brief time.2
1 James Crossley Vaines, Personal Property, 5th ed (London: Butterworths, 1976) at 96.
2 For an example of the latter, see Evans v Northside Security Services Ltd, [2002]
NWTJ No 95 (Terr Ct). There, despite the very brief time the plainti’s personal
property was in the hands of a security company at the airport he was departing
om, while he went through screening, enough time had passed to create a bail-
ment and a relatively heavy duty of care on the defendant bailee to disprove that its
negligence had caused the loss, which it ultimately failed to do when the plainti’s
property was stolen om the screening area by an unknown third party.
212 •
) Rationale for a Bailee’s Heavy Onus of Proof
The rationale for the heavy reverse onus of proof on a bailee was well
described by Aikins J in The “Ruapehu”:3
The original principle seems to be grounded on a common sense view of the
facts. The bailee knows all about it: he must explain. He and his servants
are the persons in charge; the bailor has no opportunity of knowing what
happened. These considerations, coupled with the duty to take care, result
in the obligation on the bailee to show that the duty has been discharged.
The above rationale certainly breaks down, as we have seen, where both
the bailee and bailor have had possession of the goods at the material
times, or have exercised control over the goods, and where the bailee is
not, strictly speaking, the only party with information as to what hap-
pened to cause the bailor’s losses.4 A bailee for reward has oen been said
to owe a bailor a higher degree of care than does a gratuitous bailee. Indeed,
dierent standards of care can sometimes apply during the course of the
same bailment, requiring courts to apply a stricter or more relaxed onus
of proof on the bailee, depending on when the loss in question occurred.5
) Various Ways in Which a Bailee’s Onus Has Been Described
inLaw
In law, a bailee’s onus of proof has been described in a myriad of ways.
This has been perplexing, if only because certain descriptions seem to
posit a higher, or at least dierent, standard than others. Some state that
a bailee must merely show that it took “reasonable care” of the bailor’s
goods during the course of the bailment in order to escape liability, or,
alternatively, that any lack of reasonable care did not contribute to the
bailor’s losses.6 Others have required the bailee to explain how the injury
3 (1925), 21 LL LR 310, as quoted by Thorson P in R v Halifax Shipyards Ltd (1956), 4
DLR (2d) 566 at 571 (Ex Ct) [Halifax Shipyards].
4 See, for example, Kinsella v Club “7” Ltd, [1993] NJ No 365 (SCTD) [Kinsella]; Halifax
Shipyards, above note 3.
5 See, for example, Ritchie Bros Auctioneers Ltd v Chabot & Levesque Logging Ltd, [1982]
BCJ No 1415 (Co Ct) [Ritchie Bros].
6 Carpenter v Cargill Grain Co, 1982 CanLII 1123 at para 12 (Alta QB) [Carpenter]. See
further: British Motor Corp of Canada Ltd v Ross E Judge Auto Transport Ltd, [1966]
NSJ No 11 at para 33 (SC) [British Motor].
A Bailee’s Onus of Proof: General Considerations • 213
of the bailed goods was caused, and then to negative negligence in rela-
tion to that cause.7 As apparent, the latter standard is far more onerous
than the former standards and may result in the bailee’s being xed with
liability in circumstances where the cause of the loss of the bailed good
cannot be ascertained. Many courts also speak of the bailee’s standard of
care as equalling what a prudent owner of the goods would have done in
the circumstances. We shall explore these standards and descriptors in the
discussions that follow and identi the prevailing trends in the caselaw.
) A Bailee’s Varying Levels of Liability Based on the Nature of
the Bailment: Coggs v Bernard
That a bailee’s varying levels of liability depend on the nature of its under-
taking is traceable to the o-cited and venerated decision of Coggs v Ber-
nard,8 decided by Sir John Holt CJ in the King’s Bench. In that case, the
plainti hired the defendant to transport several barrels of brandy om a
certain cellar in which they were stored to a location a short distance away.
There was no charge made for the transport—that is, it was done gratuit-
ously. While the brandy was being unloaded at its new location, one of the
casks carrying the liquor was broken and many gallons of brandy were spilt
and lost. The chief justice refused to disquali the bailment on the basis
of a lack of consideration, nding that the trust reposed in the defendant
(bailee) required him to take reasonable care of the goods. In the process,
Holt CJ set out six classes of bailment9 with varying standards of care:
1) Depositum: A bare-naked bailment where a bailee accepts a bailor’s
goods into its custody to keep them for the use of the bailor. This is
a bailment without reward. Here the bailee is liable only if the goods
are lost or damaged while in its care because of its gross neglect; com-
mon or ordinary neglect will not make the bailee chargeable.
7 See Laidlaw JA’s discussion in Stables v Bois, [1956] OJ No 620 at paras 7–9 (CA).
Paton rejects this standard as being too high, “to an absurd extent” (quoting Lord
Halsbury), concluding that the onus should not require a bailee to explain “exactly”
how the loss was occasioned, but instead only to prove denitively that the loss was
not caused by any want of care on its part: Sir George Whitecross Paton, Bailment in
the Common Law (London: Stevens & Sons, 1952) at 166–67 as cited in British Motor,
above note 6 at para 33.
8 (1703), 2 Ld Raym 909 (Eng KB) [Coggs].
9 Ibid at 912–920.
To continue reading
Request your trial