Bailees for Reward: Specific Considerations When Assessing the Standard of Care
| Author | Robert H Tanha |
| Pages | 246-321 |
Chapter 5
Bailees for Reward: Specic Considerations
When Assessing the Standard of Care
A. INTRODUCTION
A bailee for reward is dierent than a gratuitous bailee, as, in the for-
mer case, the bailee is receiving recompense for the bailment. This gen-
erally means that the bailee will owe a more rigorous duty of care to the
bailor. In a bailment-for-fee situation, there are many factors that a court
considers, oen in dierent contexts, in deciding whether the bailee has
made out its applicable standard of care. While the contexts considered
in this chapter should not be considered an exhaustive list, a review of
the caselaw indicates that the considerations discussed here should form
part of the standard of care analysis of bailments for reward.
B. SPECIFIC CONSIDERATIONS
) A Bailee Needs to Disprove Negative Negligence and Show
Reasonable Care Was Taen Only in Respect of Losses at
Have a Proper Evidentiary Foundation
A bailee needs to disprove negligence only in relation to causes of loss that
have a proper evidentiary foundation and not in relation to all possible
causes of a bailor’s losses, no matter how remote those causes may be. In
Riverview Truck Repair Ltd v Phillips,1 the respondent’s truck was stolen
aer being le in the appellant’s unsecured parking lot until replacement
Bailees for Reward: Specic Considerations When Assessing the Standard of Care •
parts could be procured and repairs eected. Specically, the respondent
had contracted with the appellant to have it repair the diesel motor of its
truck. Aer the vehicle was moved into the appellant’s garage and brief
work was done to it, it was realized that additional replacement parts had
to be ordered to make the repairs. The parts were ordered om the appel-
lant’s usual supplier. In the meantime, the appellant, in accordance with
its standard practices, placed the respondent’s vehicle, unlocked, in an
unsecured parking lot adjacent to the repair shop. This happened on a Fri-
day. The vehicle was immobile and could not be moved om the premises
except by tow truck. The keys to the vehicle were stored in the appellant’s
building in an unlocked case. The respondent testied that, prior to the
the on Saturday morning (the day following the appellant’s placement
of the vehicle in the adjacent lot), he had driven to the appellant’s prem-
ises and observed that one of his vehicle’s windows was down and that
there were parts lying on the back of the truck and also on the ground. The
respondent further testied that he had tried to address these issues with
the appellant by knocking on the door of the workshop where he saw work-
ers, but no one responded.2 On the following Tuesday, the parts arrived at
the defendant’s premises and the appellant rst became aware that his
truck had been stolen. The keys to the truck were found undisturbed in
the case they had been placed in inside of the appellant’s repair shop.
The respondent sued the appellant in bailment for the loss of the
vehicle, which he argued was wholly attributable to the appellant’s failure
to lock the truck’s doors and store the vehicle in a secure area. The trial
judge in the court below, while appearing to acknowledge that these alleg-
ations were not enough in and of themselves to x liability against the
appellant if the truck remained in a disabled state on the lot at the time of
the the, theorized that repairs could have been made on Saturday mor-
ning prior to the the, allowing the truck to be driven away rather than
towed.3 In reaching his conclusion, the trial judge reasoned as follows:
Although I nd as a fact that the truck could not be started in its state
of disrepair when parked on Friday aernoon, I am not satised that it
could not be started aer it had been further worked on Saturday mor-
ning. There is no evidence that the required parts could not have been
obtained om some source other than the defendant’s usual supplier
2 Ibid at paras 1–3.
3 Ibid at paras 2–4.
•
and the evidence is that the qualied mechanics who had access to the
building could have eected such repairs.4
The trial judge noted further that the appellant’s repair shop was access-
ible to several persons on non-working days; that these persons could
have had easy access to keys belonging to the respondent’s vehicle; and
that the keys had been found undisturbed following the the. The trial
judge accordingly xed liability against the appellant, nding that it had
not adopted appropriate procedures to protect the respondent’s vehicle
om the. Essentially, it had not negatived the by its employees or
others involved in the possible removal of the vehicle.5
On appeal, Robertson JA of the New Brunswick Court of Appeal
accepted the appellant’s argument that the trial judge’s nding of liability
was based on erroneous and unreasonable inferences of fact that the evi-
dentiary record simply did not support: “In my view, the trial judge made
a palpable and overriding error in speculating that the appellant’s mech-
anics or others might have ordered the needed parts om another sup-
plier and that the truck’s engine had been repaired such that the vehicle
could have been driven o rather than towed.”6
Justice Robertson of the Court of Appeal found that the appellant
had met its applicable standard of care in the circumstances, that the
respondent’s vehicle had been disabled so that any failure to lock the
doors was inconsequential; that the appellant had placed the keys inside
of its repair shop, ustrating their use by third parties for nefarious
purposes; and that imposing a greater standard of care on the appellant
would be unduly burdensome on repair shop businesses.7
Justice Robertson of the Court of Appeal was correct to have over-
turned the trial judge’s decision in favour of the respondent here. Bailees
should not be required to provide an explanation negativing negligence
as to a cause of loss that does not have sucient and reasonable support
in the evidentiary record and, instead, amounts to mere conjecture or
speculation. To hold otherwise would place an unduly high burden on
bailees. In Riverview, there was insucient evidence to support the trial
judge’s theory of loss in the case, which was quite far-fetched, and bailees,
4 Ibid at para 3 (Robertson JA citing paras 30–34, inclusive, of the trial judge’s reasons
in the court below).
5 Ibid at paras 2–4.
6 Ibid at para 8.
7 Ibid at paras 7–9.
To continue reading
Request your trial