12. Bailment and Torts Flashcards
B&T in other areas
SOGA - If B wants to claim property has passed, B can’t just bring a claim for that, B must bring a tort claim (e.g. conversion), no cause of action to just assert property right
ROT/SR - If S gives B possession and retains title, B is bailee of S’s goods (bailment = transfer of possession not amounting to sale)
People often forget to argue bailment
White & Withers - didn’t argue till HL
Yearworth - no one argued bailment
Property rights
prima facie bind the rest of the world
- 3P might have a defence (s.22-26 SOGA)
- to assert right, C must claim D commits a tort (or UE)
- this is why the torts are strict liability (to protect C’s property right)
TO ASSERT PROPERTY RIGHT: USE CONVERSION OR TRESPASS
Law Reform Commissioner 1971
3 torts protecting property rights in goods
- conversion
- detinue
- trespass
should be replaced with a single tort of intentional interference
(keep negligence for unintentional interference)
Tort (interference with goods) act 1977
DID NOT MERGE THE 3 TORTS
- set up common rules for intentional torts (“wrongful interference with goods”)
- abolished detinue
- still separate torts
STRICT LIABILITY
For intentional interference:
- Intention element is satisfied if D intends the act constituting interference
- doesn’t matter if D honestly believes D’s action was permissable
Marfani v Midland
moral concept of fault plays no part
Fowler v Hollins
persons deal with property in chattels at their own peril
Farquarhson Bros v King
D (BFP purchaser of goods) purchased goods but S did not have authority to sell goods
D liable in conversion/trespass (even if no fault) because of intentional interference (intended the act of receiving the timber and dealing with it)
- STRICT LIABILITY
BMW v Dhagwanni
D drove car to Romania (insurance did not cover Romania) and crashed
- D left car in Romania
- not a deliberate act (did not intend to crash)
- D was not trying to assert own ownership in car/act inconsistently by leaving the car in the garage
MAYBE NEGLIGENCE (if driver careless when accident happened)
Kuwait Airlines v Iraqi Airways
Lod Nicholls: precise definition of universal application is “well nigh impossible” but 3 basic features:
ONE - D’s conduct is inconsistent with owner’s right
TWO - conduct is deliberate
THREE - conduct is so exhaustive it encroached on owner’s rights (excluding him from use or possession)
THREE is what separates conversion and trespass (nature of interference)
- here, Kuwait Airlines won
- Iraqi Airways = 3 requirements satisfied
- no need to show consequential loss just vindicating rights
Fouldes v Wollaouby
took C’s horses off boat
NOT CONVERSION - not sufficiently extensive interference with rights
- D not claiming to exercise ownership
- C could go and get his horses
- D accepted C’s ownership, just moved it
YES TRESPASS
Marq v Christie Manson
auctioneer fails to sell stolen goods on behalf of X (returns back to X)
NOT conversion
- returned goods back to X
- dealt with goods but did not sell
Club Cruise v Dept. for Transport
excluding C from use is not sufficient in itself for conversion
MUST BE PHYSICAL INTERFERENCE for conversion
- notice given is in effect the same as impounding but not conversion because not physical interference
- this tort is about enforcing C’s property right not protecting against any interference with use
Saunderson v Marsden
trespass = interfering with right itself (however slight)
DOES NOT require encroachment on ownership
White & Withers
wife photocopied husband’s documents and gave to her solicitor (pre-divorce)
- TRESPASS
- Direct and immediate interference with C’s possession of documents
- procedure for divorce proceedings does not displace rules of tort
Letang v Cooper
Denning MR - don’t use language of “direct” to divide trespass and negligence
to divide the two: INTENTIONAL and UNINTENTIONAL
Marsden
if direct injury = trespass
but might be de minimis only nominal damages
s.2(1) Torts Act
detinue is abolished
academic argument: detinue lives - it modified conversion and trespass in detention cases
DETINUE
ONLY liable when D refuses to give it back (not just liable when keeping someone elses goods)
- good for C because of limitation period
- only a tort when C asks and D refuses
THIS ELEMENT IS NOW IN CONVERSION CASES when D is retaining possession when they shouldn’t
Schwartzchild v Harrods
D had possession of C’s goods with C’s consent
- only liability when D refuses to return goods
- D’s intention to keep does not trigger liability in itself
- when intention is communicated, then liability arises
CONVERSION INTERPRETED to have DETINUE requirements in situations where D is retaining possession when they shouldn’t
Spartan Steel v Martin
NEGLIGENCE IS ABOUT PROTECTING PHYSICAL THING, NOT USE
D carelessly caused power cut:
ONE - damage to C’s machinery and ingots processed at time of power cut
- D liable (careless interference with thing = liable)
- damages payable incl. sum to reflect profits lost due to physical damage
TWO - loss of profit due to C’s inability to process other ingots
- NOT liable (careless interference with intended use of thing = no liability)
- power cut caused no physical damage to those ingots
MCC Proceeds
scale: (1) legal rights, (2) equitable rights, (3) personal rights
NO conversion for equitable rights
Shell v Total
General rule: no recovery for PEL (don’t want complete strangers to be liable), only recover if legal property right
Exception: special relationship between D and the person suffering loss (Clark & Lindsell)
- here, C had no interest in land damaged
- Shell = legal owner (held on trust for C)
- EXCEPTION APPLIES because of special relationship
- FLAWED ANALYSIS: special relationship is not between D and person suffering loss, it is between C and the trustee
Cogg v Barnard
Holt CJ broke down 6 categories of bailment
- even if voluntary but undertook responsibility, then must do it carefully (accepted responsibility)
- if D decides not to do it, D cannot be forced but if D does it, D has accepted responsibility
The Winkfield
Bailee (post office) can sue D for full value of goods (Based on value of the right)
BUT bailee must pay money to bailor (possession is for bailor so proceeds from possession is for bailor)
- bailee has own property rights (through possession) so if 3P damages, bailee can sue 3P for damages
Yearworth v NHS
sperm samples negligently damaged - property rights in samples?
- bailment: D accepted responsibility by doing it, so under DOC; possession triggers AOR
- analysed through standard negligence (but no ownership of sperm and no right to use it/decide what happens to it?)
The Pioneer Container
D is under a duty to bailee as long as D knows it is someone else’s goods
BAILMENT: SB accepted possession of goods knowing it belonged to owner (not bailee) so assumed responsibility
- BUT SB can rely on exclusive jurisdiction clause (accepted goods on basis of EJ clause)
- Bailor gave permission for bailee to include this in a subcontract
- AOR limited
- burden on SB/B contract
- bailment made EJ clause bind owner (limited AOR of sub-bailee)
