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CACV000169/1984
IN THE COURT OF APPEAL
BETWEEN
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CHEUNG LEE WAREHOUSE & TRANSPORTATION LTD.
and
BERTHIER GODOWN LTD.
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Coram: Sir Alan Huggins, V.-P., Cons & Kempster, JJ.A.
Date of Hearing: 11th January, 1985
Date of Judgment: 11th January, 1985
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JUDGMENT OF THE COURT
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Kempster, J.A.:
1. This is the judgment of the Court.
2. Berthier Godown Ltd., I refer to them as "Berthier", with the leave of this court, appeal from the judgment of His Honour Judge Wong given in Victoria District Court on 15th of June of last year whereby that company was held liable to Cheung Lee Warehouse & Transportation Ltd., hereinafter called "Cheung Lee", for damage sustained by goods while in their custody. By respondent's notice Cheung Lee seek to uphold the decision of the learned judge on two grounds upon which he did not purport to rely.
3. On 13th January 1982 Cheung Lee received a consignment of newsprint as bailees. In turn they delivered the goods to Berthier to hold for them as bailees for reward. Early in April 1983 some of the goods sustained damage from water escaping from an overhead duct. The owners of the newsprint having claimed damages from Cheung Lee, Cheung Lee claimed over against Berthier in the instant action. Though not insurers Berthier owed Cheung Lee a personal duty to take reasonable care to ensure that the premises in which the goods were stored were and remained appropriately secure (Martin v. L.C.C. (1)) and suitable for the purpose. They were not liable if the damage was caused by accident involving no breach of their duty.
4. The learned judge held, it seems, that Berthier, the burden of proof resting on them, had failed to satisfy him that they had exercised the appropriate duty of care. Although he did not expressly say so it is apparent that he based his finding on their vicarious liability for the negligence of the building management, being independent contractors for present purposes, who by their plumbers had failed properly to secure the lid of the duct after effecting the clearage of a blockage.
5. Insofar as this was a finding of fact it is not suggested that it was unsupported by evidence. Indeed Berthier apparently sought to blame the building management at trial on this basis. Insofar as it was a finding of law it was right. As Lord Pearson said in British Road Services, Ltd. v. Arthur Crutchley (2) at p.820:
"To give business efficacy to the contract, the bailee's implied promise should be that he will himself or through his servants or agents take proper care of the goods."
And in the same case at p. 824 per Sachs L.J.:
"The bailee is responsible for proper care being taken of the goods and cannot escape from that liability merely by employing sub-contractors for that purpose, however reasonable may be his confidence in them. Any contrary decision would make a serious and unjustifiable inroad on the rights of bailors, and for this inroad there does not appear to me to be any authority."
As is asserted in the respondents' notice, whether or not the independent contractors, being the management company, are to be regarded as Berthier's agents, as the learned judge found and in relation to which Cheung Lee in their Notice based their appeal, is a matter of academic concern only.
6. Other issues were canvassed at trial but were not pursued on appeal.
7. In the circumstances the appeal must be dismissed.
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(M. Kempster)
Justice of Appeal
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(1) [1947] K.B.628
(2) [1968] 1 All E.R. 811
Representation:
N.P. Pirie (Johnson Stokes & Master) for appellant/defendant
Wally C.K. Yeung (Kenneth W. Leung & Co.) for respondent/defendant
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