Davis v Pearce Parking Station Pty Ltd

Davis v Pearce Parking Station Pty Ltd - [1954] HCA 44 - HCA 1954 case summary — Zoe

[8]

The plaintiff did not in fact return to take the car until about 4.30 p.m. What happened in the meantime and immediately after her arrival may be narrated in the words of the learned trial judge: "About 4 p.m. that same afternoon Miss Smith was returning to the office from parking a car when she noticed a man, whom she describes in her evidence as a presentable, reasonably dressed man, driving a black Holden sedan car over the footpath into Charlotte Street from the position in which she had parked the plaintiff's car an hour before. She was at the time only a few feet from him and on his driving side. As the car moved slowly across the footpath she asked the driver, who was a stranger to her, if he had handed in his parking ticket at the office. He had a slip of paper in his mouth, and he merely nodded in the direction of the office, which was some thirty-five yards away, and continued to drive on. Though Miss Smith believed that the car which was being driven away was the plaintiff's, all she did was to proceed to the office and have a search made to ascertain if the plaintiff's parking ticket had been handed in. A seven minute search revealed that it had not. She said in evidence that her attitude of mind up to that stage was that she believed that the car in question was the plaintiff's and that the plaintiff had sent somebody to the defendant's premises to get it for her, but she was not certain that it was the plaintiff's car and that, as a result of the search, she concluded it was someone else's black Holden sedan car that she had seen driven away. No further inquiry or search was made until the arrival of the plaintiff. The plaintiff arrived back at the defendant's premises about ten minutes after Miss Smith's search for her parking check had been completed. It was then about 4.30 p.m. She produced exhibit 1 which was taken by the defendant's foreman, whose name also was Smith. He made a twenty minute search of the premises without, of course, finding the plaintiff's car. He then informed the plaintiff that her car had been stolen. That was the first intimation the plaintiff had received that her car was not safely in the defendant's custody in its parking station. Smith informed the Criminal Investigation Department of the theft, but it was then about 5 p.m. and the car had been stolen an hour before." The car was subsequently recovered by the police in Adelaide in a badly damaged condition, and the thief was convicted and sentenced to a term of imprisonment.

[14]

The difficulties to which the requirement of "strict construction" has given rise are well illustrated by the differences of judicial opinion which arose in Rosin & Turpentine Import Co. Ltd. v Jacob & Sons Ltd. [1] a case in which negligence was expressly mentioned in the exemption clause, and in which the final decision (in the House of Lords) was, with one dissentient, in favour of the bailee. Contrast also Moran v Lipscombe [2] with Crouch v Jeeves Pty. Ltd. [3] . It is hardly possible to reconcile all the cases. There are perhaps reasons for the adoption of a different approach to contracts for the carriage of goods by sea from that adopted where other classes of bailment - including contracts for the carriage of goods by land - are involved. According to Halsbury's Laws of England (2nd ed., vol. XXX, p. 332) an exemption clause in a contract for the carriage of goods by sea, if it is to protect against the consequences of negligence, "must expressly refer to negligence, since it is always strictly construed against the shipowner." And reference is made to Leuw v Dudgeon [4] ; Price v Union Lighterage Co. [5] and The Pearlmoor [6] . But in Travers & Sons Ltd. v Cooper [7] (a case of a warehouseman) a clause exempting from liability "for any damage however caused which can be covered by insurance" was held by the Court of Appeal (Buckley L.J. dissenting) to exempt from liability for negligence; cf. Pyman S.S. Co. v Hull & Barnsley Railway Co. [8] ("damage however caused"). Both these decisions were based on the words "however caused", and a distinction was drawn between general references to kind of damage (such as occur in the present case) and general references to cause of damage. A similar view had been taken in Manchester Sheffield & Lincolnshire Railway Co. v Brown [9] where the contract was for the carriage of goods by rail. In that case Lord Blackburn said that, when a man says he will not be responsible for damage however caused, that ought not to be "cut down and made, contrary to the intention of the parties, not to include the negligence of his servants" [10] : cf. Carr v Lancashire & Yorkshire Railway Co. [11] ; Austin v Manchester, Sheffield & Lincolnshire Railway Co. [12] and cases cited by Kennedy L.J. in Travers v Cooper [13] .

[19]

In McCawley v Furness Railway Co. [3] a passenger had sustained personal injury in a railway accident. A plea that he had agreed to travel "at his own risk" was held good, and a replication alleging negligence was held bad. (The railway company was, of course, not a common carrier of passengers). A precisely similar case was Gallin v London & North Western Railway Co. [4] . The case of Mitchell v Lancashire & Yorkshire Railway Co. [5] might be thought to tend in the opposite direction, but the contract in that case was of a very special character. So also was the contract in Canada Steamship Lines Ltd. v The King [6] . In Rutter v Palmer [7] the defendant bailee relied on the words "Cars driven at customer's sole risk", and it was held by the Court of Appeal that he was protected from liability for negligence. No valid distinction can be drawn between "customer's risk" and "customer's sole risk": cf. Ashby v Tolhurst [8] . Again there are cases of deposit of goods for custody at a railway station, in which such words as "will not be responsible for loss or damage" or "will not be in any way responsible for loss or damage" have been held sufficient to exclude liability for negligence: see Van Toll v South-Eastern Railway Co. [1] ; Pepper v South-Eastern Railway Co. [2] ; Pratt v South-Eastern Railway Co. [3] and Gibaud v Great Eastern Railway Co. [4] . In these cases the exemption clause did not purport to exclude liability altogether, but only in respect of goods exceeding a certain amount in value. But this can afford no ground of distinction. The point is made that in these cases (as in the present case) the bailee is making a very small charge for taking the custody of goods which are or may be of great value. He is likely to intend, and the bailor would reasonably expect him to intend, to protect himself against (inter alia) a possibly very heavy liability arising from the negligence of a servant. Either party can insure, and such a clause may reasonably be taken by the bailor to mean that, if he wishes to be protected against loss or damage at all, he must insure. Malicious damage is, of course, outside the contemplation of either party.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Cited By (1)