#6907 - Torts A Extended Intentional Torts To Goods

Control and Protection of Goods

What counts as goods?

Generally, objects that are tangible and moveable and capable of being possessed – i.e. not land or attached to land
includes cheques, living goods like pets and substances like gas

The plaintiff’s interest in goods

Relevant to the question of standing (required interest) to sue. You must establish your standing
- Torts to goods and land have different standing requirements
Main issues that arise are:
- Distinction between ownership and forms of possession
- How ‘bailment’ affects interests in goods

Types of interests in goods

Owner: It is a propriety interest and the ultimate interest eg. You bought/inherited/received it
Possessor: Things don’t have to be physically with you.
Immediate right to possession: Someone has it in their possession, but you have the right to go up to them as demand it back immediately
Reversionary interest: Someone has the right to have the good to come back to them after something has happened or a time has passed

f you bail something you are the ‘bailor’ and if you are given it they are a ‘bailee’

Possession

Plaintiff has physical control and intends to exercise control on her own behalf (eg Wilson v Lombank)
Flexibly interpreted - ‘control’ means has actual access to goods even though not in the hands of person
It’s a question of fact. They must have sufficient control and are holding it for your possession, excluding others from doing what they like.
Holding a handbag: custody not possession

Constructive Possession (Ashby v Tolhurst)

P had possession
They did not intend to relinquish possession
No-one else has assumed possession
- Irrespective of whether D had physical control. If the purpose of P was not to give D control, there is not assumed control

Actual Possession

Makes no difference if it’s actual or constructive. Actual possession is better than constructive possession.
Actual: you actually have physical control. Eg. Things you leave in your car. However, could argue if you have possession of car keys you are still in actual possession. However you could argue it is constructive

Bailment

A delivery of goods to another (bailee) on the condition (express or implied) that the goods should be returned to the bailor (or dealt with as the bailor directs) as soon as the purpose for which the goods have been bailed is completed.
so transfer of possession but not ownership
Bailment is not a tort. You do have a right to sue under a bailment though.
It means possession has been transferred from one person to another
A bailee of goods can sue third parties in conversion. The reason for this, as explained in The Winkfield is that, as against a wrongdoer, possession is title and even the chattel that has been converted is deemed to be the chattel of the possessor and of no other; therefore, its loss or deterioration is the bailee’s loss which must be recouped on his or her demand
Where the bailment is at will the bailor may also sue on the basis of an immediate right to possession.
A bailment which originally gave the bailor no immediate right to possess may become a bailment at will.

Manders v Williams

P brewer supplied porter in casks to a publican on condition that he was to return empty casks within six months
Held that P could sue a sheriff who seized some empty casks in execution for a debt of the publican because, once they were empty, the effect of the contract was to make the publican a bailee at will, whereupon P was entitled to immediate possession.
Similarly, if a bailee does a wrongful act which may be deemed to terminate the bailment the bailor may sue
The remedy would lie not only against the bailee but against anyone else who deals with the goods
For instance, destruction or sale of the goods by the bailee will ordinarily terminate the bailment as will dealing with them in a manner wholly inconsistent with the terms of the bailment

Breach of contract

Some contracts contain special stipulations regarding the revesting of the right to possession in the bailor in the event of a breach by the bailee of one of the terms of the contract
Hire-purchase contracts normally prohibit the hirer from selling the good, and empower the owner to terminate the contract by the giving of notice if the prohibition is disregarded.
You must examine the contract to determine whether the terms meant to displace the common law rules concerning acts repugnant (offensive) to the bailment and so prevent the resumption of the right to immediate possession pending the giving of notice

Delivery and Possession

There must be -

a delivery to the bailee and
the bailee must voluntarily take possession of the goods to constitute a bailment (e.g. Ashby v Tolhurst)

Ashby v Tolhurst

Involved parking in a parking lot
P parker car in D’s parking lot
Locked it and paid D
Ticket said: ‘The proprietors do not accept any responsibility for the safe custody of any cars or articles therein nor for any damage to the cars or articles however caused … all cars being left in all respects entirely at their owners’ risk’
Came back and the car was gone
D said a man took it who said he was your friend.
P sued D in tort and under the terms of the bailment
D was found not liable
It was not a bailment as they didn’t accept
Possession was not vested in the Defendant, the terms of the parking ticket shows this
There was a licence (permission) to park. Possession didn’t move
There was no evidence of delivery
Ie – the car, like the computer in your car, remained in the plaintiff’s possession when he parked it in the parking lot with the defendant’s licence (ie permission)
If he had left it there for a particular purpose, there would have been a transfer of possession, but the terms made it clear this did not occur
Where you only get it if you produce your ticket it is a bailment. The way they have got around it is flat fees.

Three Main Duties of Bailee

Morris v Martin:

Return the goods at end of bailment to the bailor or otherwise deal with goods as directed by the bailor
To take reasonable care of the goods (onus on bailee to prove reasonable care taken)
Not to convert the goods

IF the bailment has been ended, they can demand the right to have it back

You can agree to more or less if you have a contract

Don’t have to be an owner to be a bailor

The bailee can bail it to someone else, known as a sub bailor

Morris v Martin

P sent her mink to a furrier to be cleaned (She is the owner and she has bailed it to D)
D didn’t do cleaning so asked if they could send it to a third party, she said yes
Terms on condition on which they did the cleaning, it said it was at the ‘customers’ risk (D’s risk) There was a sub-bailment
The fur was stolen
She sued the cleaner and sued under the terms of the bailment
Court said she could, and she was successful
Two judges said the second point was breach and other judge said 3^rd point was breached
If D voluntarily took possession and knew whose it was, there’s a sub-bailment. You don’t need a contract. They need to be aware that it belongs to the bailor. When a sub-bailement is created, the sub-bailee assumes the obligation of the bailee to the bailor (the original one).
Denning said: There was a breach of number two. What’s reasonable depends on circumstances and how you came to have the things in your possession.
He said if it is a gratuitous bailment then reasonable care might be less. On these facts it was a bailment for reward, the reasonable care was higher, and it was not taken.
She was able to sue the cleaner because:
There was a sub bailment for reward (being paid for)
Judge said sub bailee is the person who has possession. Occurs when someone who isn’t the owner but who has the right to possession, and transfers it

Bailment types

Bailment at will (also called revocable bailment)

Can be brought to an end at any time by the bailor
During the bailment, the bailor has right to revoke at any time and will then have a right to immediate possession

Bailment for fixed period / term

Comes to an end after a specified time or event.
Doesn’t have to be that specific
During the bailment, the bailor does not have the right to immediate possession
They only have a reversionary interest

HILL v REGLON PTY LTD

Involved a fixed term contract and a bailment under that contract for 10 years
Reglon owned the scaffolding and they signed a contract with a company called ACS hire and it was agreed that ACS would hire out the scaffolding. And all they could do is hire it out. However ACS gave it to a related company (a different legal entity)
Didn’t do what it would said it would do in the contract, called action consulting service ltd and it was that company that hired it out to the builders
ACS stopped making payments to Reglon
Action who owned money to a bank, stopped making its payments to its bank. When a company defaults on a bank, insolvency! You can also appoint a receiver who can run the business, this is what happened. Reglon told the receiver that some of the scaffolding was theirs
The receiver licenced another company to use the scaffolding ANSW (all of it) and Reglon sued the receiver for conversion of the scaffolding
How can it move to reversionary interest to a right to immediate possession? If Reglon can argue that the bailee has breached one of the duties of a bailee, they can move from a reversionary interest to an immediate right to possession
ACS said the agreement was still on foot
The clause says: Yes, we have a clause that deal with how to end it in one way, but clause 17 says that Reglon keeps all its common...

#6907 - Torts A Extended Intentional Torts To Goods - Torts Law

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