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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forbes v Aberdeen Motors Ltd. [1965] ScotCS CSIH_1 (12 March 1965)
URL: http://www.bailii.org/scot/cases/ScotCS/1965/1965_SC_193.html
Cite as: 1965 SC 193, [1965] ScotCS CSIH_1, 1965 SLT 333
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12 March 1965
| Forbes |
| v. |
| Aberdeen Motors Ltd |
The pursuer impressed me as a credible and reliable witness, and I had no hesitation in accepting his evidence in preference to that of Ross. There is, however, no corroboration of his statement that he arranged with Ross that the car should be delivered at the car park and the keys given to the hall porter at the Station Hotel, and I am therefore unable to find this arrangement proved.
I accepted Robertson as a credible witness and I have no doubt that the pursuer said something to him about the delivery of the car and that he (Robertson) interpreted what was said as an instruction to the defenders to deliver the car to the car park. Mr Maxwell argued that what the pursuer said amounted to an order to deliver the car to the car park not later than 5 P.M. I am unable to accept this interpretation of Robertson's account of the conversation. After stating that the pursuer told him that "the car had to be taken down to the Station Hotel car park and left there," and that he (Robertson) left the car at the car park at about 4.55 P.M., the following passage occurs in the evidence:—
"(Q.) Why that time? (A.)Mr Forbes, when he left the car and told me to take it back, he said it would be after five before he collected the car, so we thought it better to get the car down before 5 o'clock for collection. (Q.) Could I have that again, please? (A.) He said it may be after five before he collected the car. (Q.) And you thought you had better get it down before five o'clock, is that what you are saying? (A.) Yes. (Q.) Why? (A.) In case he needed the car at 5 o'clock. (Q.) Had he said anything about getting the car by five o'clock? (A.) No. (Q.) Was it not because the workshop was going to be shut at five o'clock that you decided to take the car down there? (A.) Well, we do close at five o'clock. (Q.) Was that not the real reason why you took the car down at five o'clock? (A.) Yes, I think it was."
Robertson stated that he told Ross that the car was to be delivered to the car park after it had been repaired, but he was not asked if he gave any other information to Ross. Ross stated that Robertson told him, when he returned to the garage after accompanying the pursuer to the Station Hotel, that "he (the pursuer) wanted his car sent back there at 5 o'clock" and that he assumed that the pursuer would be there then.
While I am satisfied that the defenders were instructed to place the car in the hotel car park after the repairs had been completed, I am not satisfied that they were instructed to place it there at 5 P.M.Further, I am satisfied that Ross had no reason for his assumption that the pursuer would be at the car park at about 5 P.M.
Mr Maxwell argued that, in the absence of proof of any instructions to lock the car and give the keys to the hall porter, the defenders fulfilled the whole obligations incumbent on them by placing the car in the hotel car park, and leaving it unlocked and with the keys in the ignition switch. Indeed he argued that, if they had locked the car or removed the key, or handed the key to the hall porter or receptionist at the hotel, they would have exceeded their duty, and that if, as a result of any of these actions, the pursuer had suffered inconvenience or loss, they would have been liable to him in damages.
I am unable to accept this argument. When the defenders took delivery of the car for repair and agreed to place it in the car park after they had repaired it, they undertook the duties of custodiers of the car. It is true that there is no evidence as to whether the defenders made a specific charge for the keeping of the car while it was in their repair shop and for the taking away of the car from the hotel and its delivery to the car park after repair, and I assume, in the absence of evidence to the contrary, that no such specific charge was made, and that the cost to the defenders of the custody and delivery of the car was incorporated in the charge made for the repairs of the car.
Lord President Cooper puts the matter in this way:
"In my opinion every contract of locatio operis faciendi which entails, as this contract did, that the subject on which the work is to be done is to be left in the premises of the tradesman and in his possession must normally be presumed to include as an inherent ingredient an element of locatio custodiœ, the charge for which, like other overhead charges, is covered by the price of the work done. The opposite view, which was not pressed, would involve that the tradesman with whom goods are left to have repairs or other work preformed upon them, and who does not stipulate for, or charge, eo nomine a sum to cover the storage, would owe no duty as an onerous custodier to preserve the goods from loss or damage."
(Sinclair v. Juner, 1952 S C 35, at p. 43.)
In my opinion the defenders were onerous custodiers from the time the car was delivered to Robertson at the door of the Station Hotel until it was delivered at the car park. As such custodiers it was their duty to take such care of the car as a prudent man would exhibit in the circumstances: Bell's Principles, (10th ed.) sec. 155; M'Lean v. Warnock, (1883) 10 R. 1052; Sinclair v. Juner, 1952 S C 35.
The defenders having taken the car into their custody, the obligation of care continued until the car was delivered to the pursuer, or in accordance with his instructions. Assuming, as I must in the absence of corroboration of the pursuer's evidence, that Ross did not undertake to deliver the keys to the hall porter, the question is, would a prudent man have left his car unlocked in the car park with the keys in the ignition switch? There can, in my opinion, be no doubt as to the answer. No man who wished to preserve his car or its contents would have done so. As I have already stated, there is no evidence that supervision was exercised over the car park, which had two open exits and is in a district which is much frequented in the late evening. The evidence further established that 191 cars were stolen or moved without permission from open places in Aberdeen in 1962. The witnesses who were responsible for the care of cars were unanimous in stating that it was folly to leave cars unlocked and all stated that, when they left a car unattended, they locked the car and removed the keys. But the strongest evidence of the care taken by a prudent man is that Robertson locked the car and removed the keys when he left the car, and that it was only after receiving instructions from Ross that he reopened the car and put the keys in the ignition switch.
I have difficulty in accepting the truth of Ross's explanation that he gave his instructions to Robertson in the belief that the pursuer had arranged to be at the car park at about 5 P.M. and that the car would therefore remain unattended for a few minutes only, but, be that as it may, it was a belief which was not justified by anything which the pursuer is proved to have said, and, in any event, it was not, in my opinion, the action of a prudent man to leave the car unlocked and with the keys in the ignition switch in the car park for even a few minutes. Indeed Ross himself stated that he invariably locked his car when leaving it unattended. While he may not have known that the pursuer was a patron of the Station Hotel or that the use of the car park was restricted to patrons of the hotel, I am of the opinion that the proximity of the hotel to the car park would have led any reasonably prudent man to ascertain from the hotel staff whether the pursuer was a patron and, if so, whether he was available to take delivery of the car. Indeed, Ross recognised the risk to which he was exposing the car, for he stated that if he had known that the pursuer was not to be at the car park for some hours, he would have taken steps to find out what was to be done and possibly would have gone to the hotel receptionist to find out if the pursuer was there.
In these circumstances I am satisfied that the defenders' servants failed to take the care which a prudent man would have exercised in like circumstances and that as a result the pursuer's car sustained the damage complained of …
In these circumstances I shall grant decree for payment of the sum of £1775 to the pursuer by the defenders.
The defenders reclaimed and the case was heard before the First Division (without Lord Migdale) on 11th March 1965.
At advising on 12th March 1965,—
The pursuer had employed the defenders to repair the exhaust of his Bentley, but, after the car was redelivered to him, a rattle developed in the exhaust. Accordingly, on the morning of 30th July 1963 he drove the car to the defenders' premises in Aberdeen to get the fault rectified. He there saw the defenders' receptionist, John Ross. The pursuer had business engagements in the Station Hotel, Aberdeen, during the day and he intended to drive home late that evening in his car. According to the pursuer he arranged with Ross that, after the rattle was cured, the Bentley was to be delivered to the parking place attached to the Station Hotel, and the keys of the car were to be left with the hotel porter.
The Lord Ordinary believed the pursuer, whom he regarded as a credible and reliable witness, but the pursuer's evidence regarding the keys was uncorroborated, and indeed was denied by Ross, who affirmed that there was no arrangement for delivery of the keys to the hotel porter. Ross did not impress the Lord Ordinary as a witness of credit.
The car was duly driven from the defenders' premises about 5P.M. that afternoon to the car park attached to the Station Hotel by an employee of the defenders named Robertson. Ross was driving another car down to the hotel at the same time, in order to convey Robertson back to the defenders' premises. Robertson parked the car in the car park, removed the ignition key, locked the car up, and went over to Ross. When he asked Ross what to do with the keys, Ross instructed him to leave the keys in the Bentley. Robertson, therefore, returned to the Bentley, unlocked the doors and left the key in the ignition. Some time that evening a naval rating from Lossiemouth, who had spent the day in Aberdeen and wished to return to Lossiemouth that evening, entered the car park and, after trying the doors of several cars, found the doors of the Bentley unlocked and the key in the ignition switch. He accordingly entered the car, drove it out and shortly afterwards was involved in a collision which wrecked the Bentley. It was in these circumstances that the pursuer claimed damages for his loss.
His claim is not based upon a direct breach of contract in respect of a failure to deliver the keys to the hotel porter, for there is a lack of the necessary corroborative evidence to establish that such delivery was an express term of the bargain made by him with the defenders. The pursuer's case is rested on the duty of the defenders, which, it is alleged, arose out of and in consequence of the contract to repair and deliver the car, a duty which required them to take reasonable care for the safety of the car when they delivered it at the car park. The car had been left in their custody and control, and, as the Lord Ordinary says, as such custodiers it was their duty to take such care of the car as a prudent man would exhibit in the circumstances. The Lord Justice-Clerk in Copland v. Brogan puts the matter thus (at p. 282):
"According to Bell's Principles, there is an obligation on the depositary to ‘keep the thing with reasonable care,’ and the editor of the last edition of that work states that reasonable care in the case of a gratuitous depositary means such care as a man of common prudence generally exercises about his own property of like description."
The duty of an onerous depositary is at least as high as this: Sinclair v. Juner .This duty obviously must continue until the article has been delivered up by the depositary.
In the present case it appears to me to be clear that this duty was breached. The car park in question had two open exits, where any member of the public could get in. No supervision was exercised over the car park and it is established in the evidence that unlocked and unattended cars left in Aberdeen are often stolen by unauthorised persons. The district of the city where the car park is situated is a very busy one, particularly in the evenings. But the matter does not end there. Robertson, who drove the car to the parking place, locked and brought away the keys when he left the car, and only returned to the car and left the keys in the ignition switch when expressly told to do so by Ross. Ross himself in evidence admitted that when he left a car unattended, he invariably locked it up and removed the ignition key. It is difficult to appreciate from his evidence why he breached his invariable practice on this occasion, but his having done so appears to me to be convincing evidence of fault on his part on this occasion.
It was argued for the defenders that there was no evidence to show that, if the car had been locked up and the keys handed to the hotel porter, the porter would have accepted them. But the hotel porter in evidence negatived this contention and his evidence in chief to that effect was not challenged in cross-examination. Moreover, the defenders' employee, Ross, in cross-examination conceded that there would not have been "the slightest difficulty in putting the keys in to the porter" at the Station Hotel. This contention, therefore, appears to have no substance in fact at all.
Finally it was argued for the defenders that they had done all they were in law bound to do, if they deposited the Bentley in the car park. The key, it was said, was an essential part of the car and their contract therefore required them to leave the key available in the car. Indeed it was argued that the defenders would have been in breach of their contract to deliver the car at the car park if they had taken the key to the hotel porter, for the contract to deliver at the car park was not proved to have included any provision for leaving the key anywhere but in the car. It may, it was said, be a foolish contract for the pursuer to have made, but that is his own fault.
In my opinion this contention is unsound. It seems to me a fallacious and unreasonable interpretation of the contract to treat it as having been intended to absolve the defenders of all responsibility for the safety of the car, provided they had once driven it inside the car park. They were in charge of the pursuer's property, owing to the fact that they had entered into a contract to repair it, and before letting it out of their control they were bound, in my opinion, to exercise such care as a man of common prudence would in general exercise over the car if it were his own. It would in my view be quite unreasonable to regard them as absolved from any such ordinary duty, unless specific instructions had been issued by the pursuer to them on the matter. He was entitled to treat them as persons who would act with reasonable prudence before abandoning his property. In the circumstances of this case it appears to me to be clear that they did not act with reasonable or ordinary prudence.
The Lord Ordinary in my view reached the correct conclusion and this reclaiming motion should therefore be refused.
The defenders have reclaimed against the Lord Ordinary's interlocutor, and have argued that he erred in law in holding them liable, because there was no failure in duty on the part of their servants. It was submitted that the agreement between the parties was that the defenders would effect the repairs and deliver the car to the hotel car park. The car included its fittings, such as the keys. It was no part of the proved agreement that the defenders' servants should remove the keys from the car, and it would have been an unauthorised act and in breach of the contract if they had handed them to the hotel porter, or if they had retained possession of them, which would have been absurd in any case. If what was done had resulted in the loss of the car, the responsibility must rest on the pursuer for entering into the arrangement.
The suggestion that the defenders' servants were legally entitled, and indeed bound, to leave the car in such a condition as to encourage a thief to remove it seems to me to offend against common sense, and I am happy to agree with the Lord Ordinary that it is not in accordance with the law. In law, in my opinion, the position was this. Arising out of the contract between the pursuer and the defenders for the repair and redelivery of the car, a duty rested on the defenders to take reasonable care of the car as long as it was within their custody. The standard of care to which they required to conform was that which would be exercised by a prudent man of his own propety in similar circumstances. Therefore, as the Lord Ordinary put it, "the question is, would a prudent man have left his car unlocked in the car park with the keys in the ignition switch?" The likely result of what the defenders' servants did was to give an opportunity to a dishonest person to enter the car and to drive it away. Accordingly there can be no doubt that a prudent man would not have left his own car in a condition which was an invitation and an encouragement to a thief. Therefore the defenders' servants failed in the duty of care incumbent upon them in the circumstances, and the defenders, as their employers, are liable in damages.
It will not do for the defenders to submit that, because no agreement was proved as to what was to be done with the keys, their servants could legally do nothing else than leave them in the unlocked car. Since a duty of care rested on them arising out of the contract, they were bound to consider the likely consequences of leaving the car unlocked and with the keys inside it. The duty continued until the moment when their servants could leave the car in a safe condition. If the likely result of leaving the keys in it when it was unlocked was to incur the risk of theft, then they had a duty not to do so. That consideration is enough to entitle the pursuer to succeed.
It is not necessary in this case for the pursuer to establish affirmatively that the defenders' servants should have handed the keys to the hall porter, since he has proved that they caused the theft by their negligent act of leaving them in the unlocked car. The pursuer is entitled to succeed on the simple ground that they should not have done so. But the evidence does establish that a reasonable step in the circumstances would have been to entrust them to the porter. The pursuer, as the defenders' servants knew, had been taken in his car from the defenders' garage to the hotel in the morning. Therefore he was an inmate of the hotel on that day. It had been arranged that the car would be left in the hotel parking place, and therefore they knew that the pursuer would be later at the hotel to collect it. The car was actually delivered to the car park, so that it was left by the defenders' servants within the premises of the hotel. In these circumstances it is clear that it would have been a reasonable and proper step for the defenders' servants to leave the keys with the hotel porter, as the appropriate functionary, if the pursuer was not personally present in the hotel at the time to receive them. From the porter's evidence it appears that he would have accepted them. The cases to which we were referred, where it was held that a custodier of property was not entitled to hand it over to a person to whom the owner had not authorised him to deliver it, have no application to the circumstances of this case.
I agree that the Lord Ordinary's interlocutor should be affirmed.
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