Montserrat Enterprises Ltd v Gomez

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: LEIGERTWOOD-OCATVE J
• Judgment Date: 06 March 2012
• Neutral Citation: MS 2012 HC 5
• Docket Number: MNIHCV 4 of 2009
• Date: 06 March 2012

Montserrat Enterprises Ltd.

and

Gomez

Leigertwood-Ocatve, J.

MNIHCV 4 of 2009

High Court

Bailment - Liability of bailee to take due care of bailed property.

Appearances:

Mr. Jean Kelsick for the claimant.

Mr. David Brandt for the defendant.

JUDGMENT 1

Introduction

LEIGERTWOOD-OCATVE J

1 Montserrat Enterprises Ltd [“the Company”] is engaged in the business of the rental of motor vehicles. Some time towards the end of July 2009, the Defendant [“Ms. Gomez”] entered into an oral contract with the Company to hire a vehicle. Whilst driving the vehicle, Ms. Gomez was involved in an accident and the vehicle was extensively damaged.

2 In these proceedings, the Company has alleged that the collision was caused by Ms. Gomez's negligent driving and that she has failed as a bailee to take reasonable care

of the vehicle whilst it was in her care and custody. The Company also alleged that Ms. Gomez breached the oral agreement by failing to take due or proper care of the vehicle and by returning it to the Company in a damaged condition. They have claimed special damages in the sum of $30,960.00.

3 In her Defence, Ms. Martinez Gomez has denied any liability for the collision or for any loss or damage suffered by the Company. She has claimed that the vehicle as delivered to her by the Company was not in a roadworthy condition or fit for the purpose for which it was hired. She has counterclaimed for damages for personal injuries and consequential loss.

The Oral Contract

4 When Ms. Gomez approached the Company on 25 ^th July 2008 to rent a vehicle, she spoke with Ms. Veronica Hixon, who Mr. Daniel Edwards [“Mr. Edwards”] testified was authorized to enter into rental agreements on behalf of the Company. Mr. Edwards, the Company's Managing Director, was not present at any time during their conversation, he had never spoken to Ms. Gomez on the matter and he admitted in cross-examination that he did not have first-hand knowledge of what was agreed. There are some matters however that are not disputed between the parties, namely, that the rental period would commence on 28 ^th July 2009 for a period of one week and that the daily rate was US$40.00.

5 As Ms. Hixon was not called as a witness of the case, Ms Gomez is the only person who was in a position to give any details regarding the oral contract. She claimed at the time of entering the contract she had told the Company's officer who she had dealt with that she was staying in Old Towne and she was concerned about the state of the roads and the importance of safety for her two young sons. The following terms were expressly agreed:

• “ [a] The vehicle would be not only road worthy but in good condition, have rear seatbelts for [her] children's safety car seats and [she] would ^the additional daily rate to have a jeep, after being reassured by the Claimant that it would have an even better tyre grip than a regular vehicle.

• [b] The vehicle would be comprehensively insured so that if [she] was involved in an accident [she] would not incur any liability or be liable in damages. Except for the excess on the insurance policy which would be the standard rate as discussed with the Claimant on our initial telephone conversation…

• [c] The said vehicle was safe and suitable for the purposes for which it was hired and that the tyres would have a good grip… that the Claimant would provide a 4 x 4 vehicle that would have a better grip than a regular vehicle.”

6 In cross-examination by Mr. Kelsick Ms. Gomez insisted that these were the terms that she had agreed with the Company.

The Delivery of the Vehicle

7 After the contract between the parties was in place, Mr. Edwards delivered a Toyota Rav-4 jeep to Ms. Gomez's home on 27 ^th July 2008. It is common ground that Mr. Edwards did not speak with Ms. Gomez when he delivered and he had left the keys and the Company's standard Auto Rental Agreement Form with her husband James Wood [“Mr. Wood”].

8 Mr. Edwards stated that the vehicle he delivered to Mr. Wood was in a good and roadworthy condition. The tyres were adequately threaded and capable of gripping the road properly. He denied that they were bald as alleged by Ms. Gomez. Ms. Gomez stated in cross-examination she had not actually inspected the vehicle but on reflection she realized that she should have carefully examined the tyres, particularly as there did not appear to be any minimum standards in Montserrat. If she had examined them and seen that the tyres were bald and dangerous she would not have accepted the vehicle.

The Collision

9 The collision involving the rented vehicle occurred around midday on 28 ^th July 2008 on the Logwood Main Road in Old Towne.

10 Ms. Gomez version of events is that it occurred without any negligence or fault on her part. She was driving the vehicle properly and carefully along the road at about 20 miles per hour and had just taken a bend coming down the hill going slowly. It had started to rain and there was ash and pumice on the road. Suddenly, the vehicle went into a skid, she applied the brakes trying to get out of the skid and to maintain her side of the road or to turn the car in the opposite direction but even though she had exercised reasonable care and skill, she could not control the vehicle and it careened across the road into Rolston Daley's [“Mr. Daley”] vehicle as it was coming up the hill.

11 Mr. Daley recalled that he had stopped on the Logwood Main Road and had just moved off in the direction of the corner opposite Levon Watts’ house, he was travelling at about 25 miles per hour. The road was wet because it had rained not too long before but there was no ash or pumice on the road at the time.

12 As he approached the corner he saw the vehicle coming towards him travelling at 30 to 40 miles per hour, in his opinion. When he saw it, it was in the middle of the road. It skidded and Ms. Gomez unsuccessfully tried to turn the vehicle back on to the left side, which was her side of the road. He pulled over onto his side as much as possible and both of his truck's left wheels were on Mr. Watts’ grass verge and the front of his truck was touching his hibiscus hedge. He brought his truck to a standstill and the front of the vehicle collided forcefully with the right front side of his truck.

13 Immediately after the accident, and because of the way in which the vehicle had skidded at such a low speed, Ms. Gomez checked the tyres. She found that some were bald especially on the inside areas. She showed them to Mr. Edwards and one of the police officers when they arrived on the scene.

14 She was challenged in cross-examination as to the truth of that statement in light of the fact that in the Insurance Form, which she had completed within a month of the accident, she had recorded that “ the jeep had a bald tyre on the inside part” on the front driver side. She responded that she was not misleading the court, she had been very upset when she filled in the form and the tyres were all worn and what she probably meant was that one of them was very bald.

15 Ms. Gomez was not the only witness to observe the state of the vehicle's tyres at the scene of the accident. Mr. Daley had looked at them and found that they were not brand new but that they were in fairly good condition. Police Officer Earl Daway, who was the investigating officer at the scene of the accident, stated that Mr. Wood had pointed out the tyres to him and he had observed that the inside of the front tyres were smooth. He also observed that the road surface was wet and ashy.

16 Ms. Gomez's evidence is that the bald tyres were the main contributing factor in the accident and she was adamant that her application of the brakes had played no part because she knew that to get out of a skid, she should not press them very hard. At the scene of the accident, she explained what happened to Officer Daway in these words “… I was driving about 20 mph. The road was wet when I saw the truck I applied my brakes to take the road better and the car slid across the road and we collided.” Mr. Daley's statement was that ”… I saw a red Jeep coming around the corner, which was actually sliding across the road. I tried to get closer over to my side and we collided.”

17 As a result of the accident, the vehicle was extensively damaged, the front chassis was bent and it was a total loss in the opinion of Dave Taylor [“Mr. Taylor”], a motor mechanic of some 30 years experience, who examined it some time after the accident. He had commented that the five tyres that he had seen on the vehicle were less than 50% worn, they were in a satisfactory condition and did not contribute to the accident the vehicle was involved in. He however admitted in cross-examination that he could not say that those were the tyres on the vehicle at the time of the accident.

18 Mr. Edwards testified that as the vehicle was a total loss and he had sold it for parts in April 2009. Its pre-accident value was $18,063.00. The Company's standard daily rental rate for the vehicle was US$40.00 or EC$108.00 and its claim of $12,960.00 for loss use represented 4 months rental.

The Law

19 This case involves the ancient common law concept of bailment, a concept in which the law which is today, is the same as it was in 1703, as expounded by Sir John Holt, Chief Justice of the King's Bench in the landmark case of Coggs v Bernard2. Bailment describes a legal relationship which is created when the property of one person [the bailor] is physically transferred to another [the bailee], who then assumes possession of that property 3.

20 In his judgment, Holt CJ identified six categories of bailment and on the facts of this case, it is the third category which is applicable. It is when goods are left with a bailee to be used by him for hire, this is called “ locatio et conductio”.

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