ASHITEY vs. GHANA INDUSTRIAL HOLDING CORPORATION [1989]DLHC539

Date	1989-12-21
Suit No.
Citation No.	[1989]DLHC539

LUTTERODT J.

BLISS AMARTEI FOR THE PLAINTIFF.

S. BANNERMAN-WOOD FOR THE DEFENDANTS.

[1989]DLHC539
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													<main id="main" class="content" style="min-height: 60rem" >ASHITEY <o:p></o:p>vs. <o:p></o:p>GHANA INDUSTRIAL HOLDING CORPORATION <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90] 1 GLR 474<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 DECEMBER
1987<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BLISS AMARTEI FOR THE PLAINTIFF.<o:p></o:p>

S. BANNERMAN-WOOD FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LUTTERODT J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LUTTERODT J.<o:p></o:p>The facts
which gave rise to this action are that on or about 14 October 1970, the
defendants took possession of the plaintiff’s boat numbered T.M. 70 into their
workshop for repairs. It was said to be subject to the usual terms and
conditions. The defendants kept the propeller blade in their store while they
awaited the return of the propeller shaft which had been removed and given to
the plaintiff to be taken elsewhere for repairs. These two parts work together
and one cannot be fitted without the other. When the plaintiff returned the
shaft to the defendants, however, this complementary part, the blade, was
nowhere to be found. It was not until some five weeks later that the defendants
got another blade to replace the stolen part. Thereafter the plaintiff caused his
solicitors to issue this writ claiming the following reliefs: the sum of
¢26,400 being loss of use of the plaintiff’s fishing vessel by name Ashie Odame
which was occasioned by the negligence of the defendants for a period of 44
days at ¢600 per day. The negligence of the defendants have been particularised
as follows: (i) Failing to exercise strict security measures in their boatyard
so as to avert pilfering of this nature; and (ii) failing to promptly find a
replacement of the propeller for the plaintiff’s boat.<o:p></o:p><o:p>&nbsp;</o:p>Both
counsel are agreed that quite apart from the issue as raised in the summons for
directions, the first and perhaps the most important issue for determination is
whether or not the defendants were negligent. To arrive at a decision, I would
first like to determine what duty of care, if any, the defendants owed the
plaintiff. I would hold that the relationship between the parties was that of
bailer (the plaintiff) and bailee (the defendant). The contract is a contract
of the class of bailments known as contract for hire of work and labour. The
essential features of such a contract is that there should be some work to be
performed in connection with a specified chattel and in consideration of this
repair work the bailee is to be paid some remuneration.<o:p></o:p><o:p>&nbsp;</o:p>It is
thus the duty of the bailee to take reasonable care of the chattel bailed to
him and return it at the agreed date, in this case after the repair is
effected. The principle of law is that his duty is not that of an absolute
insurer in the sense that once it is entrusted to him if the goods are stolen
or lost, then he can have no defence. What I understand the law required of him
is the keeping of the goods intact and preserving them with that degree of care
that might be expected from any reasonable man in respect of his own goods of
the kind or type entrusted him. It seems to me therefore that once the
plaintiff proved the loss of his propeller blade it fell on the defendants in
order to escape liability, to show what reasonable steps they took, if any, to
keep and preserve the blade. This is because where an event occurs such as
would not in the ordinary course of things have occurred without negligence,
then conditions exist for the application of the doctrine of res ipsa loquitur;
the theft of the goods from a bailee’s house being one such classic example:
see the case of Brooks Wharf and Bull Wharf Ltd. v. Goodman Bros. [1937] 1 K.B.
534 at 539-540, C.A. I think the duty on the defendants is only to show what
reasonable steps they took to preserve the item. Such is the standard of proof
because the duty with regard to care of the goods could not be put higher than
that they must do what is reasonable. The precaution they take for this
preservation of the goods must be such as reasonable and prudent care demanded:
see Brooks Wharf and Bull Wharf Ltd. case (supra) at 540 per Lord Wright M.R.<o:p></o:p><o:p>&nbsp;</o:p>So the
next question is: what evidence was led in proof of this fact? According to the
first defendant witness the item was in the defendants’ fitting shop. It is not
clear from the testimony whether the security men they have do carry out their
duties on a 24-hour a day basis or are restricted to after working hours
periods. Except for this piece of evidence, the defendants led no evidence to
establish what reasonable and prudent steps they took to prevent the loss of
the propeller blade. I do not think merely saying that the workshop was for
some hours of the day under lock and key and that security men guarded the
premises at these times would be sufficient. We are not told this is done 24
hours in the day. We are not told who keeps the key to the workshop and what
steps are taken to minimise access to that key. We are also not told what steps
there are to ensure that an officer who goes into the shop to collect other
items does not mistakenly or intentionally carry away something else which he
is not authorised to take out. Ordinarily also for an outfit such as the
defendants’ which carry and repair work for various persons, there is a need to
ensure that parts from one customer’s boat are not used on another person’s
boat. Nevertheless the evidence led by the defendants never established what
safety precautions, such as labelling, are carried out. In my view therefore,
the defendants have not sh</main>