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  • Paras Sharma

Bailee’s Duty Of Care And Law Of Torts

Written by: Samarth Agarwal, Student, National Law University, Jodhpur


The concept of bailee’s duty of care finds a unique place in the shelves of Law of Torts. Whenever the bailee breaches the duty of care, he/she can be held liable for negligence in tort law. We find that there is a strong relation between the bailee’s duty of care and the Law of Torts.

Under the Law of Torts, “Negligence” has been defined as a breach of duty originated by omission to do something that a reasonable and prudent man would do under ordinary circumstances.[1] In order to prove negligence on the part of the defendant, it is necessary to manifest that he failed to observe the duty of care which he owed to the plaintiff and as a consequence of this failure, the plaintiff suffered either personal injury or injury to his property.[2] Thus, under Law of Torts, three primary constituents need to be proved to show the existence of negligence by the defendant to the plaintiff namely - (a) existence of a legal duty of care to the plaintiff, (b) breach of the duty of care on the part of the defendant and (c) damage resulting out of the breach of duty. It has been rightly stated by Lord Wright that negligence not only implies a heedless or careless conduct wither in commission or in omission but also connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty is owed by the defendant.[3]

It is imperative to note that not only a breach of duty but consequential damage is necessary to constitute tort of negligence. It is an essential ingredient for the tort of negligence to arise. An act of negligence arises only when damage occurs, as the damage is a necessary ingredient of this tort.[4] In the absence of proof of damage, a cause of action for negligence would not lie.

Therefore, for a claim of tortious negligence to arise in bailment, it is important that the above mentioned three conditions are fulfilled i.e. the bailee owed a duty of care to the bailor, the bailee breached the duty of care owed to the bailor and the bailor suffered consequential damage as an outcome of the non-fulfilment of the duty of care.

The concept of negligence was further bifurcated in the case by the apex court in the case of Jacob Mathew[5] between civil and criminal negligence where the court contended that for negligence under criminal law, it is necessary to show the presence of mens rea or the mental element. While criminal negligence sustains a degree of negligence which is very high or gross, negligence under civil law can arise only in the absence of either gross negligence or a very high degree of negligence.

Existence of Duty of Care

The existence of a duty situation or a duty to take care, is essential before a person can be held liable in negligence.[6] In the absence of the duty of care, no one can be held liable for negligence as he or she is not bound to take care of the good.[7] For instance, in a case where person say A sees a good belonging to another person say B getting damaged due to the rains, A cannot be held liable for negligence as he doesn’t owe any duty of care. However, if A owed a duty of care to B, an action of negligence under Tort law could arise against A.

In the case of bailment, Section 151 of the Indian Contract Act deals with the care that has to be taken by the bailee of bailor’s goods. Thus, this section clearly establishes a duty on the part of the bailee towards the bailor.

Breach of Duty of Care and Consequential Damage

After the plaintiff has successfully showed that the defendant owed him a duty of care, he/she has to show that the defendant breached this duty of care, for a claim of negligence to arise under the tort law.[8] The test that is applied in this case is again that of reasonability or ordinary prudence. The question that has to be asked to determine whether the defendant has breached his duty or not, is whether the defendant has omitted to do something which a reasonable man of ordinary prudence, guided by those considerations which ordinarily regulate the conduct of human affairs would have done, or has he done something which a reasonable and prudent man would not have done.[9]

In simple terms, to determine whether a person has been negligent, it is important to know what a reasonable and prudent man would have done in the similar situation. The amount of care, skill, diligence etc. of the defendant needs to be compared with that of a prudent man.

The reason why standard of care of a reasonable man has been considered as a frame of reference because the standard of care of each individual is highly subjective. The liability for negligence cannot be dependent upon the standard of each individual as that would be as variable as the foot of each individual.[10]

The degree of care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of the risk.[11] The amount of care required to be taken by a bailee depends upon the degree of danger present.[12] If the danger of good getting damaged is great, the individual has to take greater care to avoid the damages whereas, if the danger is lesser, only a slight amount of care is required.

The consequential damage refers to the damage caused as a consequence of the breach of the duty. In case of bailment, any loss or damage to the good during the time it is bailed and is in the possession of the bailee, is itself prima facie evidence of breach of duty on the part of the bailee. In the case of bailment, the mere loss or damage to the good not only indicates a breach of duty but also amounts to consequential damage.

Thus, when the three conditions namely, a) existence of a duty, b) breach of duty and c) consequential damage are proved, an action of negligence arises under the Tort Law. Here, as it has been brought out how the three conditions are fulfilled in the case of bailment, one can conclude that the breach of duty of care as per Section 151 on the part of the bailee constitutes negligence under Tort Law.

Burden of Proof

In Law of Torts, the general rule is that the onus of proving negligence vests with the plaintiff. It is the plaintiff who has to show that he has been injured due to the act or omission of a duty on the part of the defendant which he owed to the plaintiff.[13] Not only does the plaintiff owes a burden to show the existence of defendant’s legal duty, but he also needs to prove that he has suffered some injury on account of the breach of duty by the defendant.

However, there exists an exception to this rule i.e. res ipsa loquitur which primarily means that mere proof that an event or accident, the case of which is unknown, has happened constitutes negligence on the part of the other party. This maxim has been put to use by the Supreme Court in several cases. Accidents may be of such a nature that negligence may be presumed from the mere fact of the accident, the presumption depending on the nature of the accident.[14] The maxim finds its application where the circumstances are such that it proclaims the cause of accident to be due to defendant’s negligence.[15]

Negligence is established by the plaintiff prima facie where (a) it is not possible for the plaintiff to prove precisely what was the relevant act or omission which lead to the accident, but (b) on the evidence as it stands, i.e. in the absence of any evidence from the defendant, it is more likely than not that the effective cause of the accident, whatever it may have been, was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety.[16]

With respect to bailment, the bailee is responsible for taking proper care of the goods entrusted to him. In cases dealing with Sections 151 and 152, the loss or damage of goods entrusted to a bailee is the prima facie evidence of negligence, and the burden of proof lies on the bailee to disprove negligence.[17] Thus, when a person has been entrusted with the duty to take care of a good, he/she ought to take reasonable care to keep them unharmed. If the goods are damaged or lost, while they are in the possession of the bailor, he is liable unless he can show that the damage or the loss occurred without any neglect on his/her part.[18] Thus, the Supreme Court contended that the burden has been well established on the bailee.

Thus, in a nutshell, it can be said that as long as the bailee is not able to prove otherwise, he/she shall be liable from the time when the loss or the damage occurred to the bailed good. However, if the bailee establishes that sufficient care was taken by him/her to safeguard the bailed good, he would not be held liable. The idea behind putting the burden of proof and liability on the bailee, is that he would be knowing how the loss was caused.[19]

Measure of Damages

When the bailee has been proved to be negligent, generally the amount of money that can be recovered by the bailor from the bailee is the value of the goods lost, provided that there doesn’t exist any clause that states otherwise. Additionally, the plaintiff may also claim compensation for any consequential damage including damages for loss of use of the goods arising out of the negligence of the bailee, provided that it is not too remote in nature.[20] For example, in the case where the carrier was carrying the plaintiff’s goods and due to its negligence, the goods were destroyed, the court held that the carrier is liable not only for the price of the good but also for the additional costs including excise duty.[21]

Thus, we can see that there exists a direct relation between Bailee’s duty of care and tort law.

References [1] Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781, 784. [2] Heaven v. Pender, (1883) 11 QBD 503. [3] Lochgelly Iron and Coal Co. v. M. Mullan, (1934) AC 1, p. 25 : 149 LT 526 : 49 TLR 566. [4] Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111 [LNIND 1996 SC 2832], p. 2116 : (1996) 4 SCC 332 [LNIND 1996 SC 2832]. [5] (2005) 6 SCC 1 [LNIND 2005 SC 587]. [6] Madhya Pradesh Road Transport Corporation v. Basanti Bai, 1971 ACJ 328 : 1971 MPLJ 706. [7] Percy H. Winfield, Duty in Tortious Negligence, 34 CLR 41, 42-66 (1934). [8] RATANLAL AND DHIRAJLAL, LAW OF TORTS (26th ed 2013). [9] supra note 1. [10] Vaughan v. Menlove, (1837) 3 Bing NC 468, 475. [11] Franklin v. Bristol Tramways Co, (1941) 1 KB 255 48. [12] Darby Dickerson, Bailor Beware: Limitations and Exclusions of Liability in Commercial Bailments, 41 Vand. L.Rev 129, 130-170 (1988). [13] Hammack v. White, 464 S.W. 2d 520 (1971). [14] Scott v. The London St. Katherine’s Docks Co.,[1865] 3 H&C 596. [15] supra note 8. [16] supra note 8. [17] AIR 1989 MP 28 [LNIND 1988 MP 180]. [18]POLLOCK & MULLA, THE INDIAN CONTRACT ACT,1872, (15th ed. 2018). [19] supra note 18. [20] Brandeis Goldschmidt & Co Ltd v. Western Tpt Ltd, [1981] QB 864 : (1982) 1 All ER 28 (CA). [21] James Buchanan & Co Ltd v. Babco Forwarding and Shipping (UK) Ltd, [1978] AC 141 : (1977) 1 All ER 518 at 523.


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