Tinsley v Dudley [1951] 2 KB 18 (Court of Appeal)

7/23/2019 Tinsley v Dudley [1951] 2 KB 18 (Court of Appeal)

1/16

18

KING 'S BENCH DIVISION.

[1951]

I960 pa rties m ight aw ait a possible decision in some proceedings pending

~ in another court . If there was no jur isdict ion in the t r i b u n a l to make

its order, I th ink tha t there is only one th ing which this c ourt can

HAOKNEY,

do, and

t h a t

is to

quash

it on

tha t g round .

ETC., BENT I express no opinion as to w h a t the posit ion would have been if

TBIBUNAI.,. j .

n e

t r i b u n a l , on being informed th a t proceedings were actu ally in esse

KEATS for the purpose of rectifying the agreement, had themselves decided

to adjourn the app l i ca t ion .

Humphreys,

J

M O K H I S , J. I agree.

Order of eertiorari.

Sol ici tors : J. C. Fox, Gamble Son; The Solicitor Min istry of

Health.

S.

C.

c

A

TINSLEY v. D U D L E Y .

1950 [Plaint No. F. 126.]

Dec.11, 12.

~ T"~

Negligence

Public house

Y a r d

and garage adjoining

Motor-bicycle

M.S.,

' left in covered yard vrithout charge Bemoval by unauthorized

and

k

Dahds-

J

personLiability of publican.

werts,

J

T he plaintiff went

to a

public house (which,

it was

conceded,

was

not

a

common

inn) for

refreshment,

and

before entering left

his

motor-bicycle

in a

covered yard which formed part

of the

premises.

T he gates leading to the yard bore then ame of the house followed

by thewords '' covered yard andgarage''. T h e r ewas no a t t en d an t

to look after vehicles left in the y a rd , for the use of which no

charge wasmade,nor did theplaintiff inform the pub l ican tha the

had left his machine there. La ter , on leaving the premises, the

plaintiff discovered that the motor-bicycle had been stolen.

In an action for damages against thep u b l i can :

Held,

(1.)

tha t , though

the

plaintiff

was an

invi tee,

the

defendant

wasnot in his capacity of invitor l iable for the loss of the motor-

bicycle, for, though an invitor, when the invi ta t ion extends to the

goods as well as to the person of the invitee, is u n d e r a du ty to

protect not only the invitee but also his goods from damagedue to

defects in the premises, he is under no du ty to protect the goods

from the risk of theft by th i rd par t i es .

(2 .) T ha t , as the motor-bicycle had not been delivered into the

possessionof thedefendant , and as the defendant wasu n aw are t h a t

i t had been brought onto his premises,he had not become a bailee

of it, and was therefore not l iable as a bailee for its loss.

Scarborough

v.

Cosgrove [1905]

2 K. B. 805 and

Vltzen

v.

Nicols

[1894] 1 Q. B. 92 dist inguished ;

AsKby

v.

Tolhurst

[1937]

2 K. B. 242 considered.

[Repor ted by J. A.

G R I F F I T H S ,

Esq., Ba r r i s t e r - a t - L aw . ]


2/16

2 K. B.

KIN G'S BENCH DIVISION.

19

A P P E A L from Judge Samuel, sitting at Whitchurch county C. A.

court.

1950

At 8.30 p.m. on the evening of August 20, 1949, the plaintiff ;

arrived on his motor-bicycle at a public house called the Wheat- .

0

_

sheaf, at Green End, Whitchurch, Shropshire, of which the DUDLBI.

defendant was tenant and licensee. Before entering the inn for

a drink the plaintiff placed his motor-bicycle in a covered yard

which formed part of the premises. Entrance to the yard was

gained from the highway through double gates, capable of being

closed and locked, which bore the words, painted in large letters,

Wheatsheaf: Covered Yard and Garage ". No charge was made

for leaving vehicles in the yard, nor was there any attendant or

other person whose duty it was to look after vehicles.

Later the same evening the plaintiff left the inn to call upon

a friend, leaving his motor-bicycle in the yard. On his return

for another drink at about 10 p.m. he noted that it was still there;

but when about to leave the premises finally at 10.20 p.m. he

found that the machine was missing: it had in fact been stolen

and was not recovered.

The plaintiff brought an action for damages against the defen-

dant, claiming 130L for loss of the nlachine. He admitted in

evidence that he did not inform the defendant that he had left

his motor-cycle in the yard.

The county court judge held that on the night in question the

relationship between the parties was that of invitor and invitee:

the words on the gate leading to the yard constituted an implied

invitation to those who had business at the defendant's public

house to leave vehicles in the yard while on the premises; and

that the defendant had failed to exercise reasonable care of the

motor-bicycle while it was in his keeping as invitor. In the

circumstances it was not necessary to decide whether the defen-

dant was liable by reason of the Innkeepers Liability Act, 1863.

Judgment was entered for the plaintiff for the sum claimed. The

defendant appealed.

On the appeal counsel for the plaintiff intimated that he felt

unable to contest the defendant's submission that, since there

was no accommodation for travellers for the night, the premises

could not constitute an inn. The question whether the defendant

incurred liability under the Act of 1863 therefore did not arise.

Stephen Chapman

for the defendant. The distinction drawn

between the duty owed to an invitee and that owed to a licensee

has no application or relevance in the present case. That


3/16

2 KING'S BENCH DIVISION. [ 1 9 5 1 J

C. A . d i s t i n c t i o n o n ly a r i s e s i n ca s es co n c e rn i n g t h e d u t y o w ed b y an

1950 occ up ie r of da ng ero us p r em ise s to en su re th e safe ty of pe rso ns

w h o en t e r h i s p r e m i s es . T h i s d u t y of ca r e h a s n ev e r b een

I N S LBY

e x t e n d e d t o c o v e r c a s e s w h e r e t h e s u b j e c t - m a t t e r of t h e d i s p u t e

DUDLEY.

w as n o t an i n j u ry t o t h e p e r s o n b u t o n l y t h e l o s s o r d a m ag e of

a c h a t t e l .

T h e d e c i s io n i n

De Yong

v .

Shenburn

(1) is of so m e signific-

a n c e . T h e r e t h e C o u r t of A p p e a l h e l d t h a t a m a s t e r w a s u n d e r

n o d u t y t o p re v e n t t h e l o ss of h i s s e rv an t ' s ch a t t e l s . I t i s p l a i n

t h a t in t h a t c a s e t h e r e e x i s te d a l so b e t w e e n t h e p a r t i e s t h e

re l a t i o n s h i p of i n v i t o r an d i n v i t ee . T h e re w as n o s u g g es t i o n ,

h o w e v e r , e i t h e r i n t h e a r g u m e n t s o r i n t h e j u d g m e n t s t h a t t h i s

r e l a t i o n s h i p i mp o r t ed an y l i ab i l i t y t o t h e mas t e r a s i n v i t o r .

T h e r e l e v a n t d i s t i n c t i o n in t h e p r e s e n t c a se is b e t w e e n t h e

du ty owed by a l i censor to a l i censee and tha t owed by a ba i l ee

t o a b a i l o r. I f t h e d e f en d an t b e a l i c en s ee q u o a d t h e m o t o r -

b i cy c l e , h e i s n o t li ab l e fo r i t s l o s s : s ee p e r L o rd G r ee n e , M .R . ,

in

Ashby

v .

Tolhurst

(2 ) .

F o r t h e d e f e n d a n t t o b e a b a i le e t h e r e m u s t h a v e b e e n a

d e l i v e ry o f t h e mo t o r - b i cy c l e i n t o h i s cu s t o d y o r p o s s es s i o n .

F ro m t h e ev i d e n ce g i v en in t h e co u n t y co u r t it i s p l a i n t h a t t h e

re l a t i o n s h i p o f b a i l ee an d b a i l o r n ev e r a ro s e b e t w een t h e p a r t i e s *

for t h e d e fen d a n t h ad n o k n o w l ed g e t h a t t h e pl a in t if f h a d l e ft

h i s mo t o r - b i cy c l e i n t h e y a rd .

Ultzen v . Nicols (3 ) i s d i s t i n g u i s h ab l e f ro m t h e p re s e n t ca s e ,

fo r t h e re t h e re w as ev i d en ce f ro m w h i ch t h e co u r t co u l d i n f e r t h a t

t h e re h ad b een a s y mb o l i c d e l i v e ry o f t h e co a t i n t o t h e p o s s es s i o n

of t h e r e s t a u r an t p ro p r i e t o r . I t i s co n ce d ed t h a t if t h e y a rd

co n s t i t u t e d a g a rag e t h e d e fe n d a n t w o u l d b e l i ab l e for t h e l o s s

of veh ic les l e f t in i t by persons v i s i t ing the pub l ic house ; bu t i t

i s s u b m i t t e d t h a t t h e w o r d i n g o n t h e g a t e s l e a d i n g t o t h e y a r d

m ea n s n o mo re t h an t h a t a p e r s o n v i s it i n g t h e p u b l i c h o u s e is a t

l iber ty to park h i s car o r o t he r veh ic le the re wh i le he i s on th e

p r e m i s e s .

[H e a l s o r e f e r r ed t o Sa l m o n d o n t h e L aw o f T o r t s (1 0 t h ed . ) ,

p

4 7 6 . ]

Nigel Bridge for th e plaintiff. I n t h e p r e s e n t c a s e t h e r e w a s

ev i d en ce o n w h i ch t h e co u n t y co u r t j u d g e co u l d l eg i t i ma t e l y f i n d

e i t h e r t h a t t h e re w a s a b a i l m en t of t h e mo t o r - b i cy c l e t o t h e d e fen -

d a n t , o r t h a t i t w as t o b e i n f e r r ed , b y r ea s o n of t h e c i r cu m s t a n c es

(1) [1946] K. B . 227. (3) [1894] 1 Q. B . 92.

(2) [1937] 2 K. B. 242, 249.


4/16

2 K. B. KING'S BENCH DIVISION.

in whichthemachinewasleftin the yard, thataspecial contract C. A.

arose betweentheparties sufficient toimposeadutyofcare upon

the defendant.

ITWRT

Ashby v. Tolhurst (4) is plainly distinguishable on its facts. .

There,

the

plaintiff

was

given

a

ticket which gave rise

to a

special

DUDLEY.

contract excluding liability

for

loss

on the

part

of the

car-park

proprietors by reasonof the words containedon it. Fur ther , in

that case

the

car-park

in

question

was on a

piece

of

open ground:

it

was not an

enclosed yard forming part

of

larger premises

as

here.

I t is contended that a bailment may come into existenceby"

reason

of the

bailee's using such words

or

conduct

as to

imply

that

all

that

is

necessary

to

bring

the

bailment into operation

is

to accept theoffer soexpressed. Here, thewordingon thegates

constituted theoffer and the plaintiff accepted it byplacinghis

motor-bicycle

in the

yard, whereby there

was a

symbolic delivery

of

it

into

the

defendant's possession.

Suppose that in ltssenv. Nicoh (5) the facts had been that

the diner

had

deposited

his

coat

in an

unattended cloakroom

which

at its

entrance bore words inviting

him to

leave articles

there; the question whether or not a bailment arose in such

circumstances would still have beenone of fact to bedecidedby

the judge. Similarly

in the

present case there

was

evidence

on

which

the

judge could

so

find.

Inanyeventit iscontended that the relationship betweenthe

parties imposed

a

duty

of

care upon

the

defendant. A lthough

it

is

conceded that

he is not an

innkeeper,

yet his

position

is

analogous to thatof aboarding-house keeperwho isunderaduty

to take care of the goodsof his guests which arebrought to his

premises:

see Scarboroughv. Cosgrove (6).

Chapman

r e p l i e d .

c

E V E R S H E D ,

M.E., s t a t e d the f a c t s and c o n t i n u e d : I n his

p l e a d i n g s and at the t r i a l the pla int if f put his c a s e on two

a l t e r n a t i v e g r o u n d s . F i r s t , he a l l e g e d t h a t the d e f e n d a n t was an

i n n k e e p e r w i t h i n the m e a n i n g of the I n n k e e p e r s L i a b i l i t y Act,

1 8 6 3 , and

t h a t

as

s u c h

he

o w e d

a

d u t y

to the

pla int if f

to

l ook

af te r the m o t o r - b i c y c l e and t h a t he fa i led to p e r f o rm t h a t d u t y .

I t

was

a l le g e d t h a t

the

d u t y

was

o w e d

to the

p la in t i ff e i th e r

as

a t r a v e l l e r or o t h e r w i s e . S e c o n d l y , and a l t e r n a t i v e l y , if t h a t

(4) [1937] 2 K. B. 242. (6) [1905] 2 K. B. 805.

(5) [1894] 1 Q. B. 92.


5/16

22 KING 'S BENCH DIVISION. [ 1 9 5 1 ]

C. A . head of claim could not be sus taine d, t he plaintiff alleged th at in

1 9 5 0

the circum stances of this case ther e came into existence between

t h e plaintiff and the defendant a contract w hereby th e defendan t

TlNSLEY

, un de r too k to use rea son ab le care to look af t e r th e p la in t i f f ' s

DUDLEY. m ac h i n e , an d t h a t h e f a il ed t o p e r fo rm t h a t d u t y an d i s l i ab l e

Bvershed, acc ord ing ly in ne gl ig enc e for th e su m c lai m ed .

C e r t a i n p o i n t s h a v e d r o p p e d o u t of t h e c a s e . T h u s M r . C h a p -

m a n co n ced ed t h a t if i n t r u t h h i s c l i en t w e re an i n n k ee p e r h e

w o u l d b e li ab l e t o t h e p la in ti ff , w h e t h e r b eca u s e h e w as a t r av e l l e r

o r o t h e r w i s e . B u t M r . C h a p m a n h a s d r a w n o u r a t t e n t i o n t o s u c h

au t h o r i t y a s t h e re i s o n t h e t ru e ch a rac t e r i s t i c s o f an i n n k eep e r ,

a n d M r . B r i d g e h a s n o t f e lt a b l e t o a d d r e s s c o n t r a r y a r g u m e n t s

o n t h a t p o i n t . T h e r ea s o n i n g w h i ch co n c l u d es t h i s p o i n t i n t h e

d e f e n d a n t ' s f a v o u r is a s f o l l o w s : M r . C h a p m a n r e a d a s p a r t of

h i s a r g u m e n t c e r t a i n p a s s a g e s f ro m J e l f a n d H u r s t o n t h e L a w

of In n k ee p e r s . A cco rd i n g to t h a t w o rk i t i s of t h e e s s en ce of an

in nk ee pe r ' s func t io n t ha t he shou ld a fford re l ie f an d lodg in g to

p eo p l e t r av e l l i n g f ro m p l ace t o p l ace . M r . C h a p m an a ls o r e f e r r ed

t o o n e o r t w o au t h o r i t i e s , s u ch a s Reg. v . Rymer ( 7 ) ; Sealey v .

Tandy (8 ), an d an I r i s h ca s e , Reg. v . Armagh Justices (9) .

T h o s e c a s e s , h e c o n t e n d e d , s u p p o r t t h e v i ew t h a t n o o ne c a n b e

s a i d t o b e an i n n k eep e r u n l e s s h e o f f e r s acco mmo d a t i o n i n t h e

sen se of lodg ing to pe rso ns wh o w an t to s t a y a t h i s ho us e . I t i s

b ey o n d d i s p u t e in t h i s ca s e t h a t t h e W h ea t s h ea f H o t e l of fe red n o

s u c h a c c o m m o d a t i o n . T h e r e w a s , I u n d e r s t a n d , o n e s p a r e b e d -

ro o m , b u t i t w a s n o t fu rn i s h e d . T h e r e w a s t h e re fo re ab s en t t h e

c h a r a c t e r i s t i c w h i c h M r . C h a p m a n h a s c o n t e n d e d is e s s e n t i a l ,

n ame l y , t h a t t h e re s h o u l d b e l o d g i n g av a i l ab l e t o p e r s o n s w h o

req u i r ed i t . I n ca s e , o n an y fu t u re o ccas i o n , it i s n eces s a ry

fu r t h e r t o p u r s u e t h e m a t t e r , i t i s d e s i r ab l e t h a t I s h o u l d s ay n o

m o r e a b o u t i t t h a n t h a t , o n t h e a r g u m e n t s a s p r e s e n t e d a n d i n

v i ew of M r . B r i d g e ' s co n ces s i o n , I a s s u m e an d h o l d t h a t i n t h i s

cas e t h e d e f en d an t w as n o t an i n n k eep e r an d t h e re fo re t h a t t h e

fi rs t head of claim on which the plaint i ff seeks to found himself

c a n n o t b e s u s t a i n e d .

T h e r e s u l t i s t h a t t h e d e t e r m i n a t i o n of t h i s a p p e a l m u s t

d ep en d o n t h e s eco n d a r g u m en t p u t fo rw ard b y t h e p l ai nt if f,

n a m e l y , t h a t t h e r e w n s a c o n t r a c t b e t w e e n t h e p a r t i e s . A g a i n

w e a re a s s i s t ed b y M r . Br i d g e ' s co n ces s i o n t h a t , if t h e re i s t o b e

a co n t r a c t g iv i n g r i s e t o l i ab il i ty o n t h e d e fe n d an t ' s p a r t , t h e r e

(7) (1877) 2 Q. B . D. 136. (9) [1897] 2 I. E . 57.

(8) [1902] 1 K. B. 296.


6/16

2 K. B.

KING S BENCH DIV ISION .

3

must have been some delivery to the defendant of the possession

or custody of the motor-bicycle. M r. Bridge's argumen t is th at

such a giving of possession or custody was found as a fact by the

judge and that there is some evidence to support it.

T hat is the m ain point in the case but T will first dispose of

a subsidiary argument of M r. Bridge, found jd on Scarboroughv.

Gosgrove

(10). T hat case, which concerned a boarding-house

keeper and not an innkeeper, affords, he says, an analogy which

can be applied in this case to impose similar liability upon the

defendant. I do not accept that argum ent, which I think con-

fuses the special circumstances of a particular case with a matter

of principle. T here does not emerge from th at case any valid

ground for a claim for liability different from that to which I shall

later refer. In Scarboroughv. Cosgrove(10) th e two plaintiffs,

husband and wife, were lodgers at a boarding-house. T he wife

pointed out to the boarding-house keeper that she had with her

jewellery, and she inquired about the locking of her bedroom or

if there were some receptacle in the room in which the jewels

could be safely stored. T he boarding-house keeper, aware, there-

fore, of the existence of the valuables, explained that no separate

key could be given, but assured the plaintiff that if the jewels

were left in the room in the ordinary way, they would be quite

safe.

It is not surprising tha t on those facts the court found tha t

there was a special contract whereby the defendant, the boarding-

house keeper, promised to use reasonable care to look after the

jewels. T he jewels having been lost, it was held tha t there had

been a breach of duty involved in the defendant's promise, and

that he was liable accordingly.

U nlike the present case that case concerned personal belong-

ings of the person staying in the boarding-house, and, still more

significant, their existence was disclosed to the defendant in the

action, who in turn made representations to the plaintiff in

regard to them . Komer, L .J ., in the following passage stated

the m atte r clearly (11): One thing is clearnamely, th at the

liability of the landlord of the boarding-house in respect of the

luggage is not co-extensive with th e liability of an ordinary

innkeeper, bu t what the exten t of the liability is remains to be

considered. I t appears to me that, before that can be ascer-

tained , it is necessary, at any rate to a certain extent, to inquire

into the particular circum stances of each case. It may be that

C . A .

1950

T l N S L E Y

D U D L E Y .

Evershed,

M . R.

(10) [1905] 2 K . B . 805. (11) Ib id . 814.


7/16

4

KING'S BENCH DIVISION.

[1951]

C . A .

1960

TlNSLEY

D U D L E Y .

Evershod,

M.R.

some of the luggage has been comm itted temporarily, or during

the stay of the lodger, into the sole custody of the landlord.

In th at case, clearly, there would be a duty on the part of the

landlord to take reasonable care of it. On the other hand,

there may be cases where, by arrangement between the parties,

the guest has taken upon himself solely the care of his luggage,

and in those cases, whatever, may be the duties of the landlord

towards his guest, they could not be treated as based on the

footing th at in any sense he had the custody or partial custody

of the luggage. T he difficulty as to the law arises in cases like

t h e present, which are intermediate between the two I have

jus t mentioned, and where the luggage cannot be said to be in

the sole custody of either the landlord or the guest . T hat

passage emphasizes the important point which I think vital to

this case; that the decision must depend on discovering in whose

hands was the custody of the article in question.

T he county court judge in his judgment said : I came to the

conclusion that on the night in question the relationship

between the partieB was that of invitee and invitor. It was

admitted by the defendant's advocate that as far as the

plaintiff personally was concerned he was an invitee w hilst

purchasing and consuming alcoholic liquor on the premises, bu t

he was only a licensee for the purpose of taking and leaving his

motor-cycle in the defendant's yard. I cannot draw that

distinction. T he yard in question forms part of the whole

premises. On the door of the yard, as is shown by the photo-

graph, is painted in big letters

4

Stabling and Garage ' in

fact the wording was Covered Y ard and Garage in my

view, the said words constitute a t least an implied invitation

to those who have business at the defendant's inn tha t they

may leave any vehicle therein w hilst on the said prem ises.

W hilst the said motor-cycle was there on A ugust 20, 1949,

and whilst the plaintiff was on the premises consuming

his liquor, the said motor-cycle was taken away by some

unauthorized person and it has not been recovered by th e

plaintiff. In my view, the defendant failed to exercise reason-

able care of the said motor-cycle whilst it was in his keeping

as aforesaid .

It is on those last few words that naturally and properly

M r. Bridge has fastened, for he says tha t t ha t is a finding that

the relationship which existed in the circumstances of the case

on the evening of A ugust 20 was such tha t the bicycle was in


8/16

2 K. B. KING'S BENCH DIVISION. 25

the keeping of thede fendant publ ican . I amuna b l e to accept C. A.

tha t submiss ion . I cannot escape the conclus ion th a t the

19

5o

founda t ion ofth at par ticu lar f inding on thep a r t of thejudgelay

in thea s s um pt ion t ha t there la t ionship be tween theplaintiff and .

the defendant was thatofinvitee and invitorasdistinct from th at

of licensee

and

licensor.

In so far as he

based himself

on

that Evershe

distinction,

I

think that

the

judge misdirected himself.

I

think

_ U

that heassumed, wrongly, that if, asmight well have beenthe

proper inference,

the

plaintiff

was an

invitee,

it

followed that

therewas a delivery overofcustody orpossessionof themotor-

bicycle

to the

defendant

as

invitor. T herein,

to my

mind, lies

the fallacy in thejudgment.

T he question whether

the

relationship

of

one person

to

another

in respect

of

premises

is

that

of

licensor

and

licensee

or

invitor

and inviteehasoften been before thecourts;but thevalidityof

the distinction bears only,

I

think,

on

m atters

of

personal injury

or, at most, material injury which is incidental orancillaryto

personal injury.

The

basis

of

liability

in the

case

of an

invitee

is too well known to require long citation. Willes, J., in

Indermaurv. Dames (12)

stated tha t

an

invitee

on

premises

is

entitled

to

expect th at their occupier shall

on his

part

use

reasonable care

to

prevent damage from unusual danger

of

which

he knows

or

ought

to

know.

But the

damage which

is

there

referred to is seen, on examination of the authorities, to be

damage

to the

person rather than

to the

goods

of the

invitee,

save to theextent that such material damage may be purely

ancillary

to

personal injury. T here

is no

autho rity

for the

view

that

an

invitee has, quoad

his

belongings, such

as a

motor

car or

motor-bicycle, some higher right asagainst theinvitor tha nhas

a licensee against

a

licensor. Indeed, such

a

view could

not

rest

upon

any

intelligible principle.

For, as Mr.

Bridge

has

rightly

conceded,

the

liability

of the

defendant here depends upon posses-

sionorcustody; and I cannot seethat the distinction between

licensee

on the one

hand

and

invitee

on the

other

can of

itself

bear upon

or be

relevant

to the

question, whether there existed

some sort

of

bailment.

The case which

Mr.

Chapman made

the

foundation

of his

argument wasAshbyv. Tolhurst(13). Having regard againto

the concession which

Mr.

Bridge

has

properly made,

I do not

propose

to

discuss that case

at

length.

The

plaintiff

had

left

his

motor

car on a car

park,

and the

general question raised

was the

(12) (I860)

L . E. 1 C. P. 274. (13)

[1937]

2 K. B. 242.


9/16

6

KING'S BENCH DIVISION.

[1951]

C . A .

1950

T l N S L E Y

1) .

DVDhSi.

Evershed.

M. R .

position of one who places his car in a car park. T he plaintiff

there was given a ticket, and much turned on its effect. But ,

apart altogether from that point, it seems quite plain that the

decision in this court proceeded upon the view that one who

parks his car in a car park does not thereby deliver over the

possession or custody of the motor car to the keeper of the park

at any rate in the absence of some unusual or special circum-

stances which did not exist in that case and were not to be

imported by the giving or the terms of the ticket.

M r. Chapman particularly relied on this passage in the judg-

men t of the M aster of the Eolls (14): It seems to me tha t read-

ing the docum ent as a whole, including its own description of

itself,

namely, ' Car park ticket ', it really means no more than

'' this: the holder of this ticket is entitled to park his car in the

Seaway Car Park, bu t this does not mean tha t the proprietors

are going to be responsible for it. If tha t be the true construc-

tion of the document, and I think it is, the argum ent tha t the

presence of these exempting conditions points to the view tha t

'' they are inserted in order to remove a contrac tual liability

which would otherwise be there disappears and, in my opinion,

the arg um ent, when applied to a docum ent of this kind, is of

no real weight. If that be the true view, the relationship was

a relationship of licensor and licensee alone, and tha t relation

-

ship in itself would carry no obligations on the pa rt of the

licensor towards the licensee in relation to the chattel left there ,

no obligation to provide anybody to look after i t, no liability for

any negligent act of any person in the employment of the

licensor who happened to be there .

No suggestion was made in that case of the possibility of the

relationship being that of invitee and invitor, no doubt because

it would have been quite beside the point. I t m ay indeed be (if

it were relevant to determine in which character the plaintiff was

clothed) that he was in truth an invitee rather than a licensee.

But the point is whether or not there was a contract whereby

custody or possession of the car was handed over to the car park

owner. T he distinction, therefore, must, I think, be between

licensee or invitee on the one hand and bailor on the other.

Ashby v. Tolhurst (15) is of some importance because it did

lay down clearly that one who leaves his motor car in a car park

cannot assume or assert against the car park proprietor any

obligation to use reasonable care to look after the car. If,

(14) [1937] 2 K . B . 242, 249. (15) Ib id . 242.


10/16

2K B

KING S BENCH DIV ISIO N.

7

therefore, on the true viewof thefactsinthis case, this yardor

area, partofthe W heatsheaf premises, was really no more thana

car park,

the

case

is

governed

byAshby v. Tolhurst

(15).

On

the other hand,it is conceded that if I takemymotorcar to a

garage,in theordinary acceptation of that term, andleaveit

there, prima facie there willbe a delivery overofpossessionor

custodyto thegarage proprietor. Common experienceistha tin

such a case thereis anattendant onduty, and, a "garage",

according to theShorter Oxford Dictionary, is a place for the

storage and refittingofmotor cars.

On theleft of theentranceto theWheatsheaf there is an

archway orentranceto theyard inquestion. In thearchway

are double doors, bearinginlarge characters the legend"W heat-

sheaf: Covered Y ardandGarage". T he doorsarecapableof

being locked bypadlock, and,though I do notmyself attac h

great significance to thefact, alongthetopof thedoors thereis

a seriesofspikes.

[His lordship reviewed the evidence, andcontinued:] It

seems

to me

clear, therefore, that there

is no

basis

for

saying

that there was anydelivery overto thedefendant, or to any

agent ofhis, of thepossession orcustodyof themotor-bicycle..

T here was nobody about, and it is notsuggested th at accessto

the yard wasnotavailable toany who likedtowalkin.

Can theordinary conclusion or inference which inevitably

flow s from

the

evidence

be in

any way affected

by the

nature

of

the invitation on thedoor, particularly by the use of theword

garage"? I have cometo a clear conclusion that inthis case

it cannot. I think that the judge was quite righttosay tha tthe

wordingon thedoor wasaninvitation, and I should becontent

further, toaccepttheinvitationasbeing what thejudge stated,

namely, aninvitation tothose who had businesson thepremises

that they could leave any vehicle

in the

yard while there. T hat

invitation seems to me to be nomore than aninvitation that

thereis a carpark for the use of those who want tovisitthe

public-house. The use of theword "garage" here wasmore

eulogistic than accurate, and I do notthink that it can be

asserted that thewordingon thedoor, together with therestof

the evidence, involved the result that there was here symbolically

a delivery overofpossession to' thedefendant licensee, orthat,

there being aninvitation by thedefendant which theplaintiff

C.

A.

1950

T l N S L E Y '

0 .

D U D L B I .

Evershed,

M . R .

(15) [1937]

2 K. B . 242.


11/16

28 KING'S BENCH DIVISION. [ 95 ]

C. A. accepted, the defendant could not be heard to say that he had

iggg not accepted custody of the motor-bicycle.

~ If that is right, the facts and the basis of the decision in such

TlNS T

Vm

a case as

TJltzcn

v.

Nicols

(.16) cannot apply here. There the

DUDLEY. question was whether there had been a bailment of a coat.

Evershed,M.E. The county court judge had found as a fact that there had. It

is plain from the judgment of the Divisional Court that both

judges felt grave doubt about the propriety of the finding.

Charles, J., thought that there was evidence to support it and

therefore that the Divisional Court could not interfere. Wright, J.,

disposed of the matter more briefly by saying that the point that

there was no bailment had not been taken in the county court

and so was not available with the result that the finding as to

bailment must be assumed to be correct. But when one examines

the facts, it seems clear that there was some evidence to support

the finding, for there was a manual delivery of the coat to some

servant of the restaurateur, a waiter, who took it and hung it

on a peg. Nothing like that delivery over of possession, actual

or symbolical, occurred in this case, and therefore I think that

there was no evidence here which can be said to support the view

that there had been a transfer of possession. If that is so, the

defendant must succeed.

I have thought anxiously whether, since the judge never has,

I think, really applied his mind to the true question, it would be

right to send the case back for a new trial; but I have come to

the conclusion that it would merely involve the parties in unne-

cessary expense. The judge's note isbrief,but there has been no

suggestion on Mr. Bridge's part that it is in any way inadequate

or that any facts were stated or sworn to by the plaintiff which

are not recorded in the note. As Bomer, L.J., said in

Scarborough

v.

Cosgrove

(17), all these cases must depend upon their own

facts; and it should not be assumed that in every case in which,

adjoining a public house there is a place provided for the leaving

or storage of motor cars by patrons of the house it will follow that

the publican is under no liability. That question will depend

on whether, in the particular case, a contract of bailment comes

into existence or not. In this case I think, for the reasons which

I have stated, it would not be right to involve the parties in a

new trial, for I think that it is quite clear on the evidence that

no such contract was made. It was for the plaintiff to prove his

case,

and I think that he has failed to do so. One cannot help

(16) [1894] 1 Q. B. 92. (17) [1905] 2 K. B. 805.


12/16

i\

K. B. KING'S BENCH DIVISION. 29

feeling sympathy

for the

plaintiff,

who,

being quite innocent,

C. A.

loses

his

motor-cycle;

but

there

is

something

to be

said

for the 1950

view that where,

as

here,

the

question

is

upon which

of two

quite

""

> > M

r

^

T I N SL E I

innocent persons

a

loss should fall,

the

loss

may be

left where

it v.

has fallen. However that

may be, I am

clear, upon

an

examina-

DDDLEY.

tion

of

this case, that there

was no

evidence

to

support

a

delivery Evershed,

M.K.

of possession

or

custody

of

this machine

to the

defendant. There-

fore, there

was no

basis

in

fact

for the

judge's finding that

the

motor-bicycle

was in the

defendant's keeping.

The

appeal should

be allowed

and the

action dismissed.

JENKINS, L .J. I

agree.

The

county court judge found

it

unnecessary

to

determine whether

the

Wheatsheaf

was an inn or

the defendant

an

innkeeper within

the

common

law

meaning

of

those expressions.

The

facts

as

regards

the

establishment kept

by

the

defendant

at the

Wheatsheaf were that

he was the

holder

oi:an

ordinary full licence

for the

sale

of

liquor

for

consumption

on

or off the

premises.

He

served

no

meals, with

the

exception

of pies

on

Saturdays

and

snacks

on

market

and

auction days;

and heprovided noaccommodation in which guests could stay

the night.

On

that evidence,

Mr.

Chapman submitted that

the

Wheatsheaf

was not an inn, in the

relevant sense,

and he

cited

cases

and

references

in

textbooks tending

to

bear

out

that

sub-

mission.

Mr.

Bridge felt unable

to

support

the

judgment

on the

ground that

the

Wheatsheaf

was an inn, and he

intimated that

he felt that

no

useful, purpose would

be

served, having regard

to

the nature

of the

evidence,

in

sending

the

case back

for

that issue

to

be

resolved. Therefore,

as my

Lord

has

said, this appeal falls

to

be

determined

on the

footing that

the

Wheatsheaf

was not an

inn

and

that

the

defendant

was not an

innkeeper

in the

common

law sense.

In Robins Co.

v.

Gray

(18)

there

is

this well-known passage

at

the

beginning

of the

judgment

of

Lord Esher, M.E.

: " The

duties, liabilities,

and

rights

of

innkeepers with respect

to

goods

brought

to

inns

by

guests

are

founded,

not

upon bailment,

or

pledge,

or

contract,

but

upon

the

custom

of the

realm with

regard

to

innkeepers

" (19). As

this case falls

to be

determined

on

the

footing that

the

Wheatsheaf

is not an inn, I

think that

the

contrast drawn

in

that passage

is

perhaps instructive.

An inn-

keeper

is

under

a

special liability

by

virtue

of the

custom

of the

realm.

In

other cases

the

liability,

if any,

must

be

found

in

(18) [1895]

2 Q. B.

501.

(19)

Ibid.

503.


13/16

3

KING S BENCH DIVISION .

[1951]

C . A .

1950

T l N S L B Y

DODLEJ.

Jenkins, L.J.

some bailment or pledge or contract. In this case I think t ha t

the relevant ground of liability would be bailment or contract,

and I think that it can in effect be further narrowed down to bail-

ment, as the contract must be one which amounts to a bailment

in that there must be actual or constructive delivery of the chattel

into the hands of the person who is said to be responsible for its

safe custody.

T he question therefore is whether, in the circumstances in

which th e plaintiff came to leave his motor-cycle in the yard of

the Wheatsheaf in the present case, the defendant, as publican

and occupier of that public house, is fixed with liability for the

theft of the motor-cycle. [His lordship stated the facts and

continued: ] T he county court judge heldin my view quite

rightly that the plaintiff was an invitee at the Wheatsheaf. He

held furtherand I think quite rightlythat, having regard to

the notice written on the doors of the covered yard and garage,

the invitation extended not only to the plaintiff himself, but also

to his motor-cycle. I find nothing to quarrel with in that finding.

In fact, the position was that the defendant, as the proprietor of

the W heatsheaf, extended a general invitation to customers to

come to the Wheatsheaf and consume the liquor provided and,

if they chose, while they were so doing, to leave any vehicle or

cycle in or on which they came in the yard. B ut from th at t he

county court judge reached the conclusion that the cycle passed

into the keeping of the defendant and that he came under a duty

to use reasonable care to see that it was not stolen. In my

view, that conclusion was not supported by the finding that the

relationship of invitor and invitee existed between the defendant

and the

plaintiff.

M r. Bridge ingeniously argued th at in the judge's judgmen t

there is something amounting to a finding that, on the facts, a

contract of bailment was to be inferred; and he said that there

was some evidence to support that finding and that it ought not

to be disturbed. But the effect of the whole of the evidence is

simply as I have stated it, and it supports a case of invitor and

invitee, and nothing more. T herefore, the judgm ent comes, as

I think, to this: the judge, having found that the relationship of

invitor and invitee existed, held that, by virtue of that relation-

ship,

the defendant became responsible for keeping the motor-

cycle safe against theft and taking all reasonable precautions to

that end.

In my opinion, that liability cannot, as n matter of law, be

inferred from th e relationship of invitor and invitee. A s is well


14/16

2 K. B.

KING S BENCH DIVISIO N.

31

T l N S L E Y

DUDLEY.

known, a distinction is drawn for certain purposes between mere G. A .

licensees and invitees, invitees being a class of licensees who are

not merely authorized to come on premises, but are expressly

or by implication invited to do so. B ut the purpose for which

that distinction has been drawn has been that of measuring the

liability of the occupier of premises to persons coming upon them Jenkins, L.J.

with respect to the safety of the premises in point of physical

condition, and an invitor has been placed under a more stringent

liability in that respect to his invitees than a mere licensor to his

licensees. T he distinction is one which, owing to the unsa tis-

factory results produced in certain cases and the difficulty in many

instances of distinguishing or drawing the line between invitees

and mere licensees, has not escaped criticism from time to time,

but it is a well-established distinction in the field to which it

applies, and the field to which it applies is the physical safety of

the premises.

T here is no warrant at all on the au thorities, so far as

I know, for holding that an invitor, where the invitation extends

to the goods as well as the person of the invitee, thereby by

implication of law assumes a liability to protect the invitee

and his goods, not merely from physical dangers arising from

defects in the premises, but from the risk of the goods being stolen

by some third p arty . T hat implied liability, so far as I know,

iss one unknown to the law. I t would be a liability of a most

sweeping and comprehensive character and would have entered

into a very great number of cases if it existed. It would by now

be well established by the authorities. F or example, in

De Yong

v. Shenburn (20), where an actor's property was stolen from the

theatre in which he was rehearsing, a decision could have been

reached on the very short ground that the actor was an invitee,

that the invitation extended to the necessary properties which he

had to bring with him for the purpose of his performance, and

accordingly that the proprietor of the theatre or occupier of the

theatre was, however, responsible to him for the safe custody of

his goods. It was not even sought to argue the case on tha t

ground, but an analogous course was taken, in that it was sought

to extend the liability of an employer to his employee for the

safety of the premises on which the employee is required to work

to the safety from theft of the property brought by the employee

into the place of employment, du Parcq, L. J ., dismissed that

contention on the ground that there was no warrant whatever for

(20) [1946 ] K. B . 227.


15/16

3

KING S BENCH DIV ISION .

[1951]

0 . A .

1950

TlNSLBX

D U D L E Y .

Jenkins, L..T.

extending the liability of the master for the physical safety of his

servant to the safety of the goods of the servant from the ft. 1

venture to think that if the case had been argued, as it might

have been, on the basis of invitor and invitee, the extension

sought to be made of the liability of the invitor to the safety of

the invitee's goods from theft as well as his physical safety would

have been equally shortly dismissed.

Therefore, I agree that, as my Lord has said, the defendant

here can only be fixed with liability if the inference can properly

be drawn from the circumstances that there was an actual or

constructive delivery of the plaintiff's motor-cycle into his safe

keeping. On the facts, it seems to me th at clearly there was no

such delivery, actual or constructive: there was no attendant in

the yard to whom the motor-cycle could be handed over; the

plaintiff never even told the defendant that he had left the cycle

in the yard; the yard was one to which access could readily be

had from the street by anyone; and there is nothing in the case

whatsoever beyond the general invitation to customers, if so

minded, to leave their vehicles or cycles in the yard, an invita-

tion accepted by the

plaintiff.

In my judgm ent, those facts fall

far short of what is required to show an actual or constructive

delivery of the machine into the charge of the defendant. T he

onus which it is sought to place on persons in the situation of the

defendant, and which would be placed upon them , as it seems to

me,

if the learned county court judge's judgment were correct,

would be an enormously heavy and quite unreasonable one in

the circumstances. It would place them under an obligation in

effect to keep a yard such as the defendant's yard under constant

watch by some attendant appointed for the purpose and probably,

owing to the hours of duty involved, it would be necessary to

have more than one of these people in order that the watch might

be constantly kep t. Nothing short of th at , so far as I can see,

would protect the proprietor of premises such as these . W here

the special and peculiarly stringent liability imposed on inn-

keepers in the common law sense is not in question, an obligation

of that onerous character is not lightly to be inferred; and in my

judgment it would be quite wrong to infer it from a mere general

invitation to customers of an hotel, if so minded, to leave their

vehicles in the yard of the hotel, with nothing over and above that

amounting either to a delivery of the vehicle or cycle into the

charge of the proprietor of the premises or at least to some repre-

sentation by the proprietor that, in the event of vehicles or cycles

being left there, they would be safely kept.


16/16

i K. B. KING'S BENCH DIVISION 33

For these reasons, in addition to those s ta tedby myLord, I C. A.

agree that this appeal shouldbeallowed.

l g 5 0

D A N C K W E R T S ,

J . I am of the

sam e opinion.

The

defendant

clearly was not an innkeeper. A ccordingly, the s tandard of DODLE?.

liability of an innkeeper is only material for the purpose of

comparison with the position of other persons. Such other

persons have generally been regarded as subject to anotherand

different standard of responsibility. The county court judge

basedhisj udgmen t on the finding that theplaintiff was aninvitee

ra ther than a l icensee. Such adistinction isre levant to a claim

in tort for injury to theperson, but, as it seems to me, is not

re levant

to a

claim

for

loss

of

goods.

As

regards

his

m otor-cycle ,

i t seems to met h a t theonly inv itation , if any,which theplaintiff

received was to accept a licence to leave hismotor-cycle in the

yard. Henever brought the presence of the motor-cycle there

to the notice of the defendant or placed it in the care of the

defendant or hisservants .

I t isunn ecessary to gothrough thecases again, as they have

already been referred to so fully. All the cases in whichthe

owner of premises other than an innkeeper hasbeen held to be

liable

for

loss

of

property belonging

to

persons resorting

to the

premises appear to depend on a contractual acceptance of

liability to take care of theproperty by vir tue of a ba i lmentor

some element of deposit with theknowledgeof theowner of the

premisesor hisservants . T hat contractual e lement , it seemsto

m e, did notexistin thepresent case . Theplaintiff was nomore

than a licensee asregards thepresence of hismotor-cycle in the

yard, and the defend ant never assum ed anyobligation to take

careof it or toprevent thef t .

I n

my

view, therefore,

the

defendant

was

under

no

liability

to

the plaintiff for thelossof them otor-cycle , andaccordingly this

appeal shouldbeallowed.

Appeal allowed.

Solicitors:

Nash Field Co., for Garnett Culey Crcive;

Jaques Co., for Cyril Jones Son Williams Wrexham.

V O L .

II. 1951.

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Tinsley v Dudley [1951] 2 KB 18 (Court of Appeal)

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