Pennington v De Wan

A gratuitous bailee who has custody of property bears the burden of showing that damage occurring during the bailment was not caused by the bailee’s fault. Where that burden is not discharged, the bailee is liable for the loss attributable to the damage. The appropriate measure may include the difference between the property’s value in its damaged and undamaged condition, together with reasonable expenditure required to make it saleable, provided the sums do not duplicate the same loss.

The claimant had obtained judgment against the defendant concerning, among other matters, damage to an Aston Martin DB9 which she had bought but permitted the defendant to use. Liability for the car claim had already been determined, with damages to be assessed. The issue at trial was the amount recoverable for damage sustained while the car was in the defendant’s custody, including the effect of unsuitable wheels and the cost of repairs needed before sale.

1. The defendant was a gratuitous bailee of the car. He understood that he was required to drive it responsibly and take reasonable care of it while it was in his charge.
2. As gratuitous bailee, the defendant bore the legal burden of showing that damage occurring during the bailment did not result from his fault. He failed to discharge that burden. The court rejected his explanations for the damage and found that the unsuitable wheels had damaged the car.
3. The car was worth £31,500 in its actual condition when sold. On the evidence, its value without the damage would have been £38,000. The court rejected both the higher comparators relied on by the claimant and the unsupported lower figure advanced by the defendant.
4. The defendant was liable for the £6,500 difference in value and for £1,995 spent on repairs required to make the car saleable. The total damages were therefore £8,495, plus interest.
5. Counsel was directed to draw up the necessary minute of order and provide a copy to the defendant.

The judgment itself records that default judgment was entered on 27 May 2016, and was varied on 22 July 2016 after the defendant applied to set it aside. Liability on the car claim was upheld, with damages to be assessed. This judgment determined that assessment.