The nonsense about bailment being a distinct form or cause of action has

taken root in England only over the last twenty years. The existence of

big chunky book on the subject is largely to blame. As Michael Bridge is

fond of pointing out, you will search in vain for a form of action in

bailment in the 3rd edition of Bullen and Leake (before our Victorian

forebears wisely abolished the forms of action and fused the

administration of law and equity).

To demonstrate how mid-twentieth century lawyers did not think in this

way: take the well-known case of Pyrene v Scindia [1954] 2 QB 402 (carrier

dropping fire engine on the dock whilst trying to load on vessel). In the

summary of the pleadings it is clear that some of the finest legal minds

of the period thought they were claiming for damages in "negligence"

against the carrier "as bailee". That is, they were claiming in tort in

one of the familiar sub-categories of negilgence (lawyers, doctors,

bailees, agents) well-recognised even before the Donoghue v Stevenson (or

Heaven v Pender) generalisation(s).

So we have the puzzling and ironic conundrum of a supposedly distinct form

of action being either invented or assumed to exist by appellate jusges

over a century after the forms of action were supposed to have been

abolished. Presumably Maitland would shake his head at the folly of it

all.

Never mind

best wishes

Gerard McMeel

University of Bristol

PS I may be partly to blame for having pointed my next-door neighbour in

chambers (successful counsel for the unfortunate men) in the direction of

Palmer!

On Thu, February 12, 2009 12:51 am, Neil Foster wrote:

> Dear Colleagues;

> For those who haven't seen it yet, the amazing decision in Jonathan

> Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 (04 February

> 2009) http://www.bailii.org/ew/cases/EWCA/Civ/2009/37.html deals with such

> fascinating questions as (1) is it "personal injury" to destroy someone's

> detached body part? (here, sperm designed to be stored when cancer

> treatment was taking place); (2) can such a body part be "personal

> property"? (yes, with reference to the grisly HCA decision in Doodeward v.

> Spence(1908) 6 CLR 406); (3) if so, is it not only actionable negligence

> but also actionable under the principles of bailment to carelessly let it

> be destroyed?; (4) can damage be recovered for distress short of actual

> psychiatric illness suffered by the donors- yes, interestingly enough, by

> analogy with Jarvis v. Swans Tours Ltd[1973] 1 QB 233 and by reference to

> two other Commonwealth decisions providing for mental distress in an

> action against a bailee.

> My only quibble with the decision, at least for the moment, is the Court's

> odd reference at [46] to the question "whether, independently of an action

> in tort, the men had a distinct cause of action against the Trust under

> the law of bailment". To my mind (others may disagree) the law of bailment

> is simply a way of deciding the question of who, in some commonly

> occurring circumstances, is entitled to possession; any action taken in

> relation to disturbance of that possession is still an action in tort

> (conversion, detinue, trespass to goods etc or whatever local version of

> these torts exists). But I don't necessarily disagree with the result.

> Regards

> Neil F

>

>

>

> Neil Foster

>

> Senior Lecturer, LLB Program Convenor

> Newcastle Law School

> Faculty of Business & Law

> MC158, McMullin Building

> University of Newcastle

> Callaghan NSW 2308

> AUSTRALIA

> ph 02 4921 7430

> fax 02 4921 6931

>

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