B. A. T. Kenya Limited v. Express Transport Company Limited, Civ. Case 77-D-66; 30/9/67, Georges C. J.

B. A. T. Kenya Limited v. Express Transport Company Limited, Civ. Case 77-D-66; 30/9/67, Georges C. J.

Plaintiff hired defendant trucker to transship some goods from Dar es Salaam to Nairobi. The job consisted of housing one large machine and several small ones. After having picked up the goods, defendant decided to redistribute the load, so that the large machine would be moved forward from behind the rear axle. In so doing, the machine, which was not in a crate or other protective covering, was irreparably damaged because of the faulty way in which it was moved.

            Held: (1) No particulars of negligence were alleged by the plaintiff. Rather, he relied on the doctrine that under a bailment for hire contract it is incumbent upon the bailee to show that he exercised due care and that any damage occurred other than by his negligence. In this contention plaintiff was correct. [Citing Joseph Travers & Sons Ltd. v. Cooper (1915) 1 K. B. 73, 90.] Here the defendants were unable to put forth an explanation of how the accident could have occurred that was reasonably consistent with the absence of negligence on their part. (2) Both the defendant’s stationary and a form signed by the plaintiff’s agent contained “small print” purporting to preclude any liability on the part of defendant for any damages caused by its negligence. These clauses had no legal effect because it was not shown that hey wee ever brought to the attention of Mr. Shiel, plaintiff’s agent who dealt with defendant. [Citing Curtis v. Chemical Cleaning and Drying Co. Ltd. (1951) 1 All E. R. 631.] (3) Defendant had told plaintiff that it would not insure the shipment; plaintiff said it would obtain insurance. This cannot be construed as an agreement between the parties to limit in any way defendant’s common law liability. [Citing Hill v. Scott (1895) 2 Q. B. 371]. (4) Finally, defendant argued that it should plaintiff’s failure to properly pack the machine. The court found that since the damage was caused both by defendant’s improper handling of the machinery and plaintiff’s failure to package the machine, it had to apportion the blame and assess damages accordingly. [Citing Stuart v. Crawley (1818) 2 Stark 322; Higginbotham v. The Great Northern Railways (1861) 2 F. &F. 796; Barbour v. South Eastern Railway (1876) 34 L.T.67; Gould v. South Eastern and Chatam Railway (1920) 2 K.B. 186.] The damage here was caused  2/3 by the defendant’s mishandling of the machinery and 1/3 by the plaintiff’s poor preparation of the machine for shipment. (5) As to damages plaintiff argued that in order to put him in as good a position as he would have been in had the contract been properly performed, the bases for measuring the damages should be the cost of a new machine. The court used as the bases of damages the value of the machine on plaintiff’s books. That is original cost less

Depreciation. (Being a highly specialized machine there was no market at all for such machines.) [Citing Halsbury, 3^rd edition, Volume 4, page 151, paragraph 399.] (6) Defendant is not liable for plaintiff’s lost profits since he was not in any way made aware that delay in delivery would cause any particular loss to plaintiff. [Citing Halsbury, 3^rd edition, Volume 4, page 152, paragraph 402; British Colombia etc. Saw Mill Co. Ltd. v. Nettleship  (1868) L.R.3 C.P. 499.] (7) Plaintiff claimed interest of 9% on the money owed it. Interest was awarded at the rate of 7%. (8) As the machine was rendered utterly useless and irreparable, the recovery granted plaintiff was 2/3 of the depreciated value of the machine, less the value of the machine as scrap metal.