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Report No. 38

28. English law-Statutory provisions regarding Crown liability.-

In England, under section 8(2) or the Post Office Act, 1953, the "registration" of or giving of a receipt for a postal packet or the giving or obtaining of a certificate of posting or postings or delivery of a postal packet shall not render the Crown in any manner liable for the loss of the packet or the contents thereof. Under section 2(1)(a) read with section 17 of the Crown Proceedings Act1, 1947, the Crown is liable in respect of certain acts of its servants or agents. But this does not apply in matters relating to a postal packet, under section 9(1) of that Act.

Section 9(2) of that Act, however, provides, that proceedings may be brought, against the Crown in respect of a registered inland packet for the loss or damage due to any wrongful act done or any default committed by a person employed as a servant or agent of the Crown while performing functions in relation to the receipt, carriage, delivery or other dealings with the packet. The amount recoverable is limited so as not to exceed the market value of the packet, and cannot also exceed the maximum amount available under Post Office Regulations, having regard to the fee paid for registration2. Relief is available only on a claim by the sender or the addressee. There are other detailed provisions, which need not, be considered.

1. The Crown Proceedings Act, 1947 (10 and 11 Geo. VI, C. 44).

2. For details, see Halsbury, 3rd Edn., Vol. 30, p. 178, para. 303.

29. The basis of the cause of action for registered inland postal packets, by virtue of section 9(2)(b) of the Crown Proceedings Act, 1947, has been described as "statutory, but resembling bailment". The history of the law, as explained by Lord Denning in a recent decision, may be referred to1.

Before 1947, when you sent a letter by post and it was lost or damaged in transit, you could recover nothing. You could not recover in contract, because it was held that neither the Postmaster-General nor the Post Office, made any contract to carry the letter2. You could not recover in tort, because the Postmaster-General was not liable for the torts of his subordinates3. Even when you sent a registered letter, you could recover nothing for the loss of it, because any claim was excluded by statute4.

Since 1947 you can still recover nothing for ordinary letters; and nothing for registered letters sent overseas. It is still the case than no action lies in contract5.

Nor in tort6. But the law has been changed entirely as to registered inland postal packets. By section 9(2) of the Act of 1947 it is enacted that proceedings shall lie against the Crown under this sub-section in respect of loss or damage to a registered inland "postal packet". The cause of action is, to my mind, entirely statutory. The section does not merely lift a barrier to proceedings against the Crown (as it does in cases under sections 1 and 2 of the Act). It gives a new statutory cause of action.

One thing is quite clear. The Post Office is a bailee of the registered packet and when you examine this new statutory cause of action you will find it is very like the action which the common law gives on a bailment. So much so that, in matters not specifically covered by the action recourse may be had, I think, to the general principles governing the law of bailment. At common law, bailment is often associated with a contract, but this is not always the case7-8. An action against a bailee can often be put, not as an action in contract, nor in tort, but as an action on its own, sui generis, arising out of the possession had by the bailee of the goods9-10.

The incidents of this cause of action are not to be found by looking at the old books on detinue and trover. We have outlived those forms of action, together with trespass and case11. Suffice it to say at the present day that if goods, which have been delivered to a bailee, are lost or damaged whilst in his custody, he is liable to the person damnified (who may be the owner or the bailor) unless the bailee proves that the loss or damage is not due to any fault on his part12-13. Likewise the Post Office (when they have accepted a registered packet, and it is lost or damaged whilst in their custody) are liable to the person damnified unless they can prove it was done without any fault on their part14, but as a matter of machinery the action must be brought in the name of the sender or addressee15.

1. Buildings and Civil Engineering Holidays Scheme Management Ltd. v. Post Office, (1965) 2 WLR 72 (78, 79): (1965) 1 All ER 163 (CA), discussed in 236 Law Times 213.

2. Whitefied v. Lord Le Despencer, (1778) 2 Cowp 754 (764) (per Lords Mansfield).

3. Baimbridge v. Postmaster-General, (1906) 1 KB 178: 22 TLR 70 (CA).

4. See section 13 of the Post Office Act, 1908.

5. Triefus v. Post Office, (1957) 2 QB 352: (1957) 3 WLR 1: (1957) 2 All ER 387 (GA).

6. See Section 9(1) of the Crown Proceedings Act, 1947.

7. Reg. v. McDonald, (1885) 15 QBD 323: 1 TLR 561.

8. Meux v. Great Eastern Railway, (1895) 2 QB 387: 11 RLR 517 (GA).

9. Winfield on the Province of the Law of Tort, p. 100.

10. Fifoot's History of the Common Law, p. 24; Midland Silicones v. Scrutton, 1962 AC 446: (1962) 2 WLR 186: (1962) 1 All ER 1 EL (E).

11.. Letang v. Cooper, (1964) 2 All ER 929 CA: (1964) 3 WLR 573.

12. Coldman v. Hill, (1919) 1 KB 443: 35 TLR 146 (CA).

13. Coldman v. Hill, (1919) 1 KB 443 (455) (per Scrutton LJ).

14. See section 9(2) of the Act of 1947 at the beginning and end.

15. See section 9(3) and (4).

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