I & J Frozen Foods (Australia) Pty Ltd v Ali Baba Lebanese Cuisine Pty Ltd

[2009] NSWDC 185

CITATION:	I & J Frozen Foods (Australia) Pty Ltd v Ali Baba Lebanese Cuisine Pty Ltd [2009] NSWDC 185
HEARING DATE(S):	12, 13 March, 7, 8 May 2009 and subsequent submissions in writing
JUDGMENT DATE:	22 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $111,460.80; 2. Defendant to pay the plaintiff’s costs.
CATCHWORDS:	BAILMENT– bailment for reward – frozen bulk packaged seafood and chicken meat belonging to plaintiff stored in cold storage facility owned by defendant – plaintiff’s goods stolen by former employee of defendant – whether defendant has displaced the inference that the loss of the plaintiff’s goods was caused by negligence of the defendant as bailee.
LEGISLATION CITED:	No legislation was cited
CASES CITED:	Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 Pitt, Son & Badgery Ltd v Proulefco SA [1994] HCA 6; (1994) 153 CLR 644 Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd [1966] HCA 46; (1966) 115 CLR 353 Tottenham Investments Pty Ltd v Carburettor Services Ltd, NSWCA, unreported, 1 July 1994
TEXTS CITED:	NE Palmer, Law of Bailment, 2nd ed, (1991)
PARTIES:	I & J Frozen Foods (Australia) Pty Ltd (Plaintiff) Ali Baba Lebanese Cuisine Pty Ltd (Defendant)
FILE NUMBER(S):	3262 of 2008
COUNSEL:	Mr E Chrysostomou (Plaintiff) Ms R Francois (Defendant)
SOLICITORS:	Our Lawyers Our Conveyancers (Plaintiff) Picone & Co Solicitors (Defendant)

JUDGMENT

Nature of the case

1. The plaintiff claims damages from the defendant in respect of non-delivery up of a number of paletted cartons of bulk packaged frozen seafood and chicken meat. The defendant was unable to deliver the goods in question because the goods had been stolen from the freezer area of the defendant’s cold storage premises. The plaintiff’s claim is framed both in bailment and in breach of contract. In this case the difference between those two formulations is immaterial.

2. There is no dispute that in the early hours of the morning of Wednesday 2 April 2008, an ex-employee and cold store manager of the defendant, Mr Tom Miholic, along with a number of accomplices using large trucks, broke into the defendant’s premises and stole the plaintiff’s goods.

Issues for determination

3. The issues calling for determination in the proceedings have been distilled as follows:

(a) The nature of the bailment, the applicable duty and standard of care owed by the defendant;
(b) Whether the defendant was negligent in connection with the storage of the plaintiff’s goods;
(c) If negligence is established, was such negligence the cause of the plaintiff’s losses;
(d) Quantum of damage.

Summary of findings

4. I have found the commercial relationship between the parties to be that of bailment for reward. I have found the defendant was in breach of the duty it owed to the plaintiff in respect of the plaintiff’s bailed goods that the defendant was unable to deliver up to the plaintiff because the goods had been stolen by a former employee of the defendant. I have found the breach of duty of care by the defendant was the cause of the plaintiff’s loss as claimed. I have assessed damages in favour of the plaintiff in the claimed amount of $111,460.80.

Facts

The parties

5. The plaintiff, I & J Frozen Foods (Australia) Pty Ltd, is a company engaged in the wholesale importation and distribution of seafood and other foodstuffs intended for re-sale to the restaurant and catering trade.

6. The defendant, Ali Baba Lebanese Cuisine Pty Ltd, is a company that had a number of business operations at its factory premises at Ingleburn, NSW. One of those business operations comprised a freezer and cold storage facility where, on commercial terms, it received and stored frozen foodstuffs on behalf of customers pending re-delivery instructions.

Relationship of the parties

7. The commercial relationship between the parties commenced on 10 July 2006 when Mr Ivan Risteski on behalf of the plaintiff verbally requested Mr Ali Marjan on behalf of the defendant to open a credit account for the plaintiff. The basis of that relationship was that the defendant would provide the plaintiff with bulk cold storage facilities for frozen seafood and other foodstuffs that would be delivered to the defendant’s premises from time to time by third parties. Once goods were delivered to the defendant’s premises, the goods would remain stored there on behalf of the plaintiff pending re-sale to customers in the restaurant trade. Between 10 July 2006 and 2 April 2008 the described relationship continued.

8. On 12 October 2007 the parties reduced their agreement to writing specifying additional terms as to payment and termination. During the currency of the commercial relationship the plaintiff arranged the delivery and collection of goods to and from the premises of the defendant pursuant to their commercial relationship on terms that required payment from the plaintiff to the defendant. The monetary terms of the storage arrangement were that the defendant would charge the plaintiff the sum of $5 for each pallet movement both in and out of the cold store and a further fee of $5 per week for each pallet stored.

The premises

9. The premises were described in oral evidence, and through photos and architectural plans. It is sufficient to describe the premises as comprising a gated factory and warehouse compound located in an industrial area. Some parts of the premises were used by the defendant for the wholesale manufacture, storage and distribution of its own meat products, such as kebabs and shawarma, to fast food outlets. Other parts of the premises comprised a substantial warehouse freezer and cold storage area that was available on commercial terms for the secure storage of frozen food products. At times the value of the goods stored at the premises amounted to some millions of dollars.

The security arrangements at the premises

10. Before the occurrence of the theft giving rise to these proceedings the evidence discloses that the defendant had gone to some considerable trouble and expense to install and maintain security arrangements within the premises. During the course of the hearing the defendant sought, and without objection, obtained a non-publication order concerning its security arrangements. In conformity with that order, in this judgment I will refer to those security arrangements in general terms.

11. Well before the loss of the plaintiff’s goods the defendant had installed an elaborate security system that incorporated numerous closed circuit television [“CCTV”] security cameras and door movement sensors. When these cameras were made active they recorded the movement of persons and vehicles around the perimeter and inside the premises. At the relevant time the defendant’s system of security involving the use of CCTV for the recording of visual data did not include active real time on-screen monitoring of the data that was being recorded by the CCTV cameras. The evidence disclosed that the door movement sensors within the premises had been de-activated since May 2006 because the defendant had been experiencing some technical problems with these devices. The evidence disclosed that it was not possible to have sensors in the freezer itself due to the moist atmosphere of the freezer.

12. Before and at the time of the theft in question the premises also incorporated a back to base alarm system. That system related to a number of electronically defined security zones within the premises. This system was set up for manual activation and de-activation by selected staff members when they first arrived and last left the premises. In addition there was a cyclone wire perimeter gate secured with a reinforced wire chain and padlock arrangement, which was used to secure the gates in the closed position when the premises were closed at the end of the working day. The usual daily practice was for the gate to be unlocked at the commencement of the work shift on the next working day. Otherwise, the entry to the buildings within the premises was by operating keyed locks and electronic key pads to the various points of entry as shown in the photographs and plans that were tendered in evidence.

13. Significantly, at the relevant time, employees on the premises did not have general access to a telephone handset to make an outside call if the need to do so arose for any reason. The only available telephone within the premises was situated in the office which was away from the freezer and manufacturing areas.

14. The freezer section of the premises had three entry points, none of which had locks on the doors. There was roller door access to the freezer store. This door could be opened manually when the electrical motor, which normally operated it, was switched off.

15. A few days before the theft, on Sunday 30 March 2008 the defendant terminated the employment of its store manager, Mr Miholic. On Monday 31 March 2008 Mr Miholic attended the premises as requested. At that time his keys and security fob were taken from him. Mr Ali Marjan electronically cancelled Mr Miholic’s alarm de-activation codes. The stated reasons given for the termination of the employment of Mr Miholic included his negligence in his use of a forklift truck to damage a roller door that gave access to the freezer area of the premises, not filing the correct paperwork recording the movement of goods and the quantity of goods in and out of the freezer store within the premises, as well as being rude to customers.

Events surrounding the theft of the plaintiff’s goods from the defendant’s premises

16. The chronology of the events of the theft of the plaintiff’s goods is within a relatively short compass.

17. The defendant’s premises were closed and locked by the cleaners in the usual manner at the close of business on the evening of Tuesday 1 April 2008.

18. At an unknown time during the early hours of the following morning the padlocked wire chain that secured the gate to the premises had been cut and a large truck belonging to the defendant’s formerly employed storeman Mr Miholic was driven into the grounds of the premises. At about 3.40am on the morning of the theft Mr Miholic drove into the premises and then drove out again. I infer that this occurred to enable Mr Miholic to check whether any employees of the defendant had de-activated the alarm system on arrival in accordance with the normal procedure for that hour of the morning. Subsequent events are timed from the CCTV footage.

19. At 3.42am the defendant’s employee Mr Abdul-Rahman arrived at work by vehicle and as he did so he saw that Mr Miholic’s vehicle was being driven out of the premises. At 3.47am Mr Abdul-Rahman proceeded to de-activate the alarm for the perimeter of the building and the zone where the freezer was located within the premises. At 3.49.40 Mr Abdul-Rahman turned on the lights within the premises and then went about his duties in the shawarma manufacturing room which was separate and apart from the freezer area. At 3.49.53 Mr Miholic and his accomplices arrived in his car and also with a large truck. At 3.51am an access roller door to the premises was opened by one or more of the intruders. Thereafter the position of one or more of the internal security cameras was manipulated in a way that altered the normal field of view for recording.

20. At 3.58am Mr Miholic started his parked truck and drove it to the loading dock of the premises. At about 4.30am Mr Abdul-Rahman came out from where he had been working within the premises and became concerned at what he then saw. He observed Mr Miholic using pallets, which did not belong to the defendant, and he became suspicious. At the time he felt powerless to intervene as he was alone and other employees of the defendant had not yet arrived. He did not have access to a telephone to summon assistance. Although his command of the English language was limited, he spoke with Mr Miholic after observing stored goods being unloaded from a forklift for loading onto a truck. Mr Miholic had given him an excuse for being on the premises but Mr Abdul-Rahman remained suspicious. At 4.41am, after another work colleague arrived with a mobile telephone Mr Abdul-Rahman called Mr Ali Marjan by using that other employee’s mobile telephone. In that call he informed Mr Marjan of Mr Miholic’s activities that he had observed. At that time Mr Miholic declined Mr Abdul-Rahman’s invitation to speak with Mr Marjan on that other employee’s mobile telephone. Mr Abdul-Rahman said he was unaware that there was a security company telephone number he could have called to summon assistance. In any event, outside of the office there were no employer provided telephones available for such a call to be made.

21. At 4.45am Mr Miholic, his vehicle and the truck were seen to be leaving the premises. During the time leading up to these events the plaintiff’s goods were loaded onto the vehicles, removed from the premises and stolen by Mr Miholic and his accomplices.

22. At about 5.20am Mr Ali Marjan arrived at the premises. This occurred at around the same time as the arrival of the police whom he had earlier summoned by telephone.

23. Mr Miholic was subsequently apprehended and is currently serving a term of imprisonment for the theft. The plaintiff’s stolen goods have not been recovered.

24. The defendant submits that the irresistible inference arising from these events is that the theft had been planned to occur once the defendant’s alarm system had been de-activated. The defendant submits that the thieves clearly contemplated that they could deal with the limited number of employees who would then be present on the premises and be able to successfully make away with the stolen goods.

Plaintiff’s awareness of the loss

25. The plaintiff became aware of the loss of its goods when Mr John Risteski arrived at the premises about 6am to collect some of the goods at which time the storeman then on duty informed him there had been a theft and he had better check which of the goods belonging to the plaintiff were missing. Mr John Risteski then contacted his father Mr Ivan Risteski following which they went about the task of identifying their losses.

The goods that are the subject of the claim

26. There was a dispute over the nature and quantity of the plaintiff’s goods that had been bailed to the defendant and stolen from the defendant’s custody. The evidence discloses that during the course of the commercial relationship that subsisted between them the plaintiff stored goods at the defendant’s premises pursuant to that commercial arrangement.

27. The plaintiff claims that its stored goods that were valued at $111,460.80 were stolen from the defendant’s premises. The plaintiff claims these goods comprised the following items;

(a) 36 x 12kg cartons of 21/30 HOSO Raw Banana prawns valued at $5,551.20;
(b) 191 x 10kg cartons of 21/25 Vannamei PDTO prawn cutlets valued at $33,425;
(c) 234 x 10 kg cartons of 31/40 Vannamei PD IQF prawn meat valued at $33,930;
(d) 2 x 10 kg cartons of 31/40 Vannamei prawns valued at $290;
(e) 36 x 10kg cartons of Banana PD IQF prawn meat valued at $6,840;
(f) 96 x 12 kg cartons of Steggles chicken breast meat valued at $8,985.60;
(g) 48 x 10 kg cartons of Golden Sea cooked and peeled prawns valued at $3,744;
(h) 2 pallets of Illex squid valued at $5,500;
(i) 1 pallet of 31/40 prawns valued at $13,195;

28. The plaintiff claims that these amounts comprising its claim are proven by Exhibits “C”, “M”, and “N” and has provided a schedule in its submissions reconciling and cross-referencing these amounts to the Exhibits to which I have referred. On behalf of the plaintiff Mr John Risteski and his father Mr Ivan Risteski gave evidence that the plaintiff’s goods were stored at the defendant’s premises and that the goods were described and valued as outlined in the Exhibits to which I have referred.

29. On the other hand, the defendant asserts that the plaintiff’s system of record-keeping and alleged non-compliance with pick-up and delivery protocols required by the defendant, indicated that it was not clear as to what goods were taken or indeed stored at the premises at the time of the theft. The defendant further submits that the Exhibits to which I have referred do not substantiate the claimed losses. The plaintiff has made submissions refuting that submission. The respective parties made allegations and counter-allegations of laxity in record-keeping and security procedures.

30. Having considered the evidence and these allegations I prefer and accept the evidence called on behalf of the plaintiff as to the description, quantity and value of the plaintiff’s goods stored at the defendant’s premises and which the defendant was unable to deliver up to the plaintiff after the theft. I accept the evidence of Mr John Risteski and Mr Ivan Risteski in this regard. In coming to this view I have also had regard to the evidence of Mr Ali Marjan to the effect that the former storeman Mr Miholic had been derelict in his record-keeping duties concerning the goods stored at the premises at the relevant time. I do not consider the evidence of the plaintiff’s method of record-keeping shows that the plaintiff’s records system was unreasonable or precluded identification of the stolen goods as has been submitted by the defendant.

Issue (a) - Nature of the bailment and duty of care

Bailment for reward

31. I am satisfied that between them the parties established a relationship of bailment in respect of the goods, which are the subject of this claim. I am satisfied that the bailment was on commercial terms and was for reward. The evidence discloses that the defendant knew that the goods bailed comprised frozen seafood and chicken meat, which had a substantial re-sale value. I find that the monetary terms on which the defendant held and stored the plaintiff’s goods reflected and incorporated the reasonable commercial cost of keeping those goods safe until re-delivery was required at the direction of the plaintiff. I find that in undertaking this arrangement the defendant assumed a duty of care over the plaintiff’s goods once they were deposited in the defendant’s freezer.

Issue (a) - Duty of care owed

32. As bailee the defendant owed a duty of care to the plaintiff in respect of the goods stored. That duty required that reasonable care be taken to prevent the goods from being lost or stolen. In the case of a theft of goods there is a presumption that the goods were expropriated as a result of breach of duty of care on the part of the bailee : NE Palmer, Law of Bailment, 2nd ed (1991), The Law Book Company Ltd, at 790. There was no controversy between the parties concerning the existence of this duty of care. Nor could there have been : Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 at 228. In this case it fell to the defendant to rebut this presumption and the defendant carries the burden of showing that it was not negligent in respect of the loss of the plaintiff’s goods and took reasonable care of the goods in the circumstances : Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd [1966] HCA 46 per majority at [7]; (1966) 115 CLR 353.

33. In my view, in this case the defendant’s duty of care extended to the requirement to take reasonable care to prevent the theft of the plaintiff’s goods : Pitt, Son & Badgery Ltd v Proulefco SA [1994] HCA 6 per Gibb CJ at [7]; (1994) 153 CLR 644. That duty required that the defendant take reasonable steps to keep out intruders who might be otherwise tempted to misappropriate the plaintiff’s goods : Tottenham Investments Pty Ltd v Carburettor Services Ltd, NSWCA, unreported, 1 July 1994, following and applying Pitt, Son & Badgery.

Issue (b) - Did the defendant breach the duty of care owed to the plaintiff

34. The defendant submitted that in this instance it had discharged its duty of care by making adequate and reasonable security precautions to guard against the theft of the plaintiff’s stored goods from within the premises. I do not accept the defendant’s submissions concerning the claimed discharge of the duty of care it owed to the plaintiff. I have come to this view for a number of reasons.

35. First, in my view, it was insufficient to simply have installed CCTV cameras without a system for monitoring the data that was recorded by these cameras. I infer that such data was available to be viewed on screens displaying what was recorded by these cameras. I consider that there was a weak point in the security arrangements in place at the defendant’s premises at the relevant time. This was at the time of the day when the thieves struck, namely, after the premises had been unlocked in the early morning and when the back to base alarm system had been de-activated which was before the main workforce had arrived to carry out their tasks. After the arrival of the main workforce I consider that their presence would have served as a practical and effective deterrent against theft. In my view, given the security technology employed by the defendant, it would not have been unduly costly or impractical to arrange to have someone either on or off the premises to monitor the CCTV images in this relatively short hiatus of time between the unlocking of the premises and the arrival of the main workforce.

36. Secondly, I consider it was ill-advised and careless to operate a system of work that entailed the unlocking of the perimeter gates to the premises by a sole employee in the early hours of the morning and to have that employee then go about his work in another part of the premises that was remote and distant to the cold store area where goods of significant value were kept and where closed doors presented no obstacle to a well informed thief, particularly when the three points of entry to the freezer were not locked. There seemed to me to be no purpose in leaving the gates unlocked and open if no storemen were in attendance to receive or to check out cold stored goods. A system that left the gates open and the cold store unattended behind unlocked albeit closed doors was in my view deficient and risk laden in respect of the security of the goods stored pursuant to such an arrangement. In my view the defendant ought to have addressed this issue and the related exposure to risk by having an employee assigned to gatekeeping or perimeter monitoring duties from the time the alarm system was de-activated until the employed storeman or storemen arrived to carry out their rostered duties. This assumes that it was indeed necessary to de-activate the alarm to the zone that comprised the freezer area.

37. Thirdly, a work system for operating a storage and manufacturing facility that did not provide the necessary equipment to enable an employee to make an outside telephone call to summon assistance, whether it be the police, ambulance or fire brigade, was in my view inherently deficient.

38. Fourthly, without directing any criticism to the rostered employee, Mr Abdul-Rahman, he was not proficient in the English language in either its written or spoken form. In my view, in those circumstances it was a systemic deficiency to have him there as the sole employee on duty, unable to summon help or to effectively challenge intruders, which was a duty that Mr Ali Marjan ultimately relied upon him to perform. In my view, having regard to the evidence of the financial turnover of the business, it would have involved relatively small expense to have another employee or a gatekeeper on duty at the relevant time, at least until the main workforce arrived to take over the responsibility for the security of the cold store whilst the gates remained unlocked and whilst the store freezer was otherwise unattended. In this regard the plaintiff submitted that security guards ought to have been employed. I consider that resort to such a measure would have involved undue expense in the circumstances. However, I consider that the presence of another employee rostered to carry out gatekeeper or perimeter monitoring duties for a limited number of hours per day between the time the gates were unlocked and the time the cold store workforce arrived would have been a simple, practical, expedient relatively inexpensive and effective security measure to deter theft. Alternatively, there could have been remote CCTV monitoring arranged by a security facility that would have been in a position to promptly call for a police presence.

39. Fifthly, I do not see why the back to base alarm system employed by the defendant had to be calibrated to de-alarm all the zones within the premises particularly as the first employee to arrive was only required to work in the shawarma manufacturing room which was well away from the freezer area. Given the expense the defendant incurred for its security arrangements it does not seem to me to have been an unduly expensive or impractical proposition to have also separately configured a security zone for access to the freezer cold store to ensure that area remained alarmed until the appropriate personnel came on duty for the working day. In my view, this, in conjunction with active and operational perimeter movement sensors, would have provided good and effective security with back to base alert in the event that the security zone in question had been breached by unauthorised persons. Instead, all the defendant had in place was a method of data recording that was only of assistance in providing evidence to identify intruders after the event, which was of only limited deterrent effect.

40. Sixthly, I infer from the fact that the movement sensors on the premises had not been in working order since 2006 and were allowed to remain in that state for such a long time, that the defendant was not as security conscious to the degree of prudence that was submitted by its counsel, including to the standard of reasonableness required of it in the circumstances.

41. For the foregoing reasons, both individually and in combination, I find that the defendant was in breach of the duty of care that required it to ensure that the plaintiff’s goods were not lost or stolen due to negligence on the part of the defendant.

Issue (c) - Causation of loss

42. The defendant has further submitted that the loss of the plaintiff’s goods was caused by the determined criminality of Mr Miholic and his accomplices. The defendant has submitted that such behaviour and conduct could not have been reasonably predicted or prevented. The defendant further submitted that the level of organisation, determination and lack of concern for the consequences of being apprehended, as was demonstrated by the manner of Mr Miholic’s execution of the theft, indicate that no form of security that was reasonably available would have prevented the theft.

43. I do not accept those submissions. Instead, I find that the defendant’s breach of duty of care was the material cause of the loss of the plaintiff’s goods. I have come to this view because I consider that the combined shortcomings in the security arrangements at the premises obviously emboldened a disgruntled former employee with specific knowledge of security arrangements and the shortcomings of those arrangements, to commit theft. This was not a random or opportunistic instance of theft. Instead, it was obviously cunningly planned and boldly executed in the knowledge that there were obvious weaknesses in the defendant’s security arrangements.

44. The defendant submitted that it acted reasonably in that when Mr Ali Marjan had been informed of the unauthorised activities of Mr Miholic and his accomplices he rang the police promptly and the police arrived at the same time as he arrived at the scene. The defendant submits that since the goods had left the premises by that time, from a causation perspective, the plaintiff’s case should fail. I do not accept that submission as it is flawed for a number of reasons.

45. First, it took some time before Mr Abdul-Rahman was able to ring Mr Marjan. Those vital minutes would not have been wasted if Mr Abdul-Rahman had been able to make a telephone call immediately his suspicions were aroused instead of haphazardly having to wait for the arrival of another employee with a mobile telephone. Secondly, further vital minutes were wasted whilst Mr Marjan asked Mr Abdul-Rahman to attempt to intercede with Mr Miholic in an endeavour to have him desist, a fact that Mr Marjan conceded in his evidence. Instead, the police should have been called immediately. Thirdly, and more importantly, I find that it was the inherent laxity of the defendant’s security arrangements which had emboldened Mr Miholic and his accomplices to steal in the first place. I find that it was that laxity that foreseeably exposed the plaintiff’s goods to theft.

Issue (d) – Quantum of loss

46. The defendant submits that the plaintiff’s method of stock take was unreliable and was only undertaken after the theft so as to render such a stock take unreliable as a means of establishing the plaintiff’s losses. The defendant sought to criticise and describe the plaintiff’s practice of delivery, collection and on-selling of its goods as ad hoc and unconducive to accurate record-keeping by the defendant. The defendant submitted that such circumstances created by the plaintiff prevented reasonable or accurate identification of the plaintiff’s goods kept on the premises at the time of the theft.

47. I do not accept these criticisms as valid in the circumstances of this case. I accept the evidence of the plaintiff’s witnesses as to the deposit of the goods with the defendant in the quantities and descriptions claimed. Based on Exhibits “C”, “M” and “N” as well as the evidence of Mr John Risteski and Mr Ivan Risteski I find that the plaintiff has satisfactorily identified its goods stolen from the defendant’s custody. I find that it was the defendant’s systemic inaccuracy in its record-keeping practices which prevented it from verifying the extent of the plaintiff’s losses. Thus much was evident from one of the reasons for the dismissal of the defendant’s former storeman Mr Miholic. There was no dispute that the claimed goods so identified were reasonably valued as claimed by the plaintiff. The fact that the defendant was unable to verify the plaintiff’s losses by reference to its own records does not mean that I am precluded from accepting the evidence tendered on behalf of the plaintiff on this issue.

48. I find that the plaintiff has established that the loss of the described goods to the value of $111,460.80 was caused by breach of duty of care on the part of the defendant when those goods were stolen from the defendant’s premises on 2 April 2008.

Disposition

49. The plaintiff’s claim succeeds in bailment. There is no material difference concerning the claim in contract. Consequent upon my findings the plaintiff’s claim succeeds in the submitted amount owing, namely $111,460.80.

Orders

50. I make the following orders:-

(a) Verdict and judgment for the plaintiff in the sum of $111,460.80;
(b) The defendant is to pay the plaintiff’s costs;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days’ notice if further orders are required.