The plaintiff brought a claim in the Melbourne Magistrates'
Court for the loss of his boat and trailer which were destroyed in
a fire at the defendant's workshop. The plaintiff had taken his
boat to the workshop to have a canopy and storm cover installed.
The defendant held no insurance cover for the loss.
The defendant, as a bailee of the boat and trailer, was required
to return them to the plaintiff at the end of the bailment. The
bailment relationship imposes a duty on the bailee to take
reasonable care of the bailor's (the plaintiff's) goods and
if they are damaged, the onus is on the bailee to prove they were
The plaintiff, who was self-represented, did not argue that the
defendant negligently allowed the boat and trailer to be damaged,
but rather that the defendant had failed to tell him that the boat
and trailer had been left at the defendant's workshop "at
his own risk". His position was that the defendant should have
told him that he was not covered by insurance.
The Magistrate agreed, and held that the defendant had a legal
duty to warn the plaintiff that the business had no insurance. In
so finding, he relied on a Canadian case in which there was found
to be a duty to warn of a lack of insurance, but only where the
damaged goods were of an 'unusually high value'. The
Magistrate considered that the plaintiff's boat and trailer met
The defendant appealed the decision. Justice Mukhtar of the
Court of Appeal stated that in specific cases in which insurance is
an aspect of the transaction, a duty to warn of no insurance for
goods of an "unusually high value" could be attracted. He
found, however, that there is no Australian authority which imposes
such a duty in an ordinary domestic dealing such as this, where
goods are left with a repairer. A duty to warn of no insurance
would impose a heavy burden and much uncertainty in everyday
business and commercial dealings.
The Court held that the Magistrate had erred in his findings,
and in applying the Canadian case which was potentially persuasive,
but not binding authority in Australia.
It was held that the defendant took reasonable care of the
plaintiff's goods, which were destroyed through no negligence
of the defendant. There was therefore no breach of bailment and
certainly no duty to warn of no insurance. The appeal was allowed
and the plaintiff's complaint dismissed.
All Covers and Accessories Pty Ltd v Sidawi
 VSC 48
This case highlights that in everyday business dealings, a
bailee for reward is under no duty to insure, to warn a customer of
any absence of insurance, or to act as an insurer of a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
This issue explores the main first party losses that businesses can suffer after a cyber-breach and how to address them.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).