Christine said:

 

“The Winkfield makes it clear that the reason the bailee can sue is that the bailee has to account for any sums recovered to the bailor. “

 

I do not agree.  Collins MR (with whom the other judges just concur) says ([1902] P 42, 54-55)

 

“It seems to me that the position, that possession is good against a wrongdoer and that the latter cannot set up the jus tertii unless he claims under it, is well established in our law, and really concludes this case against the respondents. As I shall shew presently, a long series of authorities establishes this in actions of trover and trespass at the suit of a possessor. And the principle being the same, it follows that he can equally recover the whole value of the goods in an action on the case for their loss through the tortious conduct of the defendant. I think it involves this also, that the wrongdoer who is not defending under the title of the bailor is quite unconcerned with what the rights are between the bailor and bailee, and must treat the possessor as the owner of the goods for all purposes quite irrespective of the rights and obligations as between him and the bailor.”

 

The reason they can sue is that they have title to the goods. They have such title from their possession. The extent to which they are worse off, or whether they have to account to the bailor or not, is irrelevant.

 

I do however agree that it looks surprising that the hire company in Armstead is in a better position suing in the name of the bailee than in their own. If they’d sued based upon their own title to the goods, they’d have to prove the use value of the car while it is being repaired, which, as Mark says, for which purpose the contract with the hirer putting a figure on that would be, at best, of evidential value.

 

I do not, however, agree with Mark that where the bailee sues that that contract rate is still of merely evidential value. Here the bailee is not suing for the lost use of the car: they have no lost use at all. They used it up until the end of the rental period. The bailee is suing for their consequential loss in having to account to the bailor for the sum set for the lost use the bailor has during repairs after the end of the hire period.

 

There can, of course, be no question whatsoever of double recovery in this case, as the only damages the hirer/bailee is claiming is the sum that she has to pay to the hire company/bailor.

 

Rob