We want to use this week’s article to highlight a potential scam to our members, as well as to clarify what you may be liable for when a vehicle is temporarily in your possession.

In a recent case that we have been asked to advise on, the motor dealer had been asked to assess a vehicle for a part exchange value. However, this could just as easily have been a health check or an assessment for a repair quotation.

Upon check-in, the customer hands over the keys and asks if there is somewhere that they can sit down and wait whilst the appraisal is being carried out. The car is left on the forecourt of the garage and after the salesperson has carried out the appraisal and is returning to the main building, they notice that that there is somebody in the car. Whilst discussing the value with the customer they ask if they are being accompanied and if anyone else was with them. When it was clear that the person in the vehicle was an intruder, the customer responds, ‘There better not be because I have left £3500 in the glove box’. The intruder absconds and the alleged money in the glove box has disappeared.

On examination of the CCTV footage, it reveals that the alleged thief arrives a few seconds after the customer and parks his car in close proximity (but not on the motor dealers’ site). As soon as the salesperson leaves the customer’s car, the alleged thief goes directly to the car being valued; without any attempt to access other cars on the forecourt and goes directly to the glovebox.

The owner of the vehicle is now pursuing the motor dealer for the stolen money alleging that they are responsible as the vehicle was in their customer’s car park area at the time of sale.

So, are the garage responsible?

Bailment

The area of law we are looking at here is called Bailment. The law of Bailment governs rights of owners of property and the responsibilities of those who temporarily receive possession of the property of another.

Bailment arises when property is delivered by a person (“the bailor”) to another person (“the bailee”). The delivery of property into the possession of the bailee creates an express or implied promise on the part of the bailee to:

· return the goods; or

· deliver the goods to a person specified by the bailor,

In a bailment, a series of obligations arise on the part of the bailee to the bailor:

· to take care of the goods whilst they are in the bailee’s possession.

· It entitles the bailee to retain the property of the bailor, subject to payment for services; and

· The bailee is liable to the bailor for damage caused to the property while it remains in the bailee’s possession.

There is no requirement for payment for the obligations to exist. You can be a voluntary bailee, such as when you accept a customer’s vehicle for servicing and repair, or an involuntary bailee, such as when a vehicle is left with you by a recovery company or when a customer refuses to collect a vehicle upon demand.

The duty of care you are under will depend on whether you are a voluntary bailee or an involuntary bailee, as well as any terms and conditions that will apply.

In this case the motor dealer was a voluntary bailee as it had accepted possession of the vehicle to undertake the valuation. There is therefore a duty to take reasonable care of the vehicle and, if this is breached, the motor dealer would be liable for any loss.

However, this is not a strict liability for all losses that occur. Provided reasonable care is taken there would be no liability for acts of god, and the actions of others can be sufficient to pass liability onto them. For example, if a customer hit another customer’s car in a motor dealer’s carpark, assuming the motor dealer was not negligent, then the customer who hit the vehicle would be liable for the damage, not the motor dealer.

In this case, if the salesman locked the vehicle, then there would be no liability. However, if the salesman didn’t lock the vehicle, there is a possibility that the motor dealer would be liable for any losses, including the £3500 cash, if it ever existed.

In Conclusion

In this case there are some strong indications that this is a set-up and a number of facts that can be used to reduce the likelihood of liability. However members should be aware of the potential of this as a scam. We strongly advise that vehicles in your possession are locked and secured at all times, and consideration should be given to asking customers whether there are any valuables in their vehicle.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

 

Motor Industry Legal Services

Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.