Decision concerning compensation sought by student after provider wrongly disposed of the student’s personal property

Wednesday, November 22, 2017
S V P  [2017]  ISC November 2017

Summary of Complaint

  1. The Student is enrolled in [a Masters Course] and is currently in his final year.
  2. The Student stored personal property in lockers that were  allocated to him by the Provider during the 2016 Academic Year. The Student’s name and years of study were clearly labled on the locker.
  3. On 5 March 2017 when the Student returned to commence the 2017 Academic Year, he discovered that his personal items had been removed from his locker.
  4. The Provider subsequently confirmed that they had been responsible for removing the Student’s property and that the items, with the exception of a keyboard, had been disposed of and could therefore not be returned to the Student.
  5. The Student is of the opinion that the Provider was not entittled to dipose of his property in this way and is seeking damages amounting to the value of the property lost as well as a formal apology from the Provider. The Student raised a formal complaint with the Provider on 8 March 2017.
  6. The Provider’s position is that they were justified in removing the Student’s personal items from the locker and that they are not liable for any damages which the Student may have suffered as a result.
  7. On this basis the Student raised a complaint with the International Student Contract Dispute Resolution Scheme on 6 September, 2017.

Background

  1. Students were notified towards the end of Semester 2, 2016 by means of a public notice placed on the door of the [study area] as follows:

“REMOVAL OF WORK

It is important that you remove all personal effects no later than 4pm Friday 11 November.

No responsibility will be taken for anything lost or stolen after this date.”

  1. However, in his email dated 6 March 2017 the Student stated that he was unaware that he was required to empty his locker at the end of the academic year and that the Provider did not make him aware of this, “by any communication, email or otherwise”.
  2. At the end of the second semester the Student failed to remove his personal items from his locker.
  3. Further, as is stated in his email dated 6 March 2017, the Student was not enrolled in any courses over the summer period.
  4. On Sunday, 5 March 2017, prior to the commencement of Semester 1 of the 2017 Academic Year, the Student enterred [the study area] and discovered that his locked locker had been opened and the contents removed.
  5. The Student then contacted the Facillities Coordinator by phone who informed him that the locker had been opened by the Provider and that the contents of the locker could not be returned to him.
  6. The Student reported the incident to the Head of the School by email on 5 March 2017.
  7. In an email dated 6 March 2017, the Head of the School advised the Student that those students who had permission to be in the study area during the summer period were further advised that all work and personal effects were to be removed from the building by 20 February.
  8. The Student received an email dated 6 March 2017 advising him that his keyboardhad been retrieved from storage and was available for him to collect.
  9. The Student then raised a formal complaint regarding the opening and removal of items from his locker in an email dated 8 March 2017.
  10. The Student also raised concerns relating to his treatment by employees of the Provider relating to this incident, as well as a prior incident which he believed to be relevent to this. However, such matters relate to the policy and procedures of the Provider, and in the case of the prior incident, an occurance which is not the subject matter of this complaint, and are therefore outside of the jurisdiction of International Student Contract Dispute Scheme.
  11. However, one factor which is relevent to the context of this incident is the submission by the Student that of all the lockers in the study area, his was the only locker which was opened and which had the contents removed and disposed of. The Provider has confirmed in an email dated 9 March 2016 that while “some lockers were overlooked for clearance”, that this was due to an “operational oversight” and was in no way as a result of the Student being “singled out for separate treatment”.
  12. In the above email, the Student sought the following remedies:
  1. An apology from [name] for the damage done as a result of the opening and removal of the items from the locker.
  2. Appologies from [names] for the impact which this incident had on the Student.
  3. Compensation of $125.00, being the the value of his lost property [various personal items] which had sentimental value for the Student.
  1. In a later email to International Student Contract Dispute Scheme dated 12 September 2017 the Student advised that the locker contained [various items] with a combined value of $500.00. Further, the Student explained that the reason for the discrepency regarding the contents of the locker was because the Student only became aware that two particular items were missing 2 months after the incident.
  2. [The Provider contact] responded to the Student by email on the 9 March 2017 and advised that the Student’s complaint would not be upheld on the basis that all students were advised to remove all items from their lockers by public notice and that as the Student’s loss was as result of his failure to do so, the Provider is not liable for any loss which he has suffered as a result.
  3. The Student discussed this matter by email with the [senior Provider contact] in an email dated 16 August 2017.
  4. The Student was then directed to appeal the decision and in an email dated 1 September 2017, the Student requested a review of the decision.
  5. [Provider contact] confirmed by email dated 6 September 2017 that the issue raised by the Student did not fall into the category of “academic complaints or disputes” and that as it was an operational matter and had already been dealt with. He further confirmed that there was no further review process provided for within the Provider’s processes.
  6. The Student is dissatisfied with the Provider’s response and on conclusion of the Provider’s Internal Complaints Process, has elected to raise a complaint with International Student Contract Dispute Scheme.

Student’s Position

  1. The Student states in their submission dated 7 September 2017:
  1. That the Provider, by removing his personal property from his locker and disposing of it, has breached their duty of care owed to to the Student in respect of the property belonging to the Student which was in the Provider’s care.
  2. That the Provider, by removing the property from the Student’s locker, has trespassed on private property.
  3. That the Provider has attempted to ‘retroactively sanction’ their actions by referring to a public notice which was placed in the study area and requiring students to remove work and personal belongings by 11 November 2016 in that this incident occurred in excess of 100 days of this date.
  4. That the public notice was misleading as it did not contain any official insignia of the Provider.
  1. In his final submission dated 25 October 2017 the Student advised as follows:
  1. That the Provider only placed a single notice advising students to remove their work and personal items.
  2. That this notice was only displayed from 1 November 2017 to 11 November 2016 during exam time with the effect that many students were not regularly in the vicinity and would only have seen it in passing.
  3. That as the notice did not specifically refer to removal of personal items from lockers, it could result in confusion.
  4. That the notice did not inform students that the Provider intended to dispose of items in lockers.
  5. That the Provider did not contact the Student to advise him that items had been removed from his locker nor did they give him the opportunity to collect these before disposing of them, bar the keyboard.
  1. Further final submissions from the Student refer to matters of policy and procedures of the Provider both before and after this incidentare outside of the jurisdiction of International Student Contract Dispute Scheme.
  2. The Student’s position is that the Provider has breached the duty of care owed to him and that as a result of this breach is liable to pay to the Student compensation for his loss of property, which amounts to $500.00.

Provider’s Position

  1. The Provider was advised of the complaint raised by the Student with the International Student Contract Dispute Scheme on 15 September 2017.
  2. The Provider responded on the 28 September 2017 and advised that their position was as per the appeal decision and that no further action would be taken by them.
  3. The Provider also made reference to the discrepency in the amount being claimed by the Student as the Student’s initial claim was for damages in the amount of $125.00 and not the $500.00 which is presently being claimed.
  4. The above was confirmed in the Provider’s response to the Request for Further Submissions dated 18 October 2017.

Discussion

  1. There are four questions which the International Student Contract Dispute Resolution Scheme must determine:
  1. Did the Provider owe the Student a duty of care in respect of the property belonging to the Student in his locker?
  2. Did the Provider, by removing the property belonging to the Student and disposing of it, breach that duty of care?
  3. If so, is the Provider liable to compensate the Student for his loss ?
  4. Has the Student established the value of the his lost goods?
  1. In order to determine the above, consideration must be given to the relevant common law and case law relating to Bailment.
  2. A Bailment arises when one party, the bailee, voluntarily accepts possession of goods belonging to another, the bailor. As such, the key consideration when deciding if a bailment has arisen is this separation of ownership and possession in that each rests with two different parties.
  3. The bailee also undertakes to return the goods to the bailor when requested to do so.[1]
  4. On this basis, I find that the Provider, by allowing the Student to store his personal goods in a locker belonging to the Provider and on the Provider’s property, has resulted in a relationship based on Bailment arising between them.
  5. Bailment can arise from a variety of legal relationships and is not dependant on contract. Such is the case of a gratuitous bailment where the bailor deposits goods with the bailee who agrees to keep the goods for no reward. The effect of this is that damages are assessed on the basis of tort (negligence) and not breach of contract.[2]
  6. Further, as neither party submitted evidence of any contractual terms which would determine the conditions of use regarding lockers in the study area and the respective rights and obligations of the parties, I requested information from the Provider regarding the basis on which students were given use of the lockers. The Provider’s response was that the lockers were made available for students to use during the academic year (March to November) and that this was done on a “self selection” basis by students. Without any further information I am therefore of the opinion that the bailment which existed between the parties was gratuitous and that the normal common law relating to bailment applies to this matter.
  7. By taking possession of the goods, there is an assumption of responsibility for the safekeeping of the goods on the part of the bailee. The bailee therefore has a duty at common law to take reasonable care of the bailor’s goods  and not to convert them (interfere with the use and possession of a chattel of another, wilfully and without lawful justification).[3]
  8. In order for a bailor to make a successful claim for negligence, it must be shown that the bailee has breached the standard of care required. Modern case law requires the bailee to take reasonable care as is determined by the circumstances of the particular case.[4]
  9. In addition, if the bailed goods are lost or destroyed while they are in the bailee’s possession, the onus rests on the bailee to establish that the loss or destruction took place despite the bailee having exercised all reasonable care and was not due to the fault of the bailee.[5]
  10. A bailee may limit or exclude his liability for negligence through an exclusion of liabilty clause. However, the wording of such a clause must be clear and unambiguous and must specifically exclude liability for negligence. [6]
  11. Such exclusion of liability can be given by notice. However, an essential factor relating to such a notice is whether, on the facts of the case,  that the party giving notice took sufficient steps to ensure the notice was brought to the attention of the other party.
  12. By applying the above to this matter, it is clear that the goods were destroyed and the Provider was unable to return them to the Student when the latter made this request. As such, the onus rests on the Provider to prove that the loss occurred despite the Provider exercising reasonable care should they wish to avoid a claim for damages based on negligence. However, a determination of this or an alternative basis for liability is not necessary should the Provider’s exclusion notice be sufficient.
  13. In order to determine this, consideration should first be given to the wording of the notice. As stated in [8] the Provider clearly stated that all personal effects were to be removed and the date by which this was to be done. The provider also clearly advised students that they would accept no responsibility for these goods after this date. On this basis I find that the notice was clear and unambiguous and that the Provider intended to exclude liability, including liability for negligence, after this date in respect of goods in Building 421 belonging to students.
  14. The second factor for consideration is whether the Student received sufficient notice from the Provider. The Student has stated that he was not made aware of the requirement to remove his personal property from the study area. The implication of this is that he was unaware of the notice.
  15. The Student also stated in [26.b] that the notice was only displayed from 1 November 2017 to 11 November 2016 during a time when many students would have been absent from the building and this raises further questions regarding the reasonableness of the notice.
  16. The Provider has also stated in their email dated 9 March 2017 that a single notice was placed on the door to the study area.
  17. No further submissions have been made by the Provider outlining any other steps taken by them to inform students of the need to remove their work from the study area.
  18. Based on the above I am not entirely convinced that sufficient notice was given to the Student and that the exclusion notice is effective in excluding the Provider’s liability.
  19. The Provider has also not made any submissions around the reasonableness of their decision to dispose of the Student’s goods immediately rather than notifying him that they were available for collection and giving him an opportunity to do so. Further information regarding this would be useful when making a determination of reasonableness.
  20. Should it be found that sufficient notice was not given and that the Provider did not act reasonably and is therefore liable for the Student’s loss, the Student will need to eastablish the contents of the locker and the value of these goods at the time they were removed and disposed of by the Provider. [7]
  21. The Student in [20]  initially claimed damages in the amount of $125.00, being the value of the goods contained in the locker. The Student later increased this to $500.00 in [21].
  22. The Student has provided evidence of the replacement cost [one named item] as $20.23.
  23. The Student’s mother, [name], in an emailed dated 17 October 2017, confirmed that she puchased [two named items] which cost $200.00 each when purchased in 2015 for the Student.
  24. As stated in [55], should the Student have a claim for damages, he will only be able to claim the value of these goods at the time they were disposed of by the Provider and not the their value at the time of purchase.
  25. The Student has not provided any further evidence relating to the value of the goods contained in his locker.
  26. As such, the Student has not provided International Student Contract Dispute Scheme with sufficient evidence to show the value of the goods at the time the loss occurred and has therefore not proved his claim for damages, apart from the $20.23 in [57] above.
  27. The Provider has raised questions regarding this as a result of the Student changing his original claim on the basis that he was not aware until 2 months after the incident that the locker had also contained [the two named items].

Proposed Decison

  1. The International Student Contract Dispute Scheme’s recommendation is that the Provider and the Student meet with each other with a view to discussing the issues which have arisen between them in order to find a resolution.
  2. Both parties are also able to provide further submissions in order to clarify their positions as outlined in the proposed decision before a final decision from the International Student Contract Dispute Scheme is issued.

Final Decision

  1. Following the proposed decision, the Student provided further receipts for the items in [58] in support of his claim.
  2. The Provider also responded and in their email dated 21 November 2017 confirmed that they did not believe that further dialogue with the Student as recommended in the proposed decision would facilitate resolution in this matter. No further submissions were made by the Provider.
  3. On this basis I confirm my findings as follows:
  1. That a duty of care was owed by the Provider in respect of the Student’s goods contained in his locker.
  2. That the Provider has breached their duty of care in that they did not give sufficient notice to the Student to remove his personal property from [the study area]. Further, that the Provider did not act reasonably in disposing of the Student’s goods immediately after removing them from the locker and without any further notification to the Student.
  3. That the Provider is liable for the Student’s loss.
  4. That the Student, with the exception of the replacement cost of [one named item] has not proved his loss as he has failed to establish the value of the [two named items] at the time that the loss occurred. Further factors to consider here are that the Student was not aware that these items could have been in his locker until 2 months after the incident and that the items were puchased a considerable time before the incident, approximately three years and seven months in the case of [item one] and around 18 months in the case of [item two], with the effect that any value would have been considerably depreciated.
  1. The final decision of the International Dispute Resolution Scheme is that the Student’s complaint is upheld and an award of $20.23 is granted.

 

Dated: 22 November 2017

Samantha de Coning
Resolution Practitioner
International Student Contract Dispute Resolution Scheme


[1] Southland Hospital Board v Perkins Estate [1986] 1 NZLR 373 at 377

[2] National Bank of New Zealand v Waitaki International Processing (NI) Ltd [1997] 1 NZLR 724 at 726

[3] Southland Hospital Board v Perkins Estate [1986] 1 NZLR 373 at 376 and 377

[4] Southland Hospital Board v Perkins Estate [1986] 1 NZLR 373 at 377

[5] Southland Hospital Board v Perkins Estate [1986] 1 NZLR 373 at 379

[6] Producer Meats (North Island) Ltd v Thomas Borthwick and Sons (Australia) Ltd [1964] NZLR 700 (CA) at 703

[7] Trailways Transport Ltd v Thomas [1996] 2 NZLR 443 at 446