Kuffuor v. Greyhound Date:, 2013 BCPC 341

Citation: Kuffuor v. Greyhound Date: 20131122 2013 BCPC 0341 File No: 12-41744 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KO KUFFUOR CLAIMANT AND: GREYHOUND COURIER EXPRESS LTD. DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP B. CORNISH Appearing in person: K. Kuffuor Appearing for the Defendant: B. Scott Place of Hearing: Vancouver , B.C.

Date of Hearing: October 23, 2013 Date of Judgment: November 22, 2013 [ 1 ] In this Action the Claimant, Mr. Kuffuor seeks damages in the amount of $4,351.00 primarily for goods which he alleges were lost or damaged by the Defendant, Greyhound Courier Express Ltd. (“Greyhound”). The damages are particularized as follows: - lost cufflinks $3,000.00; - all in one printer $200.00; - lost prescription medication $371.00; - broken computer speakers $200.00; - 3

section staff and dishes $80.00; and - lost time from work $500.00 Background [ 2 ] By way of background, this matter was first set for a Simplified Trial on January 23, 2013 and adjourned until February 20, 2013. On that date, the Claimant did not attend but I was advised that he had applied to have the matter heard by phone. Given the late notice, I simply made an order adjourning the Trial to the next available date, which was April 17, 2013 provided that I be seized of the matter.

On April 15th, 2013 the Claimant applied to have the Trial conducted by phone and Judge Burgess made an Order granting the Claimant permission to commence the Simplified Trial by phone but specifically providing that I retained discretion to decide if the whole proceedings were suitable for determination in that manner. [ 3 ] On April 17, 2013 the Claimant attended by phone and as he had done in the past, advised that he had a disability which made it extremely difficult for him to travel to Vancouver from his residence in Ottawa. He requested the matter proceed by phone .

At that time , representatives from Greyhound advised that they had no objection to the matter proceeding in the manner proposed by the Claimant. However, a number of issues arose and it appeared that both parties had documents and other information that was not included in their original Trial Statements. Accordingly, I ordered that both parties could file amended Trial Statements and that the evidence of any witnesses could be provided by way of written statements which were to be provided in the amended trial materials.

I also ordered that the Trial be adjourned pending the filing of these materials and that at the next trial date I would consider the new materials and discuss with the parties whether the matter could be heard by phone. [ 4 ] Amended Trial Statements were filed and the matter came on for trial on October 23, 2013. Both parties agreed that the matter could be heard by way of an Expedited Trial with the Claimant attending by phone and while, in my view the process was not ideal, I was of the view that it complied in all essential respects with the requirements of natural justice.

Accordingly, the matter proceeded with Greyhound representatives attending in person and the Claimant attending on the phone from Ottawa. The Claimant’s evidence [ 5 ] The Claimant’s evidence was that he was going to reside temporarily in Vancouver and so he called Greyhound in Ottawa to transport 24 boxes or items of his belongings.

He says he spoke to a Greyhound customer service representative ("CSR") over the telephone on August 29, 2012 and provided him with a “general list” of the items to be transported which included amongst other things a computer, a printer, an ottoman, an armoire, a bed, a night table and some dishes. He says that he repeatedly advised the CSR that his belongings were both fragile and valuable and meant a lot to him and that it was extremely important to him that they arrived safely in Vancouver.

He says that he was told that the items would be picked up at his residence and that the next day a “third party” arrived at his residence to transport the items. He was concerned, however, about the identity of the third party and called Greyhound to ensure that he was authorized to transport the items. In that conversation he says the CSR assured him that he could give the parcels to the fellow and that he would call him back after the boxes arrived at the Ottawa office.

Later the CSR confirmed that the items had been received and that he had seen the computer, printer, ottoman and dishes and that they had a detailed conversation about the fragility of the dishes. The Claimant says that he again stressed how important it was that the items arrive safely in Vancouver. [ 6 ] The Claimant arrived in Vancouver on August 31 and then he called Greyhound to advise them of the address for their delivery either that evening or shortly thereafter.

He heard nothing from Greyhound and in the next few days repeatedly called both the Greyhound offices in Ottawa and Vancouver to try and find out the status of his delivery. The Claimant says that during his conversations he was reprimanded and treated in a disrespectful manner by Greyhound representatives. [ 7 ] On September 6th the Claimant says that he received a phone call from Greyhound advising that they had located two of his boxes and that they were delivered to his house that day. The boxes contained some paperwork, a printer and some dishes that were

broken. [ 8 ] He says that the remainder of the boxes arrived on September 10th and that other belongings were also damaged. In particular, one bag looked like it had been “ripped open”. The Claimant noted that in addition to his dishes, his printer and computer speakers were also damaged. He also says that two pairs of gold cufflinks, some prescription medication and a three-section staff were missing. He immediately alerted Greyhound and told them of the loss and damage. He was told to complete a claim form and that form was attached to his Trial Statement.

In addition to listing the items alleged to be lost or missing in this Action, the form also asked for a list of the “items received in good order and their value”. The items listed were “main computer, $2,500, clothes and suits $9,000; ottoman $200.00”. At the top of the form it asks “did you declare excess valuation and purchase insurance”? A check mark was placed on the “no” box.

In response to the question “value declared” the handwritten response is somewhat difficult to decipher and appears to be either “$15,080.00” or “$15,000 . 00”. [ 9 ] In support of his claim, the Claimant provided an unsworn statement from a Mr. Anton Moffat, which provides: To Whom It May Concern: My name is Anton T. Moffatt. On September 10, 2012 I was visiting my friend Ko Kauffor at his residence, 1249 West 52 nd Avenue, Vancouver, BC V6P 1H7. A short time after my arrival I noticed a courier van out front. Ko mentioned to me that this must be his things that he had shipped via Greyhound.

As his things arrived, I couldn’t help but notice the condition of them. They looked like they were thrown around. The boxes were dented and one bag even had a massive tear in it. When we moved his things indoors, we could hear the sound of broken things. It turned out to be all of his dishes. Also, his printer was damaged beyond repair. And, on top of all of that, some items were misplaced as well. Ko couldn’t find a pair of cufflinks or his treasured three

section staff. The driver could clearly see the upset and disappointment look on Ko’s face. I too was shocked. The items arrived almost a week later than they should have. And when they did, they were badly damaged. He – the driver – apologized to Ko for the state of the boxes, basically stated that he was just the delivery guy and told Ko to follow up with head office. While I understand the nature of his job doing P & D, I feel his representation of your company was substandard. I myself am a long haul truck driver and have over 15 years in customer service.

I do hope this matter is paid close attention to and that it is reviewed. Because based on this incident, I don’t see myself using your service or recommending it. Signed, Anton T. Moffat [ 10 ] I note that Mr. Moffat’s evidence is that the Claimant’s dishes were delivered on September 10; however, this is inconsistent with the Claimant’s evidence that the dishes were delivered on September 6, 2012. At the trial the Claimant explained that he had placed the box with the dishes next to his front door when they arrived on September 6 and that they were still there when Mr.

Anton witnessed the remainder of the boxes arriving on September 10. [ 11 ] On cross examination the Claimant agreed that when he called Greyhound on August 29 th , he agreed that the CSR asked him his name and phone number; the time and address for pick up; if he would pay “up front or collect”; and how many items were to be transported. He also agreed that he was specifically advised that in the event of loss or damage the recoverable amount would be $100.00 per waybill and that he was asked if he wanted to purchase insurance which would cover losses up to $1,000.00 per waybill.

He was told that he could put a minimum of one, and a maximum of five items, per waybill. [ 12 ] The Claimant’s evidence was that he elected to put the maximum number of items per waybill and declined to pay extra for additional insurance because the value of his items would exceed that amount. On further questioning, he specifically agreed that he was offered but waived the option to purchase this additional insurance. When I asked him what he understood the insurance would have covered, he replied that he understood it would “guard against loss, negligence and damage”.

While the Claimant was clear that he knew he could have paid more to purchase insurance above the $100.00 recovery, he was adamant that Greyhound never advised him what “the penalty” for declining to do so would be.

He says that he made it clear to Greyhound that since the value of his items exceeded the insurance they were offering, if they were, in fact, lost or damaged, he would sue them. [ 13 ] In the weeks following the arrival of his belongings, the Claimant says that rather than simply compensating him for the loss and damage to his belongings, the Greyhound representatives were disrespectful and began what he felt was an unwarranted “investigation” of his claim. He also says that initially Greyhound was not going to refund the delivery costs but they eventually did.

They also took the position that there was a “limitation of liability” in their tariff and thus either offered him or sent him a cheque for $100.00. The Claimant’s evidence was that he knew nothing about any “limitation of liability” and that the term “meant nothing” to him.

He repeated that the amount of offered insurance would not have covered the value of his items and that on this basis he declined the $100.00 payment by Greyhound and added that even if they had sent him a cheque for $1,000.00 he would have declined that too. [ 14 ] The Claimant provided some photographs of what appeared to be a set of broken china and a damaged keyboard.

He also provided photographs of new items which he says were identical or close to the items he says were lost and photographs of some men’s cufflinks which he testified were originally his father’s and made of very pure gold and thus worth the $3,000.00 claimed or likely more.

No receipts were provided either for the purchase of the items claimed to be lost or damaged or any replacement of same. Finally, no documentary or oral evidence was provided in support of the claim for $500.00 for lost wages. Greyhound’s evidence [ 15 ] The evidence of the Greyhound representatives was that the Claimant called the Ottawa office and originally advised that there were only 14 items to be shipped.

He was told that up to 5 items could be placed on each waybill and that the recoverable amount in the event of loss or damage was $100.00 per waybill but that there was extra insurance available for purchase up to a maximum of $1,000.00 per waybill. The Claimant elected not to purchase any additional coverage and also wanted the maximum number of items on each waybill. Greyhound says that the CSR also explained the different levels of service and that the Claimant did not request an expedited delivery but rather elected the standard level of service. [ 16 ] The evidence of Mr.

Scott, one of the Greyhound representatives was that all of Greyhound’s shipping is done by bus and that although there are no guarantees, a “ball park” time for delivery from Ontario to Vancouver is usually 5-7 days. He conceded that the Claimant’s items were not delivered within that time frame. Mr. Scott says that despite a number of requests by Greyhound, the Claimant has never produced any receipts for the items he claims were lost or damaged and that the photographs supplied by the Claimant were all of new, undamaged items. [ 17 ] Mr.

Scott also testified that Greyhound’s Terms and Conditions of service were on their website together with other information such as shipping locations etc. He pointed out a variety of sections of the Terms and Conditions which he says would limit the Claimant’s recovery to the $100.00 offered. These Terms and Conditions were printed and attached to the Trial Statement and are discussed below. [ 18 ] The Claimant testified that prior to shipment he had not seen, and was not referred to, the Terms and Conditions referenced by Mr. Scott. [ 19 ] The evidence of another Greyhound representative, Mr.

Bellec was that he was the Claimant’s “point of contact” in Vancouver on September 6th when the first two boxes were located. Prior to that, a Greyhound representative in Dallas had already agreed to refund the Claimant’s shipping charges of $738.29. Mr. Bellec also testified that when he spoke to the Claimant he also agreed to have the boxes delivered to his house rather than him having to pick them up. The Claimant later advised him that there was damage to the dishes and to his computer printer and that everything else was likely damaged as well and that Mr.

Bellec should forward him a claim form in advance. [ 20 ] Because of his prior dealings with the Claimant, Mr. Bellec says that when the remainder of the Claimant’s items arrived on Monday September 10th he arranged for them to be sent to his office in Coquitlam. On their arrival he and one of the other managers personally took the items, which comprised of a number of bags and a box, off the bus. He did not see any large furniture items, such as an armoire, night table, or bed in the shipment. Mr.

Bellec says that he did not inspect the contents of any of the bags but that there was no obvious external signs or anything else which suggested any damage. The items were then delivered to the Claimant’s address. Submissions [ 21 ] After providing their evidence, both parties were provided with the opportunity to make submissions. [ 22 ] The Claimant submitted that when the issue of a limitation of liability was raised by Greyhound, he told them that prior to shipment he did not look at their website and was not told to do so.

Nor was he required to sign any document which included or even referenced the Terms and Conditions referred to by Mr. Scott. [ 23 ] The Claimant also took the position that there is a distinction between the usual terms and conditions of service offered by couriers and by moving companies and that since Greyhound knew they were moving his household effects, they were more comparable to a moving company than a courier.

He attached excerpts from the websites of various moving companies to his Trial Statement and submitted that none of them had the “catch 22” limitation of liability that Greyhound was relying on. [ 24 ] The Claimant also reiterated his position that he told Greyhound that his items were worth more than the basic amount or the extra insurance they were offering and that if there was loss or damage to these items they would end up in court. [ 25 ] Mr.

Scott, on behalf of Greyhound, submitted that it was made very clear to the Claimant that there was a limitation of liability such that in the event of loss or damage he would only have $100.00 per waybill unless he paid more to purchase additional insurance and that the Claimant specifically waived the option to purchase such extra coverage. He also submitted that the Claimant had provided no evidence to support the quantum of damages claimed and that the suggested cost of the various items and in particular, the cufflinks was entirely speculative.

He also pointed out that the Claimant had received a full refund of his delivery charges notwithstanding that most of the shipped items arrived intact and that he had declined Greyhound’s offer of $100.00 payment in accordance with the basic coverage explained to him. Finally, Mr. Scott submitted that Greyhound’s Terms and Conditions of shipment were consistent with industry standards for courier and small package shippers and that any suggested comparison to the standards applicable to furniture moving companies was inappropriate. Discussion

[26] Much of the focus of the trial revolved around Greyhound’s Terms and Conditions of service which were posted on their website. The Claimant says that prior to the shipment he never saw this document and thus should not be bound by it. There may be somemerit to this position. As a general rule, a limitation of liability ought to be specifically brought to the attention of the person who wouldthereafter be bound by it.

As such, to the extent that Greyhound relies on those portions of its Terms and Conditions which, for example,prohibit the shipment of jewellery or other items, I agree with the Claimant that he should not be bound by restrictions he was not awareof. [27] The same analysis, however, does not apply to those portions of the Terms and Conditions which provides that Greyhound’sliability is limited to $100.00 per waybill unless a greater value is declared, in which case the cost of shipment increases andGreyhound’s liability also increases up to a maximum of $1,000.00.

The Claimant’s evidence on this point was unequivocal. He agreedthat he was specifically advised of the $100.00 limitation and the option to pay more for up to $1,000.00 of coverage. He also agreedthat he fully understood that the extra coverage was to guard against negligence, loss or damage. With that knowledge, he had a choiceand could have shipped his goods with another company. He chose not to do so and in my view, thereby accepted the $100.00 limitationthat was plainly explained to him.

In short, the very risk that the extra coverage was offered to protect against and which the Claimant,declined, in fact materialized. [28] The Claimant says that he should not, however, be limited to a $100.00 recovery because he told Greyhound that while hedeclined to purchase insurance to guard against loss or damage, if that, in fact occurred, he would “end up here” - by which I infer hemeant that he would nevertheless commence an action to recover the full value of his goods. While that may have been what theClaimant stated, a bald assertion of entitlement is not sufficient.

The Claimant is still required to establish his entitlement to recover thefull value of the goods both on the facts and the law. [29] In law, his Action could be framed either in contract or tort. The law of tort recognizes that circumstances may negate or limitthe duty of care. Waivers and limitation of liability clauses, whether contractual or not, have been accepted by the courts as having thiseffect on the duty in tort. In London Drugs v.

Kuehn and Nagle (SCC), [1992] 3 S.C.R. 299 there was a limitation ofliability clause in a storage contract between London Drugs and Kuehn and Nagle limiting the liability of Kuehn and Nagle, thewarehouse company, on any one package to $40. With full knowledge of this, London Drugs chose not to obtain additional insurancefrom the warehouse company. When the employees of the warehouse company tried to move London Drug’s transformer, it wasdamaged.

The Supreme Court of Canada concluded that the warehouse company employees owed a duty of care to London Drugs toexercise reasonable care in the handling of the transformer but that the duty of care was limited by the limitation of liability clause in thestorage contract. As a result, the warehouse company’s liability was limited to $40.

This reasoning applies to this case. [30] On either contract or tort analysis, the fact that Greyhound specifically advised the Claimant that shipment of his goods wassubject to the proviso that if in the event of loss or damage they would only pay $100.00 (or more if purchased) and that the Claimantagreed to shipment on that basis, limits recovery to that amount.

Further, after reviewing the evidence and listening to the parties’submissions, I am not persuaded that the distinction, if any, between courier companies and moving companies is of any relevance to thiscase. [31] In any civil case, a litigant is required to prove his or her case on the balance of probabilities and that proof extends to not onlythe fact of loss or damage, but also to the quantum of losses.

In this case, even if the Claimant could establish a legal basis on which toclaim the full amount of his goods, there is, in my view, simply no reliable evidence on which I can determine the value of those goods. As noted, no receipts or other evidence of either original or replacement values were provided to support the claims made. [32] In the end result, I conclude that the Claimant has failed to establish either a legal or factual foundation for the claims advancedand as such, the claim is dismissed. In the circumstances there will be no Order for costs. ___________________________ Barbara Cornish Adjudicator