Stewart v. Gustafson (1998)

Canadian Property Law

Stewart v Gustafson
Image: ‘Old Farm Truck’ by Rick Mock

Conversion of seemingly abandoned property is not without the law, however there are inherent differences as to how best to remove or despatch such property, while considering the enduring proprietary rights of the original owners. In a matter concerning a number of goods of varying value, the claimants sought damages for loss, when after giving ample notice for their removal, the recent freehold purchasers took steps to enforce their rights to enjoyment of the land now owned.

Under a conveyance dated May 2 1994, the respondents purchased land from the claimant’s mother, on condition that time be given for the removal of specific items owned by her son and daughter-in law. With an express threshold of July 31 1994 for all items outstanding, the claimants removed a portion of the items listed, after which no attempts were made to recover the remainder.

Noted within the conveyance was express mention that:

“Any items remaining after deadline shall be considered abandoned and can be disposed of in discretion by the purchaser who will exercise prudent discretion.”

And so upon expiration of the agreed threshold, the respondents proceeded to both remove and where possible, sell the items either privately for profit, or by way of scrap, with the remaining few items kept under secure storage.

At the point of litigation, the claimants argued that unless stated, the items both sold and left in situ, were still under ownership, and that no acquirement of title has succeeded, despite no attempts to remove them beyond the period stated. With reference to the principle of abandonment, the court observed the academic position adopted in ‘The Abandonment and Recaption of Chattels’ (1994) by Lee Aitkin, in which it reads:

“The act of abandonment, in Pollock’s terms, confers a revocable licence which is only terminated when a subsequent possessor manifests dominion over the chattel with the intention of possessing it to the exclusion of others, including the former possessor.”

However in ‘Is Divesting Abandonment Possible at Common Law’ (1984) by A.H. Hudson, it was argued that abandonment through intention was sufficient enough to warrant acquisition by those taking new ownership, (otherwise known as ‘divesting abandonment’) which in effect, created further confusion as to how best to ascertain when property has been lawfully abandoned.

In Canada (Attorney General) v. Brock, the Canadian Supreme Court had earlier turned to American jurisprudence when adhering that once relinquished of title, such property remains abandoned until appropriated by those intending to take ownership, while ‘Black’s Law Dictionary’ (1979) clarified how:

“Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.”

With particular regard to the case in hand, McCutcheon v. Lightfoot had enabled the Supreme Court of Canada to rule how:

“[A]bandonment of a chattel may be inferred in circumstances where an owner fails to remove his or her chattels within a reasonable time after receiving notice from the proprietor demanding their removal. In such circumstances, the destruction, consumption or sale of the chattels would not constitute a conversion thereof.”

While in Addison on Torts (7th Edn), it was equally argued that:

“A man cannot be made a bailee of goods against his will; and, therefore, if things are left at his house, or upon his land, without any consent or agreement on his part to take charge of them, he is not thereby made a bailee of them.”

Thus with close examination of the rights afforded both parties, the court held that the items retained and sold or disposed of, were subject to five distinct groups, within which three were estopped from right of claim, damages for conversion were awarded at $300 for the item sold privately and the final group remained abandoned unless agreed otherwise.

R v Stephenson (1979)

English Criminal Law

R v Stephenson
‘The Hay Bales’ by Roger Bansemer

Subjective ‘recklessness’ and the complexities of mental illness, are given equal weight when a charge of arson is levelled against a man who while apologetic for his actions, was astute enough to undertake, and become convicted of burglary, an act which in itself paradoxically requires a degree of foreseeability.

In the winter of 1977, the appellant trespassed upon farmland before climbing into a large straw stack to fall asleep. Suffering from the cold, the appellant decided to use the straw to build a small fire from which to keep warm. Unfortunately the fire quickly spread, before catching light to a Nissen hut containing farming equipment, resulting in damages of around £3,500.

Having fled the scene, he was later arrested, whereupon he immediately apologised and explained that the whole incident was an accident, and that he never intended to cause such destruction. When indicted, he was charged with burglary under s.9(1) of the Theft Act 1968 and arson under s.1(1)(3) of the Criminal Damage Act 1971, yet at trial, the appellant failed to give any evidence aside from the medical testimony of a consultant psychiatrist, who confirmed that the appellant was suffering form schizophrenia, and as such, was unable to appreciate the obvious risks attached to starting a fire in such a hazardous environment.

When directing the jury, the judge used the phrase:

“[A] man is reckless if he realises that there is a risk, but nevertheless presses on regardless.”

While reiterating the words of the Appeal Court in an earlier case, which were:

“A man is reckless in the sense required (that is to say, in the sense which leads to conviction) when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act.”

At which point the jury returned a guilty verdict on both counts, whereupon the appellant took issue in the Court of Appeal on grounds of severe misdirection when applying the subjective principle of recklessness. Here, the definition of recklessness in R v Briggs was held as being that:

“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.”

While in the Law Commission Working Paper No.31 (Codification of the Criminal Law: General Principles. The Mental Element in Crime) it was explained how:

“A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”

Perhaps more importantly, the root definition of recklessness was outlined by Donovan J in R v Bates, when he said:

“The ordinary meaning of the word ‘reckless’ in the English language is ‘careless,’ ‘heedless,’ ‘inattentive to duty.’ Literally, of course, it means ‘without reck.’ ‘Reck’ is simply an old English word, now, perhaps, obsolete, meaning ‘heed,’ ‘concern,’ or ‘care.’”

Contrastingly, in Shawinigan Ltd v Vokins & Co Ltd the objective purpose of recklessness was defined by Megaw J who said:

“In my view, ‘reckless’ means grossly careless. Recklessness is gross carelessness – the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as ‘reckless.’”

Yet in the House of Lords, Salmon J had recently promoted the subjective definition in Herrington v British Railways Board when he explained how:

“Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation.”

And so it was with full consideration of the effects and medico-legal opinion of schizophrenia, coupled with the perhaps ironically unstable history behind ‘recklessness’, that the Court found the arson conviction unsafe when knowing the jury were unable to wholly determine the mental limitations of the appellant. It was therefore on that basis that the burglary charge remained valid, while the arson charge was quashed on principles of natural justice.