031-NLR-NLR-V-72-A.-D.-J.-GOONERATNE-Appellant-and-J.-A.-WIMALAWATHIE-Respondent.pdf
134
Gooneratne v. Wimalaicathic
Present; Alles, J., and Pandita-Gunawardene, J.
. A. D. J. GOONERATNE, Appellant, and J. A. WIMALAWATHIERespondent .S.G. 494165 (F)—D. C. Panadura, S409)LD
Delict—Damage caused by dangerous tree—Liability oj the owner of the tree.
A treo which stood on the defendant’s land fell across the roof of th*plaintiffs house and caused damage to it. Although the tree did not overhangthe plaintiff’s land or the house, the defendant was aware of the dangerou.-condition of the tree.
Field, that the defendant was guilty of neligcnce and liable to pay damages.
.AjPPEAL. from a judgment of the District Court, Panadura.
II. n Jayctcardene, Q.C., with L. IT. Alhulathmudali .and G. S
Santaraweera, for the defendant-appellant.
G. P. J. Kurukuktsuriya, for the plaintiff-respondent.
Cur. add. dull.
1 {1964) 69 A'. L. 11. 335.
ALLES, J.—Gooitcralne v. Witnalaualhiel3r*
June 1,1909. Alles, J.—
The plaintiff instituted this action against his neighbouring landownerto recover damages sustained in consequence of an arocanut tree whichadmittedly stood on tho defendant’s land falling across the concreteroof of the plaintiff’s houso resulting in some cracks being caused to theroof.
Tho house was built in 1957 but was not in occupation and tho colourwashing and plastering had not been completed when the tree fell on theroof on Cth August, 19G2. On 2Gth November, 1059, tho plaintiff by P2wrote to the Government Agent that there wore three very old arocanuttrees and two coconut trees which seriously endangered tho safety ofher house and staking tho intervention of the authorities to have themcut. It was however not possible to arrive at an amicable arrangementwith the defendant to have these trees cut. In spito of somo confusionin rcgaid to the identity of tho tree which fell on the plaintiff’s house,the learned District Judge has accepted the evidence of the plaintiffthat the tree that crashed on the house was ono of tho arocanut treesreferred to in P2. The defendant was therefore aware of tho dangerouscondition of the treo from 1959. Tho ovidonco of the plaintiff was thatthe tree was standing 14 feet away from the house and slanting towardsthe house. It was however not overhanging tho plaintiff’s land ortho house.
Although tho treo did not overhang tho plaintiff’s houso, I think theprinciples laid down in Jinasena v. Eng ell in a 1 are applicable to thecase of a tree which causes damage to the property of a neighbouringlandowner, provided tho owner of the treo is aware of thodangeious condition of the tree. Thus in Darlis Appu v. David Sivgho2tho defendant who took no steps to prevent a coconut treo, which tohis knowledge, was a potential sourco of danger, from falling on hisneighbour’s houso was held to bo guilty of negligence. Jn similarcircumstances in Podikamy v. Jayaratne3 Soertsz A.C.J. heldthat in respect of a dangerous treo (it was not clear on theovidoncc that the treo was overhanging tho plaintiff’s land orhouso) “apart for tho principle involved in the maxim sic ulere tuo ulalieniitn non lac.das there devolved on tho defendant a duty to takocaro at least from tho time his attention was drawl to tho dangerousnature' of tho tree ”.
Wo are therefore satisfied in the circumstances of this case that thodefendant was liable for the damage caused to tho concrete roof of thoplaintiff’s house.
Thorc only remains tho question of the quantum of damages to whichthe plaintiff would be entitled. The plaintiff originally claimed Rs. 3,000as damages, then asked for Rs. 1,577*77 in her letter of demand and
1 (1919) 21 N. L. R. 445.* (194S) 50 N. L. R. 241.
* U9J6).47 N. L. R. 484.
136
Arumurjasamy Iyer v. Mutlucumaroo Iyer
finally Avas awarded Rs. 1,000 which was the sum sho claimed in hor plaint.Her export Philipiah, a Chartered Civil Engineer, described the cracks ontho roof as lines with no approciablo width. Tho width ho said was onlya pinpoint. Of tho three cracks only ono had go no through tho ontiro•width. The-learned District Jitdgo has remarked that “Philipiah hasnot givon ovidonco which wo expect from an expert though there is noreason to doubt his bona tides ”. Tho defendant’s export Aliangama Avasa liccnsod Surveyor and ostimatod tho damage at only Rs. 50 bocauso inhis viow it Avas unnecessary to remove tho ontiro roof. The only roasonAvhich tho Judgo gives for ilot accepting Ahangama’s estimate is bocausoho Avas not an export on buildings. We think howover ha'ing regardto tho damago caused a reasonable estimate would bo Rs. 250. Wothoroforo enter judgment and decree in favour of the plaintiff in a sumof Rs. 250. It Avas plaintiff’s exaggerated claim that necessitated thisaction boing instituted in tho District Court and in the circumstances avodirect that each party should bear their own costs. We do not proposeto interfere Avith that part of the Judgo’s order in u'hich ho had directedthat tho defendant should cut down an arocanut tree and two coconuttrees Avhich o'orhang the plaintiff’s houso as the defendant has agrood tohave theso trees cut.
Pandita-Gunaavardane, J.—I agree.
Decree varied.