117-NLR-NLR-V-40-AKBAR-v.-LEORIS-APPUHAMY.pdf
SOERTSZ J.—Akbar v. Leoris Appuhamy.
437
1939Present: Soertsz J.
AKBAR v. LEORIS APPUHAMY.
17—M. M. C. Colombo, 20,583.
Nuisance—Throwing rubbish into the public road—Master’s liability for actsof his servant—Ordinance No. 15 of 1852, s. 1 (12) (Vol. IV., Ch. 180,p. 443).
The accused, who carried on business at Filth Cross street, Pettah,was charged under section 1 (12) ol Ordinance No. 15 o£ 1862 with havingthrown or put or permitting his servants to throw or put onion peelings,paper, and dust on the public road from the premises. The accusedpleaded that he was not present at the time, that he had provideddustbins and instructed his servants not to throw rubbish on to theroad.
Held, that the accused was liable as occupier of the premises.
The master must be held to have permitted the servants to do whatthey did although they acted contrary to his instructions and in hisabsence, because the master ought at his peril to have seen his prohibi-tion obeyed.
PPEAL from a conviction by the Municipal Magistrate of Colombo.
M. T. de S. Amerasekere (with him H. A. Koattegoda), for accused, appel-lant.
L. A. Rajapakse (with him Jayamanne), for complainant, respondent.
Cur. adv. vult.
April 5, 1939. Soertsz J.—x
The accused-appellant carries on business on the premises bearingassessment No. 153, Fifth Cross street, Colombo.
It has been proved that on the night of September 8, 1938, half a hand-cart load of onion peelings, paper, and dust was swept on to or thrownon the public road from these premises.
The accused was not present on the premises at the time. He sayshe has provided dustbins for all such rubbish to be deposited in forremoval by the Municipal scavengers, and that he has instructed hisservants to make use of those dustbins, and not to throw rubbish on theroad. I accept the evidence.
The question, then, is whether the accused was rightly convicted.There are occasions on which, in the view of the law, a man may be saidto permit a thing to be done although he is not present at the time it isdone, and has given definite instructions to his servants not to do it.This case, in my opinion, is an instance of one of those occasions. InMousell Bros. v. London & N. W. Railway 1 Atkin J. said, “ I think thatthe authorities …. make it plain that while prima facie a principalis not to be criminally responsible for the acts' of his servants, yet the
i {1917) 2 K. B. 836.
438
SOERTSZ J.—Akban v. Leoris Appuhamy.
Legislature may prohibit an act or enforce a duty in such words as tomake the prohibition or the duty absolute; in which case the principal isliable if the act is in fact done by his servants
Now, one of the cases, in which the principle of non-liability of aprincipal'for the criminal acts of his servants is departed from in legisla-tion, is in the case of acts amounting to public nuisances. There isjustification for a stringent view of the master’s responsibility in suchcases for the criminal acts (criminal in the sense that they are malaprohibita) of his servant, because the master by the very fact of setting aservant upon work that may result in a nuisance, has induced a state ofthings which he ought, at his peril, to prevent. If he had given instruc-tions to prevent it, he ought, at his peril, to have seen his prohibitionobeyed.
1 In the present case, the charge is laid under Ordinance No. 15 of 1862,which was enacted “for the better preservation of Public Health and thesuppression of Nuisances ”. The section under which the accused wascharged namely section 1 (12) makes the occupier of premises liableif he or his servants throws or throw rubbish on any street or road. Therelevant words are “ whosoever shall throw or put, or permit his servantsto throw or put …. rubbish on any street, road”
It is true that the accused was not present, but he has delegated hisresponsibility to his servants, and when they in the course of, and withinthe scope of their employment, threw the rubbish on the road, althoughthey acted contrary to his instructions when they did so, it must be heldthat in law the master permitted them to do so for the master ought,at his peril, to have seen his prohibition obeyed.
The case of Allen v. Whitehead1 is one of many cases that support thisview. That was a case in which the licensee of a refreshment house wascharged under the Metropolitan Police Act, 1893, section 44, with havingwilfully or knowingly allowed prostitutes …. to remain therein.The licensee had expressly instructed his manager that no prostituteswere to be allowed to congregate on the premises. But he was liableto conviction, because the knowledge of the servant must be imputed tothe master.
As was pointed out in the case of Mousell Bros. v. N. W. Railway {supra),to ascertain whether a particular act was one in respect of which the masteris criminally liable, the words used, the .object of the statute, the. natureof the duty, the person on whom it is imposed, the person upon whomthe penalty is imposed must be taken into consideration. In thisinstance “ whosoever ” in the context of section 1 (12) means whosoeverbeing the occupier of premises, and the liability and the penalty areimposed on him in respect of his acts and those of his servants. If inthose circumstances, the employer were to be held not liable becausehe was not present or because he had given instructions, the statutewould be rendered nugatory. It would fail of its purpose.
I dismiss the appeal with costs which I fix at Rs. 21.
Affirmed.
' (1930) 1 K. K. 211.