l.oku Banda i Vkku Banda tSn;a. J )
COURT OF APPEAL
ABDUL CADER, J.. AND ATUKORALE, J.
C.A. (SC) .16/76 – M.C. MINUWANGODA NO. 2/M.
SEPTEMBER 3, 1982
Delict – Bylands & Fletcher Rule – Should substance that escapes be intrinsicallydangerous? –
The respondent was owner of a paddy field called Galakumbura. The appellantwas the owner of land to the north of this paddy field on. wh|ch- he had acoconut and fibre mill.
The respondent alleged, that the appellant had caused: dirty., water accumulatedon his land to flow into the respondent's field and damage his crops.
Sri Lanka Law Reports
(1982) 2 S L R.
The Magistrate found that dirty water, flowed from the appellant’s land to therespondent’s land and damage^ -.his. crops. Applying the Rule in Rylands v.Fletcher the Magistrate awarded damages to the respondent. The appellantapj>ealed against this award.
The appellant is liable for the consequences of his act in damming up and storingthe dirty water on bis land regardless of whether he is guilty of negligence or not.
Cay referred to:
(1) Rylands v. • Fletcher L.R.H.L. 1868, English and Irish Cases, Vol. 3, 330APPEAL from judgment of the Magistrate of Minuwangoda.
NimalSenanayake S.A. with Miss S:M. Senaraine and M.A. Ghazalti for the appellant.
– J.W. Subasinghe S.A. with D.J.C. Nilanduwa for the respondent.
October, 29, 1982ATUKORALE, J.
The respondent filed this action against the appellant for, interalia, the recovery of a sum of Rs.750/- being damages caused to aportion of the paddy crop standing on the field called Galakumbura,of which he was the tenant cultivator. The appellant who is theowner of the land to the north of the field runs a coconut and ,afibre mill on his land. The respondent alleged that the appellant haswrongfully and unlawfully caused the coconut and dirty wateraccumulated on his land to flow into the respondent’s field as aresult of which the paddy plants standing on a.part of the fieldperished. The defence taken *up by the appellant was that he hadconstructed tanks and trenches in his land to prevent the flow ofthis water but that owing to the heavy rainfall experienced in thearea during the month of November, 1973, this water overflowedand as such the damage, if any, was due to causes beyond hiscontrol. He also maintained that coconut water was not harmful topaddy plants and that he mixes coconut water with fibre dust anduses the mixture as a fertiliser for coconut, paddy and vegetablecultivations.
After hearing the evidence, the learned Magistrate entered judgmentfor the respondent in a sum of Rs.300/-. In the course of his judgmenthe stated that the main questions for his determination were whether
Aloysins Silva r. Li pah Sila, lAtiikuraU’. J.)
dirty coconut water, flowed, from the appellant's coconut and fibremill to the respondent’s field and, if so, whether the appellant wasliable, to paym^jamages for,,the, loss sustained by the respondent. Ont^.evijgkince jed.,Jie,,came to the finding,, tfpit dirty coconut waterflppr^d f,rptnr.the appellant’s, land to tjtjp respondent’s field and thatjhere^y '^amage. was. caused to the paddy plants in one section ofthe field. He also held, applying the principle laid down in Rylandsv. .Fletcher (1) that the appellant's liability for the damage done,wasone of absolute liability and awarded the respondent the said sermof. Rs. 300/- as damages.
Admittedly no issue on negligence was framed at the trial. Learnedcounsel for the appellant, whilst not disputing that the rule laid downin Rylands v. Fletcher (1) is part of our law, submitted to us thatthe learned Magistrate erred in the application of this rule to thefacts of this case. He contended:
that there was no evidence of an accumulation of dirty coconut
water by the appellant on his land;
that“even if tlfere was such an accumulation, dirty coconut water
Wai> riot a substance that was naturally or inherently dangerous; and
that‘there was ho evidence to show that this water escaped from
the appellant’s land to the respondent’s field. ' I:':",J
’ ' K»» • •’*• '••
He therefore maintained that the judgment of the.learned. Magistratewas wrong.
In regard to the first and third contentions aforementioned thereis, in my view, ample evidence to establish both the accumulationof this water by the appellant on his land as well as its escape intothe respondent’s field. The appellant himself’during the course of
his evidence conceded that he had built high embankments like tanksto store this water on his land. He did sb,°aCtdfdirig't<5 him,' topreserve . this water for the purpose of manufacturing' ll foriri offertilizer by Adding fibre dust thereto. In stffar as thblhi'r^ cdntentibnaforementioned is concerned, the evidence''bf the resj>ondent and hiswitnessed? which has accepted 'by'the learned Magistratej provedbeyond doubt that this'^’(er ’haif.escaped into the respondents'field.Wattegfe’deYa, the' Grama‘ S^v^ka,' called 'by the 'resp'ohdentf^tatedhe saw. this water coming’’Into the'‘field* from tHe^appellant's land.The evidence of Austin Fernando,'the dh'airma'ri of 'the^'^SaffiaCommittee, was to the same effect/ Several other” witnesses called
by the respondent testified to the fact that on inspection they observedthat this dirty water had entered the field and that it bore a dirty
Sri Lanka Law Reports
(1982) 2 S L R.
stench and an oily character on its surface. The appellant himselfadmitted that this feater had got into the field but he attributed itto the heavy rainfall which he stated occurred at the time. He statedthat as his land was on a higher elevation than the field the tanksgot filled up for the rains and the water flowed according to thenatural gradient of the terrain into the respondent’s field and as suchhe was not liable. The learned Magistrate has, however, rejected theappellant’s evidence that there was heavy rainfall. It was also inevidence that the owner of this field had sued the appellant in 19S3claiming damages for the loss of his paddy crop due to the dirtywater from the appellant’s land flowing into the field. The appellantdid not deny in that case that there was an accumulation of dirtywater on his land. Nor did he maintain in that case that the flowwas due to the rainfall. His defence was that he had acquired theright to let this water flow into the field by virtue of prescriptiveuser for over 30 years. In. his answer (P3A) in that case he alsoaverred that on receipt of a letter from the plaintiffs Proctor hediverted the water into a pit on his land. But even assuming thatthe flow of the dirty water into-the field was due to the heavyrainfall as maintained by the appellant in this case, it appears to methat this is not a defence to the respondent’s claim. TTie water isdirty water accumulated by the appellant by artificial contrivancesbuilt by him on his land. It is not surface rain water flowing naturallyfrom his land into the field below. It is dammed up water beingallowed to overflow into the field and comes within the principleenunciated in Rylands v. Fletcher (1).
Learned counsel for the appellant pressed for-our considerationthe third contention mentioned above, namely, that coconut and dirtywater is not a substance that is by itself naturally dangerous andthat being so, no liability would attach to him on the principle laiddown in the above case. He submitted that to be held liable it isnot sufficient that the substance accumulated is potentially dangerousbut that it should be proved that it is intrinsically dangerous. Hestated that coconut water may be deleterious to paddy plants butthe test is whether it was in its nature dangerous by itself. If not,he contended, the rule in Rylands v. Fletcher (1) would have no application.I do not agree with this contention. Blackburn, J. in delivering thejudgment of the Court of Exchequer in appeal laid down the doctrineof absolute'liability in the following terms:
“We think that the true rule of law is, that the person who
for his own purposes brings on his lands and collects and keeps
CAAloysius Silva v. Upali Si!,t i '■ ’• •! ■•fuV. J )713
there anything likely to do mischief if it escapes, must keep itin at his peril, and, if he does not do so. is prima facieanswerable for all the damage which is the natural consequenceof its escape. He can excuse himself by showing that the escapewas-owing to the plaintiff's default; or, perhaps, that the escapewas the consequence of vis major, or the act of God; but asnothing of this sort exists here, it is unnecessary to inquire whatexcuse would be sufficient. The general rule, as above stated.
seems on principle just. The personwhose mine is floods
by the water from his neighbour’s reservoiris damnified
without any fault of his own; and it seems but reasonable andjust that the neighbour, who has brought something on his ownproperty which was not naturally there, harmless to others solong as it is confined to-his own property, but which he knowsto be mischievous if it gets on his neighbour's, should be obligedto make good the damage which it ensues if he does not succeedin confining it to his own property. But for his act in bringingit there, no mischief could have accrued, and it seems but justthat he should at his peril keep it there so that no mischiefmay accrue, or answer for the natural and anticipated consequences.And upon authority, this we think is established to be the lawwhether the things so brought be beasts, or water, or filth, orstenches,” – L.R., Court of Exchequer. Vol.l. at p.279.
The above statement of the law was expressly adopted by LordCairns, Lord Chancellor, in his judgment in the House of Lordswhich affirmed the judgment of the Court of Exchequer – L.R.,1868, English and Irish Cases, Vol.3, p.330. What was collected andstored in that case was water, a substance which cannot be consideredto be dangerous by nature. The act that was considered to bedangerous was the act of the defendant in introducing and storing-water.on his land which was not a natural but a non-natural userof the land. He had thus brought upon his land a condition byartificial means which was dangerous and may have become mischievousif not kept under proper control. In the instant case, too, the appellanthad “brought upon his land, collected and kept there somethinglikely to do mischief if it escaped.” The third contention of learnedcounsel for the appellant therefore fails. It appears to me that theappellant is liable for the consequences of his act in damming upand storing the dirty water on his land, irrespective of whether hewas guilty of negligence or not. Under the circumstances it is
714Sri Lanka Law Reports(1982) 2 S.L.R.
unnecessary to consider whether the evidence adduced establishesnegligence on the part of the appellant'and, if so, whether therespondent can seek to support the judgment of the learned Magistrateoh that ground. The appeal is dismissed with costs.
ABDUL CADER, J.- I agree.
Appeal dism issed.
ALOYSIUS SILVA v. UPALI SILVA