COURT OF APPEAL.
B. E. DE SILVA. J. AND DHEERARATNE, J.
S.C. (C.A.) 270/78 (F) WITH 271/78 (F> – D.C. COLOMBO 79048/M.
Negligence of manufacturer of refrigerator – Breach of the duty to takecare – Damages – Prescription – Conciliation Boards Act s. 15 – Deduction of timetaken by proceedings before Conciliation Board in computing prescription.
On 13.9.1973 the plaintiff-appellant filed this action based on toft and alternatively oncontract seeking to recover from the defendant Company a sum of Rs. 250,000 beingdamages sustained by her for injuries suffered by her on 16.6.1971 as a result of theexplosion of a refrigerator manufactured by it and purchased by her father in 1967 forhousehold use. The plaintiff was completely deformed, disfigured and disabled by theinjuries sustained in the explosion.
The plaintiff alleged that there was a failure on the part of the defendant to take due carein the design and manufacture of the said refrigerator. The plaintiff pleaded negligenceby the defendant-company in fitting a burner unsuitable and unsafe for a kerosenererrigerator.
The plaintiff by application to the Conciliation Board dated 6 6.1973 (posted on7.6.1973) which would in the normal course have been received by the Board on8.6.1973 had sought relief from the Board but as no settlement was possible the.Chairman of the Conciliation Board issued a certificate dated 4.9.1973 which wasreceived by the plaintiff on 6.9.1973.
After the trial the District Judge held there was negligence on the part of the defendantbut dismissed the action on the ground that plaintiffs claim based on tort wasprescribed in two years. The action on contract was not sustainable because therefrigerator was sold to plaintiff 's father and there was no contract between plaintiff anddefendant. The plaintiff appealed from.this judgment and the defendant filed across-appeal against the finding of negligence against it.
(t) The time taken by proceedings before a Conciliation Board includes the time takenby the Boardito constitute a panel until the date on which the certificate is signed by theChairman of the Conciliation Board. The matter of plaintiff's application was pendingbefore the Board from 8 6.1973 to 4.9.1973 when the Certificate was signed by theChairman. In deciding on prescription this period should be deducted in terms of section15 of the Conciliation Boards Act and when this is done the action is found to be filedbefore the expiry of two years and therefore the claim is not prescribed.
(2) There has been a breach of the duty to take care in the design and manufacture ofthe refrigerator and the finding of the District Judge on negligence is supported by theevidence. The damages claimed are not excessive.
APPEALS from the Judgment of the District Court of Colombo.
H. W. Jayewardene. Q.C. with Eric Amerasinghe, P C., with Miss P. R. Seneviratne.and Harsha Soza. for plaintiff-appellant in appeal No. 270/78 and for theplaintiff-respondent in cross-appeal No. 271/78.
H. L. De Silva. P.C. with M iiliyas for the defendant-respondent in appeal No. 270/78and for the defendant-appellant in cross-appeal No. 271/78.
Cur. adv. wit
May 3. 1985.
B. E. DE SILVA. J.
The plaintiff-appellant filed this appeal from the judgment of thelearned District Judge dismissing the plaintiff's action. The plaintifffiled this action to recover from the defendant a sum of Rs. 250,000being the damages sustained by the plaintiff consequent upon injuriescaused to the plaintiff as a result of the explosion of a refrigeratormanufactured by the defendant and purchased by the plaintiff's father
for household use. The plaintiff pleaded that the said explosion wasdue to the negligence of the defendant in fitting the saidRefrigeratorwith a burner that was unsuitable and unsafe for a,/kerosenerefrigerator. The plaintiff further pleaded that there was a failure totake care in the design and manufacture of the said refrigerator as setout in paragraph 7 of the amended plaint which caused the explosionresulting in injuries to the plaintiff. As an alternative cause of action theplaintiff pleaded that the said refrigerator was purchased from thedefendant through an agent and was sold by the defendant through itsagent to the plaintiff's father for the express purpose of being used bythe members of the household including the plaintiff, the saidrefrigerator was not fit for the purpose for which it was manufactured.The said refrigerator was of defective manufacture and dangerous foruse and the plaintiff was injured and sustained damages.
The defendant resisted the plaintiff's claim for damages. After trialthe learned District Judge held that there was negligence on the partof the defendant but dismissed the plaintiffs action on the ground thatthe said claim of the plaintiff was prescribed. The plaintiff haschallenged the finding of the learned District Judge dismissing theaction and filed this appeal. The defendant too has filed a cross appealand challenged the finding of the learned District Judge that thedefendant was guilty of negligence and has moved that this finding beset aside and the appeal of the plaintiff be dismissed.
At the trial the plaintiff and her father gave evidence. The plaintiffalso led the evidence of Professor Jayatillake, Professor of MechanicalEngineering, University of Sri Lanka, Peradeniya Campus who hadexamined the refrigerator and the burner and issued the report P 3.The plaintiff also led the evidence of Dr. Joseph Fernando, the PlasticSurgeon in regard to the injuries sustained by the plaintiff.
The defendant on the other hand, led the evidence of Alagaratnam,a Consulting Engineer who had been a Research Engineer looking afterthe Industrial Development in the Department of Industries andsubsequently employed by Walker Sons & Co. Ltd., as Chief Engineerand the evidence of Dr. Sunderalingam Gnanalingam, Wijesundera,General Manager of Glacio in support of the' defendant's case.Alagaratnam and Gnanalingam had performed certain experimentsand it was their, evidence that this explosion was not due to anymechanical defect in design and manufacture of this refrigerator asstated. It was the evidence of the witness that this explosion could nothave occurred as set out by the plaintiff.
The plaintiff's evidence was that this refrigerator was bought fromthe defendant in 1967 and functioned very satisfactorily and wasmaintained by the plaintiff up to the time of her departure to India for acourse of study in Home Science. Subsequently she came back fromIndia and this refrigerator functioned satisfactorily till a month beforethis explosion occurred. It was her evidence that she filled • thekerosene tank on a Sunday and it was properly functioning on the nightof 15.6.71 with a blue flame. When she got up the following morningon the 16 th there was a black smoke emitting from the flue. She alsonoticed a yellow flame. She went to the refrigerator, bent down andopened the burner compartment and suddenly there was an explosionand burning oil spurted on her body and burnt her causing disfigurationof the face and body. She was rushed to the General Hospital andadmitted to the Intensive Care Unit in the Accident Ward. It was onlyin December, 1971 that her wounds had begun to heal. When thewounds healed she found she could not move her head. Her lower liphad dropped and could not be brought up to the upper lip. She couldnot raise her upper arm and .fingers. As a result of these injuries shehad to submit herself to plastic surgery.
Dr. Fernando, Plastic Surgeon who examined her found the plaintiffcompletely deformed, disfigured and disabled. According to Dr.Fernando she had to undergo plastic surgery about 33 times underanaesthesia. She has suffered permanent disfigurement of her faceand her disfiguration is irreparable and the damages claimed by her arenot excessive. The plaintiff also led the evidence that she sought asettlement of this dispute in the Conciliation Board but a settlementwas not possible and the Chairman of the Conciliation Board issued acertificate dated 4.9.73 which was received on 6.9.73 enabling herto file action in respect of her claim.
Professor Jayatillake a Professor of the University of Sri Lanka(Peradeniya Campus) in Mechanical Engineering had been consultedby the plaintiff as to whether or not the explosion of the refrigeratorwas due to a mechanical defect in its manufacture. ProfessorJayatillake had visited the plaintiff's house and examined therefrigerator P 7. He had been given the tank of the refrigerator P 5 and
the burner. Professor Jayatillake expressed the view that on the 15thnight the burner of this refrigerator had been malfunctioning and ayellow flame came into being. As a result of this yellow flame the metalparts of the burner got overheated. This heat was transmitted throughthe metallic parts of the burner to the tank. When the tank getsoverheated the fuel in the tank reaches a temperature above flashpoint. When the fuel reaches a temperature which is the flash point ofkerosene the vapour when mixed with air forms an ignitabie mixturewithin certain limits of flammability. The ignitabie mixture of vapourand air whilst the refrigerator is malfunctioning can escape onlythrough the vent holes at the base of the burner. There was anignitabie mixture in the kerosene tank. This ignitabie mixture waslurking until the morning. When smoke was ndticed the plaintiff hadtug-opened the door of the burner which has a spring loaded catch ;that tug caused a disturbance in the stable atmosphere. When therewas the disturbance of the air flow, the flame spread with overheatingceased to act as a flame trap and the flames would have gotdeflected. In the narrow tube there was the ignitabie mixture whichcatches fire and that was probably how this explosion occurred.
In his report P 3 he has stated that the kerosene tank was defectivestructurally. The tank has not been constructed so as to contain anyflame that may initiate inside it or be introduced to it from the burner.The sheet metal baffles which are fixed inside the tank to confine theflame to a portion between the edgeis and the sides and bottom of thetank are not effective. For the baffles to be effective they should be incontact with the sides of the tank and leave only a small gap at thebottom of a size that would quench any flame that tries to passthrough it. The bottom of the burner and the wick are directly exposedto the inside of the tank. Because of this heating up of the wick canevaporate kerosene vapour to saturate a substantial portion of thespace above the fuel of the tank. This could have been avoided byletting the wick draw oil from a well located inside the tank as is foundin the Electrolux refrigerator and this could be considered highlyconducive to safety. This well is formed of a cylindrical can attached tothe inner surface of the top of the tank so that Jt surrounds the wickand draws oil into it through a small hole in the bottom as shown infigure 5.
The 3/64 inch diameter holes at the bottom of the burner areunnecessary because unlike in the lamp to which this type of burner isusually fitted the fuel tank in the refrigerator ,is vented via the filleropening. These holes should not be there because they allow flamesto pass through when the fuel vapour in the central tube gets ignited.The bottom of the burner should have no openings at all except wherethe wick enters and the wick should fit the openings intended for itclosely so as not to allow vapour and flames to pass through. The sealbetween the top of the glass chimney and the flame could easilybecome ineffective due either to the sealing ring not falling into placeor the chipping of the chimney. A more positive and fool-proof sealingarrangement and a means of protecting the chimney from damageduring insertion of the tank are essential improvements on account ofthe importance of natural draft for supplying air for combustion. Theprocedure for cleaning the flue is not clearly specified and theimportance of regular'cleaning is not stressed.
On the other hand, Alagaratnam and Dr. Gnanalingam called by thedefendant did not agree with the view expressed by ProfessorJayatillake as to how this explosion occurred. They tried to show thatthis explosion was not due to any mechanical defect in themanufacture of the burner of this refrigerator. They had performedexperiments which disproved the theory expressed by ProfessorJayatillake. There was no mechanical defect in the burner of thisrefrigerator. This explosion could not have occurred in the mannerstated by the. plaintiff.
The learned District Judge upon a consideration of the evidenceaccepted the evidence of the plaintiff that the accident was due to thenegligence of the defendant in the design and manufacture of thisrefrigerator He also held that having regard to the injuries sustainedby the plaintiff the plaintiff's claim for damages was not excessive. Hedismissed the plaintiff's action on the ground that the plaintiff's claimwas prescribed. The plaintiff's action for damages being filed after aperiod of 2 years after the cause of action arose was prescribed andthe plaintiff thus could not maintain this action.
The plaintiff's first cause of action was one based on tort on theground that there was negligence on the part of the defendant asalleged in the plaint. The alternative cause of action was based oncontract. The alternative cause of action on contract cannot besustained as there was no contract between the plaintiff and thedefendant as the refrigerator was sold by the defendant not to theplaintiff but to the plaintiff's father. Adverting to the first cause of
action based on negligence this cause of action is prescribed within 2years from the date the cause of action arose. This incident whichcaused injuries to the plaintiff occurred on 16.6.71. The plaintiff'scause of action arose on 16.6.71.
Under section 14 (a) of the Interpretation Ordinance when a periodis calculated from a certain date that date is excluded. Prescription onthe plaintiff's cause of action begins to run from 17.6.71. Theplaintiff's cause of action based on negligence would thus beprescribed on 16.6.73, The evidence shows that the plaintiff hadmade an application to the Conciliation Board for settlement of thisdispute on 6.6.73 by registered post. Vide copy of application P 18and P 18 A certificate of posting. The application which was postedon 7.6.73 would have been received by the Conciliation Board on
in the normal course of business. The certificate of theConciliation Board is dated 4.9.73 and the plaint was filed on13.9.1973. In this certificate the Chairman has certified that thismatter came up for inquiry on 8.7.63 and could not be settled.
Section 1 5 of the" Conciliation Boards Act provides that incomputing the period of prescription in regard'to any cause of actionor offence the time taken by proceedings before a Conciliation Boardin regard to that cause of action shall not be taken into consideration.The learned District Judge has held that the time that is excludedunder this Section is the time spent by the Conciliation Board on theproceedings and not the time spent by the Chairman of the Panel ofConciliators in constituting the panel and issuing the certificate. On
the Board was unable to settle this dispute. The learnedDistrict Judge held that it is from the date the application was receivedtill-8.7.73 that has to be excluded for purposes of prescription undersectioh 15 of the .Conciliation Boards Act.
Learned counsel for the defendant contended that for the purposesof section 15 of the Counciliation Boards Act the commencingterminal was reference by the Chairman Of the Board to defendant bysummons on 1.7.73. The concluding terminal was 8.7.73 when theConciliation Board could not settle this dispute. It was only this periodfrom 1.7.73 till 817.73 that was excluded under section 15. Upon aproper construction.of the provisions of Sections 5, 6. 7. 12 and 1'4of the Conciliation Boards Act the view taken by the learned DistrictJudge and counsel for the:defendant are erroneous. In my view, on aproper construction of the provisions of the Act ‘the time taken by
proceedings before a Conciliation Board in regard to any cause ofaction’ includes the time taken by the Board to constitute a panel nilthe date the certificate was signed by the Chairman of the ConciliationBoard.
I am fortified in this view by the language of section 14 of the Actwhich precludes a party from instituting an action unless the partyinstituting such action produces a certificate from the Chairman of theConciliation Board that such dispute was inquired into by theConciliation Board and that it was not possible to effect a settlementof the dispute. In t|iis case prescription started unning from 17.6,71.The last date for filing plaint would be 16.6.73 The application of theplaintiff dated 6.6.73 posted on 7.6.73 would have been received on
in the normal course of business and this matter was pendingfrom 8.6.73 till 4.9.73 the date on which the certificate was issuedby the Chairman. From the 8th to the 16th there are 9 days and those9 days would have to be added to the date on which proceedingsterminated on 4.9.73. The last date for filing plaint was 13.9.73. Thisplaint has been filed on 13.9.73. Having regard to the provisions ofthe Prescription Ordinanace read with the provisions of section 15 ofthe Conciliation Boards Act the action has been filed within 2 yearsfrom the date the cause of action arose. The learned District Judgehas thus erred in holding that the plaintiff's action was prescribed andin dismissing the plaintiff's action on the ground that the claim wasprescribed.
The learned District Judge has held with the plaintiff that theexplosion was due to the negligence of the defendant in failing to takedue care and precaution in the design and manufacture of thisrefrigerator as set out in paragraph 7 of the amended plaint. Thisfinding of the learned District Judge that there has been negligence onthe part of the defendant in the design and manufacture of thisrefrigerator was challenged by the defendant by way of cross appeal.The question does arise whether the plaintiff has establishednegligence on the part of the defendant in the design and manufactureof this refrigerator as set out in the plaint, On this aspect of the casethe plaintiff, Professor Jayatiflake, Alagaratnam and Dr. Gnanalingamgave evidence. The defendant tried to make out that this explosioncould have taken place as a result of the burner not being put correctlyinto the socket; when the tank was pushed the burner had come intocontact with the flue and fallen down and the flame in the burner had
come into contact with the mixture of kerosene. Another suggestionwas that kerosene might have been contaminated by-petrol. It wasalso suggested that the explosion could have taken place as a result ofrusty flakes from the flue falling into the burner. The learned DistrictJudge holds that there was a bulge in the tank of the burner indicatinga violent explosion. The plaintiff's clothes had caught fire from theflames. These flames had flamed out of the tank. He has preferred toaccept the plaintiff's evidence and rejected the defence version as tohow this explosion occurred and held that there was no negligence onthe part of the plaintiff in the maintenance of this refrigerator.
The learned District Judge has carefully considered the evidence ofProfessor Jayatillake, Alagaratnam and Dr. Gnanalingam. The learnedDistrict Judge has preferred to accept the evidence of ProfessorJayatillake that a drop in the pressure forces the air in the fluedownwards and this could result in the flame going into the tankthrough the vent holes. He has observed that even Dr. Gnanalingamadmitted that this could take place if the bottom plate of the burnerwas red hot. He has thus observed that it could be expected to havehad this temperature considering the fact that there was an immediateexplosion when the burner compartment door was opened.
He has held that if the bottom plate had been red hot the flamespreader too would have got red hot as stated by Professor Jayatillakeand the flame could have entered the inner tube through theperforations and ignited the flammable mixture within the tube. He hasheld that a flame could have generated within the tank in the mannerstated by Professor Jayetillake. He was of opinion, considering thestate of the bulge on the tank that the flame within the tank has causeda serious build up of pressure. The flame which either entered throughthe vent holes or broke out spontaneously under the burner had therange to spread throughout the tank by reason of the space beingprovided for free and-easy circulation without hindrance. The failure toenclose the wick under the burner and the failure to provide breaks forfire spreads by such a device as extending the baffles right up to theedges of the tank constitute a lack of care in the design andmanufacture of the refrigerator. The manufacturer of the tank hasignored the probability of a flame breaking out within the tank and thecertain danger that results from an explosion which is very probable asa result of the flame and vapour.
Care on the part of the Engineers who manufactured thisrefrigerator of the defendant would have made them alive to thisprobability. If they were alive to this reality they should have provided adevice to contain or quell a flame from within the tank. A comparisonwith the Electrolux tank makes it evident that a simple device waspossible. This has been provided by the manufacturers of Electroluxwho had extended the baffles right to the edges of the tank andprovided a narrow well to take in the wick flaps. According to thisdevice a flame caused under the burner will not last long because theoxygen would be consumed in a short time. The failure to take thisprecaution is a breach of duty to take care in the design andmanufacture of this refrigerator.
He has also held that the defendant has failed to specify clearly themanner of cleaning the flue and the importance of regular cleaning, Ithas been urged by counsel for the defendant that the learned DistrictJudge has erred in his finding that there was a failure to take propercare in the design and manufacture of this refrigerator and theevidence of the defendant's witnesses should have been acted upon.The learned District Judge has carefully considered the evidence ledby the plaintiff and the defendant and come to a finding that there wasnegligence in the design and manufacture of the refrigerator. Therehas been a violent explosion in this case. The evidence of the plaintiffas to how this explosion took place has not been seriously challengedand has been accepted by the learned District Judge. The finding ofthe learned District Judge that there has been negligence on the partof the defendant is supported by the evidence in the case. Upon aconsideration of the evidence I see no justification to interfere with thefindings of the learned District Judge that there has been negligenceon the part of the defendant. In the result, I allow the appeal of theplaintiff and set aside the judgment of the learned District Judgedismissing the plaintiff's action. I enter judgment for the plaintiff asprayed for. The defendant's cross appeal is dismissed. The plaintiffwill be entitled to costs of appeal and costs in the District Court.
DHEERARATNE, J. – I agree.
Appeal of plaintiff allowed.Cross-appeal of defendant dismissed.
-CIHNTA DEVI v. GLACIO LIMITED