064-NLR-NLR-V-50-DARLIS-APPU-Applicant-and-DAVID-SINGHO-Respondent.pdf
DIAS J.—Darlis Appu v. David Singho
241
1948Present : Dias and Windham JJ.
DILRLIS APPU, Appellant, and DAVID SINGHO, Respondent*S. C. 125—D. O. Matara, 17,334
Negligence—Damage by fall of coconut tree—Duty of oumer—Act of Ood.
Where the defendant took no steps to prevent a coconut tree, which,to his knowledge, was a potential source of danger, from falling on hisneighbour’s house—
Held, that the defendant had been guilty of negligence.
Jinasena v. Engletina (1919) 21 N. L. R. 445, distinguished.
.A.PPEAL from a judgment of the District Judge, Matara.
N. E. Weerasooria, K.C., with S. W. Jayasuriya and W. D. Guna-sekera, for the defendant appellant.
Cyril E. S. Perera, with Naina Marikar, for plaintiff respondent.
Cur. adv. vult.
November 19, 1948. Dias J.—
The plaintiff-respondent and the defendant-appellant are neighboursand adjacent land owners in the town of Weligama in the SouthernProvince. ' During the night of June 8, 1945, during what, has beendescribed as “ an unprecedented storm ”, a coconut tree standing on thedefendant’s land near the plaintiff’s house, and which slanted over theplaintiff’s house, was brought down by the gale and almost destroyedthe whole of the plaintiff’s house. The nature of the storm can begauged by the fact that it uprooted “the famous Nuge tree” ofWeligama.
That this coconut tree, although described as being young and healthy,was a potential source of danger to the plaintiff’s house is amply demon-strated by the evidence both oral and documentary which the DistrictJudge has accepted. Furthermore, the evidence shows that this treehad been anchored or moored to another coconut tree half-way up itstrunk by means of a wire or hawser.
The evidence, which the District Judge has accepted, proves that fromabout 1941 the plaintiff had been writing to the Urban Council of Weligamaof which the defendant’s cousin, Charles, was a member, complainingabout this dangerous tree—see P3-P7. Curiously enough, when theUrban Council was summoned to produce these letters, it was statedthat the office file was destroyed “ because it was too thick ”, a singularlyunconvincing reason. In a public office when files become “ too thick ”they are not destroyed, but sub-divided. Be that as it may, the evidenceproves that both the then Chairman of the Urban Council and Mr. Waniga-sekera, the Works and Revenue Inspector, inspected this tree.Mr. Wanigasekera says that the plaintiff and his wife showed him“ only one tree as overhanging ”. The plaintiff has stated on oaththat, although the defendant is a trader at Matale, he had told the
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DIAS J.—Darlia Appu v. David Singho
defendant on his visits to Weligama on eight occasions about thisdangerous tree." Plaintiff swears that about four months before the treewas blown down, the wire hawser snapped, but that the defendant didnot get the wire replaced. The defendant denies that the plaintiff evercomplained to him, or that he was aware that the tree was slantingtowards the plaintiff’s house. The District Judge has disbelieved him,and I agree with him that on the evidence, both direct and circumstantial,it is quite incredible that the plaintiff should have been complainingto the authorities without informing the owner of the tree. I am ofopinion that the evidence points to the facts, that the tree was dangerous,that the defendant was well aware of the danger of that tree to the safetyof the plaintiff’s house, that he took the precaution of having the treefastened to another tree, and that he failed to have the wire replacedwhen it snapped, probably owing to the swaying of the stem caused bythe high winds which normally exist along the south coast of this Island.
In my opinion, the evidence when carefully considered establishesquite clearly that the defendant was the owner of the tree (in fact, there isan admission on record to that effect) ; that he was well aware of thedanger and took steps to avert that danger ; but that he was negligentwhen he failed to replace the wire hawser when it snapped some timebefore the night the tree was blown down. In my opinion, this amountsto negligence. It was the defendant’s negligence coupled with thehigh wind which caused the tree to fall. One can take judicial noticeof the fact that in June the south-west monsoon would be at its peak.In the Southern Province the winds of the south-west monsoon wouldnormally be severe. These are facts the defendant should have beenaware of and guarded against.
It has been contended that this tree fell, not because of the negligenceof the defendant, but owing to “ an act of God ”. This plea was nottaken in the answer, but I agree with learned counsel for the appellantthat it is open to him to rely on any facts which negative negligence.
“ The act of God ” is a plea which is very frequently brought forwardto excuse the negligence of man. It really amounts to nothing morethan an event which, as between the parties, and for the purpose of thelitigation, is to be regarded as incapable of being definitely foreseen andcontrolled. In my opinion, any land owner living by the sea coast inthe south of Ceylon whose coconut tree dangerously slants over hisneighbour’s house, must foresee the possibility of a strong wind causingthe tree to fall, and should, therefore, take steps to prevent that possibility—either by felling the tree or anchoring it in such a manner that it wouldnot fall on his neighbour’s house. The case of Jinasena v. Engletina1can be distinguished from the present case on the facts. Schneider J.said :“ The planting of a coconut tree on one’s land is a lawful act,
and is the making of a lawful use of the land. The mere fact that whenthat plant has become a tree, a part of it overhangs the neighbouringland, and the mere fact that it had a thin stem, do not render the tree adangerous element, or even a danger to the neighbouring land. Where-ever we cast our eyes about in the Island, we see coconut trees on oneman’s land overhanging his neighbour’s land. It is nothing extra-
1 (1919) 21 N. L. R. 445.
DIAS J.— TJkhu v. HoratTiala
243
ordinary to find the stems of some of these overhanging trees thin. It isa matter of common knowledge that the stem of a coconut tree is verystrong. Thus, unless there was something extraordinary in the mannerof the tree in question overhanging the plaintiff’s land, or in the state of itstrunk, the plaintiff should have averred and proved negligence before hecould obtain damages against the defendants. But he has provedneither of these things
It is important to note that what Schneider J. was there consideringwas, whether apart from negligence, therule of absoluteliability formulatedin Fletcher v. Hylands1 created liability in the defendant. Obviously,assuming that Fletcher v. Hylands applies to Ceylon (see hereon KorrossaRubber Co. v. Silva 2, Samed v. Segutamby3, Subaida TJmma v. Wadood4)in the case of Jinasena v. Engletina the coconut tree being naturallyon the defendant’s land, and there being no proof of negligence on thepart of the defendant, the rule of absolute liability was necessarilyexcluded.
Jinasena v. Engletina is clearly distinguishable from the present caseon the facts. There was something extraordinary and dangerous in thetree in question, and the defendant was well aware of it, because he tookthe precaution of anchoring that tree to another. It was the defendant’snegligence in not re-securing that tree after the hawser snapped whichwas the direct cause of the damage done to the plaintiff’s house.
No question was raised in regard to the quantum of damages.
I dismiss the appeal with costs.
Windham J.—I agree.
Appeal dismissed.