054-NLR-NLR-V-10-DE-SOYSA-v.-PUNCHIRALA.pdf
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1907.July 8.
Present: Mr.’ Justice Wood Benton.
DE SOYSA v. PUNCHIBALA.
C.R., Kandy, 3,927.
Injury byanimals—ActiodeipaupeTie-^Negligence—Culpa—LexAqui-
lia—Liabilityofowner—Nox©deditio—Domestic*animals—
Animals of a ferocious disposition—Damages.
Wood Benton J.—If damage is caused by an animal which isordinarily of a gentle disposition, but which for the time being was-acting contra naturam, the owner is liable by the mere fact ofownership, irrespective of the question whether he was negligentor not; and it is open to him either to pay the damages which theoffending animal has caused, or to surrender the animal itself.
If the offending animal is by species of a fierce disposition(genitalis ,ferita$), or, although domestic by species, of mischievouspropensities (calcitrosus; petere solitus), the owner is liable underthe actio de pauperie to pay the full amount of damages without thealternative of noxal surrender.
If there has been negligence on .the part of the owner, he is liable
to be sued by the Lex Aquilia for the full amount of the damages
without the alternative of noxal surrender.
« *
A
CTION for damages. The facts material to the* report suffi-ciently appear in the judgment.
R. L. Pereira, for the plaintiff, appellant.
*Wadsworth, for the defendant, respondent.
Cur. adv. vult_ .
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£th July, 1907. Wood Renton J.—
I have come to the conclusion that the decree appealed againstmust be set aside and the case sent back for further inquiry andadjudication.
It seems to me that there are two grounds on which this conclusionis necessary. In the first place, I am unable to agree with the learnedCommissioner of Requests that the damage alleged was too remote.It is perfectly clear that if negligence had been averred and provedagainst the owner, he would be liable for damage of this kind. Itmay quite well be that the injured bull exaggerated the seriousnessof its injuries, and acted unreasonably in plunging over the precipice,which unfortunately was close at hand. At the same time, thesecircumstances, in my opinion, do not prevent the accident frombeing the natural result of what happened to the appellant’s bullin this case. In support of this proposition I refer to the Englishcase of Halestrap v. Gregory* also to the local case of Malhamy v.MudaUhamy.2 The presence of the precipice no more makes thedamage complained of here too remote than that of the wire fencein the former of these cases or the passing train in the latter. I donot think this question depends on whether or not negligence isalleged. There does not seem to have been any allegation orproof of negligence in Malhamy v. MudaUhamy2 It appears tome, in the second place, that ‘.the case has not yet been framed in aform clearly indicating what are the real issues between the parties.
Sitting here as a single Judge, I cannot over-rule or question thelaw which has been laid down in the cases of Folkard v. Anderson *and Tliwaites v. Jackson* It is clear, therefore, that in a caseof this kind the remedy open to the plaintiff must depend on the^circumstances under which the injury was caused. If it was causedBy an animal which is ordinarily of a gentle disposition, but which forthe time being was acting contra naturam, the owner is liable by themere fact of ownership, irrespective of the question whether hewas negligent or not, and it is open to him either to pay the damageswhich the offending animal has caused, or to surrender the offendinganimal itself. This is one form of the actio de pauperie (Inst. 4, tit.9; Dig. 9, tit. 1; and see 21, tit. 1; Voet 1, ix. tit. 1), and althoughan owner!s liability for injury caused by an animal belonging to him,irrespective of his own culpa, has been held to be obsolete in SouthAfrica (Nathan iii., ss. 1690 – 91), I at least am bound to hold onthe authorities above mentioned (and cf. also Jacobs v. Perera 5)that it is stfill^n force in Ceylon.*
On, .the other hand, if the animal is by species of a fierce dis-position (genitalis ferilas), or, although domestic by speeies, of mis-chievous propensities (calcitrosus; petere solitus)i the owner must.
i (1895) 1 Q. B. 561.3 Ham. (1860). 68.
* Ram. (1876) 288.* (1895) 1 N. L. R. 354.
3 (1876) 2 N. L. R. 115.
1907.
July 8.
20-
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1807. still, under the actio de pauperie, bear the full damages (see DurayaJvty 8-v. Kira;1 Van Leuwan 4, 89, 6; 2 Kotz6 323, 324). The same result
Woodfollows undef the Aquilian Law, Dig. 9, tit. 2; Foet 9, tit. 2, if
BstfroH J. there has been negligence on his part. In these latter eases thealternative of noxce deditio does not arise.
It appears to me to be desirable that the plaintiff-appellant in thiscase should have the opportunity, if need be by the amendment other plaint, of showing her opponent what are the precise facts whichshe alleges, and which of the alternative remedies that I have men-tioned she actually claims. The litigation seems to be launched bythe plaint as an aclio de pauperie, in which mischievous dispositionis alleged. But th6 evidence on that point is so meagre that, if itcannot be strengthened, the question would arise whether the caseshould not be treated as one of a domestic animal acting contra' naturam} in which event the defendant-respondent- would have thealternative of noxal surrender. There is no averment of negligence-in the plaint, but the subject seems to have been touched upon inthe argument. An allegation of negligence would bring the caseunder the Aquilian Law. It is in the interest of both parties thatthese issues should be placed clearly before the Court. I set asidethe judgment and send the case back to the Court of Bequests. Itwill be open .to the appellant, if she is so advised, to amend he/plaint, within any limit of time that the Commissioner may fix, forthe purpose of showing whether the remedy that she claims againstthe respondent is by way of an actio de pauperie, in one of itsalternative forms, or an action under the Aquilian Law.
The appellant shall have the costs of. this appeal. The costs ofall previous and subsequent proceedings herein shall abide theevent..
Appeal allowed; case remanded.
1 f!0O4) 1 Salasingham 48,