DE SOYSA v. THE PRESIDENTIAL ASSURANCE COMPANY LIMITED

021-SLLR-SLLR-1987-2-DE-SOYSA-v.-THE-PRESIDENTIAL-ASSURANCE-COMPANY-LIMITED.pdf


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ERRATA. Pitase note that tha wordaPRESIDENTIAL ASSURANCE wherever they occurshould be corrected to read aa PRUDENTIALASSURANCE.
DE SOYSA
_v.
THE PRES£>ENTrAL ASSURANCE COMPANY LIMITED
COURT OF APPEAL.
G. P. S. DE SILVA, J. (PRESIDENT) AND DHEERARATNE, J.
C.A. 436/76 (F).
' D. C. COLOMBO-244/A.
MAY 5, 6, 7, 1987.
Insurance Law-Death by accident directly or indirectly occasioned or accelerated by■mental illness-Exception clause excluding proximate cause-Burden of proof.
The life of the deceased who in later life was afflicted with 'manic depressive illness'was insured with the defendant-company on three policies.totalling Rs. 100,000.Each of the policies contained a clause securing an additional benefit of double the sumassured in the event of accidental death. The deceased died in a train accident. Thedefendant-company paid Rs. 125,000 (sum assured with bonus) but denied liability topay the double accident benefit of Rs. 100,000 relying on the following exceptionclause-
'provided that the death occured within three months after the accident and wasnot directly or indirectly occasioned or accelerated-
fa) by suicide or self-inflicted injuries while sane or insane.
(b) by bodily or mental infirmity or illness or disease of any kind.
The deceased was knocked down by a train when he was walking along a rail track, anddied but the Insurance Corporation refused to pay the double accident benefit and atthe trial relied on (b) of the exception clause.
*
Held-
The inclusion of the.words 'directly or indirectly" in the exception clause excludesthe application of the maxim causa proxima non remota spectatur and a more remotelink in the chain of causation is contemplated than the proximate and immediate cause.
The burden of proof of the application of the exception clause is on the defendant.As the evidence on the point is equally balanced it cannot be said that the defendanthas discharged its burden of proving that.the deceased was suffering from mentalinfirmity on the day of the accident and that owing to his mental infirmity he took anearly morning walk along the rail track.
Cases referred to:
Winspear v. Accident Insurance Co. Ltd.-(1880) 42 Law Times 900.
Lawrencev. The Accident Insurance Co. Ltd.-(1881) Law Times 45 QBD.P. 29.
Smith v. Comhill Insurance Co. Ltd.-[1938] 3 All ER 145, 150.
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Coxev. Employers' Liability Assurance Corporation Ltd.-[1916] 2 K, B. 629.
Tootal, Broadhurst. Lee & Co. v. London and Lancashire Fire InsuranceCo.-(1908) Times. May 21 quoted tn General Principle of Insurance Law by Ivamy4th Edn. P. 444.
Miller v. Minister of Pensions-[1947] 2 All ER 374.
APPEAL from judgment of the District Judge of Colombo.
Dr. H. W. Jayewardene, Q.C. with M. A. Bastiansz and /. Keenavinna forplaintiff-appellant.
K. N. Choksy. P. C with Ronald Perera. C. Nadesan. Nigel Hatch and H. Wimaladharmafor defendant-respondent.
Cur. adv. vult.
July 24, 1987.
DHEERARATNE, J.
Sylvester de Soysa was truly a gentleman of leisure-; he was a wealthylandowner, a lover of literature, music, sports and art; adding to hischerished possessions were a collection of.valuable paintings and amusic band in which he himself played. Later, a dark cloud was foundominously casting its shadow on Sylvester's otherwise sunshiny life;for, he was struck down with a sad mental malady which requiredintermittent medical attention. Early hours of the 17th of October1969, saw Sylvester depart his life at a comparatively early age of 45years, being tragically knocked down dead, by a moving train.
Sylvester's life was insured with the defendant-company on threepolicies, all totalling to a sum of Rs. 100,000. Each of the policiescontained a clause securing an additional benefit by way of double thesum assured, in the event of accidental death. Thedefendant-company paid a sum of Rs. 125,000 representing the sumassured and the bonus accrued thereon, to the plaintiff, the widow ofSylvester and the administratrix of his estate, but it denied liability topay the additional benefit of Rs. 100,000, which sum the plaintiffclaims in this action. The basis of the denial of liability to pay. theadditional sum, is the identical exception clause containing in each ofthe policies, the material portion of which reads as follows
"provided that the death occurred within three months after theaccident and was not directly or indirectly occasioned oraccelerated T
by suicide or self-inflicted injuries while sane or insane,
by bodily or mental infirmity or illness or disease pf any kind."
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In the original court, counsel appearing for the defendant-company,having exercised the right to begin, at the close of his case, explicitlyabandoned the position that Sylvester's death was occasioned bysuicide or self-inflicted injuries and informed court that he was relyingonly on para (b) of the exception clause. In spite of this, the learnedtrial Judge, quite strangely reached the conclusion, that Sylvester' metwith his death by suicide and pfoceeded to dismiss the plaintiff'saction. The plaintiff appealed. When the appeal was argued before us'for the first time, we made order remitting the case back to the DistrictCourt for a trial de novo as the learned trial Judge had totallymisunderstood the issue presented to him-(vide judgment dated
. The defendant-company then sought special leavefrom the Supreme Court, to appeal from our judgment. At the hearingof that application to grant special leave, counsel for both sides hadagreed that the judgment given by us ordering a fresh trial, should beset aside. Consequently, we have been directed by their Lordships, tohear this appeal and come to a decision on the basis of the oral anddocumentary evidence recorded in the lower court, disregarding allfindings on primary facts arrived at by the learned DistrictJudge-(Vide S. C. Leave to Appeal Application 191/86; order dated
. We find ourselves now placed in not too easy asituation of having to draw inferences and reaching conclusions fromthe evidence led in the District Court, not having had the benefit ofseeing or hearing the witnesses ourselves. However, I may add thatour task has been made less arduous by the able assistance we havereceived from counsel appearing on either side, to whom we areindeed indebted.
Assuming that Sylvester did suffer from a mental infirmity. Dr.Jayewardene for the appellant submits that to come within theexception clause, the defendant-company must show that Sylvester'smental infirmity was the proximate and not a remote cause of hisdeath. Strong reliance was placed in support of this argument on twocases, which I shall instantly refer to.
. The first of these cases is the case of Winspear v. AccidentInsurance Co. Ltd. (1) approved by the Court of Appeal – 43 LawTimes page 459. In that case, William Winspear was insured againstdeath or injury by accident. While the policy was in force, Winspear incrossing or fording a stream was seized by an epileptic fit, fell down inthe stream and whilst suffering such fit, was drowned instantly. The
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relevant portion of the exception clause on which the insurer relied on
to deny liability, read as follows
"Provided further, that the insured shall not be entitled to makeany claim under this policy for any injury from any accident, unlesssuch injury shall be caused by some outward and visible
means; and that this insurance shall not extend to death by
suicideor to any injury caused by or arising from natural
disease or weakness or exhaustion consequent upon
diseaseor to any death arising from disease, although such
death may have been accelerated by accident."
In rejecting the defence of the insurer, Kelly C.B. said at page 903:-
"Had death arisen from one cause – for example from diseaseand that disease had been preceded by another cause, and that oneby another more remote, and that again by a fourth cause remoterstill, we must still have looked at the final actual cause, the causacausans, as logicians term it. What then is the causa causans in thepresent case? If it had been epilepsy, then without doubt theinsured's death would not have been within the terms of the policy,'and the plaintiff would not have been entitled to recover. But if therebe meaning in words and if the English Language admits of astatement with a plain grammatical meaning of the cause of anindividual's death, it is to my apprehension clear that here drowningwas the cause, and the only cause, of the death of the insured. Thedrowning may have occasioned by the deceased having fallen downin the water from a fit of epilepsy, and that fit may have beenoccasioned by a constitutional habit of the body, making itdangerous for him to expose his limbs t® the action of cold water,the one cause preceding the other, and being what logicians call thecausa sine qua non, but for which the death would perhaps not havehappened, but not being in the proper sense of the word the actualproximate cause of death. The real causa causans in this case wasthe influx of water into the deceased man's lungs, and theconsequent stoppage of his breath and so he was drowned.Anything which led to that, such as his being, if he were, subject toepileptic fits or being seized with a fit while crossing the stream, ;would be a causa sine qua non. If he had not had the fit he probablywould have crossed the stream in safety, byt that does not makethe fit causa causans, the actual proximate cause of death."
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The second case relied on by Dr. Jayewardene, is the case ofLawrence v. The Accident Insurance Co. Ltd (2). In that case, thedeceased insured was standing on a railway platform when he wasseized with a fit, fell on the railway line, and was instantly killed by alocomotive engine which was passing at that time. The material wordsof the exception clause relied on by the insurer to avoid liability read asfollows
'this policy insures payment only in the case of injuries
accidentally occurring from material external cause operating uponthe person of the injured where such accidental injury is the direct
and the sole cause of death of the insuredbut it does not insure
in the case of death arising from fitsor any disease whatsoever
arising before or at that time, or following such accidental injury(whether consequent upon such accidental injury or not, andwhether causing such death or disability directly or jointly with suchaccidental injury)."
In that case too, following the doctrine of proximate cause, William, J.expressed himself in the following words at page 31
"Now the question here is whether, upon the true construction ofthe proviso, this is a case of death arising from a fit. It seems to methat the first maxim of Lord Bacon is directly in point, in which hesaid that 'it were infinite for the law to judge causes of causes, andtheir impulsions one of another; therefore it is contenteth itself thatthe immediate cause, and judgeth of acts by that, without looking toany further degree'. Applying that maxim, to the words of thisproviso, we must look to the immediate and proximate cause ofdeath, and that would be the injury caused by the engine passingover the deceased. I think that the true meaning of the proviso isthat if the death arose from a fit, then the Company would not beliable, but it is essential to that construction that it must be madeout that the fit was the immediate and proximate cause of death".
However, the wording of the exception clause in the instant case, ismarkedly different from those in Winspear's case and Lawrence'scase and it carries the words "directly or indirectly occasioned oraccelerated by". As expressed by Atkinson J. in Smith v. ComhillInsurance Co. Ltd. (3).
"Each case turns on the construction of the particular policy and,unless the language is identical, one case is no authority for anotherunless the general principle can be extracted."
CADe Soysa v. The Presidential Assurance (Dheeraratne, J.) '215
It appears to me that the use of the words I have referred to above,appearing in the exception clause, have the effect of excluding thedoctrine of proximate cause from the ambit of that clause. In my view,the wording of the exception clause in the present case, strikes a closeresemblance to that which was used in the case of Coxe v. Employers’Liability Assurance Corporation Ltd. (4). At pages 634 & 635Scrutton J. said:-
' "But the words which I find impossible to escape from are■'directly or indirectly'. There does not appear to be any authority inwhich those words have been considered, and I find it impossible toreconcile these with the maxim causa proxima non remotaspectator. If it were contended that the result of the words is thatthe proximate cause, whether direct or indirect, is to be looked at, Ishould reply that that result does not appear to me to be. consistentor intelligible. I am unable to understand what is an indirect.proximate cause, and in my judgment the only possible effect whichcan be given to those words is that the maxim causa proxima nonremota spectatur is excluded and that a more remote link in thechain of causation i$ contemplated than the proximate and
immediate causeIn the present case the Arbitrator has found,
as a fact, that assured's death was indirectly traceable to war; andit is clear upon the facts that he was placed in a position of specialdanger – namely, he had to be about the railway line performing hismilitary duties at night with the lights turned down, in consequenceof .war and while doing his military duties in that position of specialdanger he was killed by reason of the special danger which prevailsat that particular place to which he was exposed by reason of hismilitary duties. In those circumstances I am unable to hold that theArbitrator could not reasonably find, as a matter of fact, that thedeath was indirectly caused by war
There is no dispute in this case, that the burden lay with thedefendant-Company, to prove the circumstances specified in theexception clause which constitute an excuse for the denial of liability topay the claim. As stated by Bigham, J. in the case of Tootal,Broadhurst, Lee & Co. V. London & Lancashire Fire Insurance Co. (5)in his summing up to the Jury:
"The excuses for refusing to pay are to be found endorsed uponthe policies, and they are as. much part of the contract as that whichis expressed on the front of the policy, by which they undertake to
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pay in the event of fire. The only difference is this, and it is animportant difference, and one that you must.bear in mind, that,whereas it is for the (insured) to show that their goods have beenburned, it is for the (insurers) to show to your satisfaction that the 1circumstances which constitute an excuse for non-payment of theclaim has in fact arisen. To use the common legal language, theonus of proof, so far as the excuse goes, is an onus which rests
upon the (Insurance) Company And, finally, you must
. remember that this is what is called an exception in the policy, and itis for the (insurers) to satisfy you that the exception has arisen whichexcuses them. They must not leave your minds in any reasonabledoubt about it, because if they do, they may not have dischargedthe burden which is upon them."
Admittedly, Sylvester succumbed to the injuries he received as aresult of his being knocked down by the train. Once it is ruled out thathis death was occasioned by suicide or self-inflicted injuries, I think theproper question I must ask myself, before venturing to- make anyassessment of the evidence led in this case, is this: "Whatcircumstances has the defendant-Company got to prove precisely toshow that .Sylvester's death was directly or indirectly occasioned oraccelerated by his mental infirmity?. In my view, thedefendant-Company has to prove the following circumstances
Sylvester was suffering from a mental infirmity on the fatal dayand due to. his mental infirmity he placed himself on the railwayline or its proximity; OR
Even if Sylvester did not place himself on the railway line or itsproximity due to his mental infirmity on the fatal day, he failed totake steps to avoid his .death-
because he was insensible to the danger of being knockeddown by the train, due to his mental infirmity; or
having sensed that danger, he could not remove himselffrom that danger,-due to his mental infirmity.
I must readily admit at this stage, that heavy reliance mustnecessarily be placed on circumstantial evidence to prove the abovecircumstances, yet bearing in miad, that on this score, no relaxation ofthe required standard of proof will ever be countenanced.
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From about 1967, Sylvester had been treated off and on for hismental illness, which in the medical parlance is described as "manicdepressive illness". His family doctor was a friend of his, one Dr.Schokman, a general practitioner, whose association with Sylvesterspanned a period of about three years immediately prior to his death.Dr. Schokman knew that Sylvester was taking psychiatric treatmentfrom some doctors in Colombo. The only occasion on which Dr.Schokman was consulted for Sylvester's mental illness, was about 3to 6 months before his death, when Dr. Schokman was summonedone night to Sylvester's house. On that occasion, Dr. Schokmanobtained for Sylvester, the services of a specialist in that field-Dr.Rodrigo, Professor of Psychiatry at the Peradeniya University and aConsultant at the Kandy General Hospital. Sylvester was treated by Dr.Satkunanayagam, Psychiatrist, Mental Hospital, Angoda, at theMental Hospital itself, at two private nursing homes in Colombo and atSylvester's Colombo residence. From 18.12.68 to 18.01.69,Sylvester was warded at the Mental Hospital and from 23.09.69 to04.10.69, at the Wycherly Nursing Home, Colombo, both occasionsunder the treatment of Dr. Satkunanayagam. It was only 13 days afterSylvester was discharged from the Wycherly Nursing Home, that hemet with his death..
All these three Doctors, Schokman, Rodrigo and Satkunanayagam,were called as witnesses on behalf of the defendant-Company.According to Dr. Schokman, there was a period when Sylvester usedto leave his home in Peradeniya; where he usually resided, early in themorning, and it was not infrequently that the plaintiff telephoned himto obtain his assistance to trace Sylvester. On one such occasion Dr.Schokman took Sylvester home. When specifically questioned as towhy Sylvester behaved in that manner. Dr. Schokman replied that hecould not say. It may be, that modesty made Dr. Schokman not toventure an opinion on a field he was not quite conversant with, or itmay be that Dr. Schokman, knowing Sylvester as well as he did,genuinely thought that there was nothing peculiar about Sylvester'sbehaviour. His evidence further was that, he did ih fact ask Sylvesterwhy he left his house in the early hours of the morning, and Sylvester'sreply was that he went to listen to the temple bejls. On two occasions.Dr. Schokman did meet Sylvester near the Dalada Maligawa when hewent in search of him. Dr. Rodrigo’s evidence, does not have anybearing, in my opinion, on Sylvester's leaving the house early morningin relation to his mental illness. On 04.10.69, Dr. Satkunanayagam
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found Sylvester fit to be discharged from the Wycherly Nursing Home,yet to continue the medicine. However, Dr. Satkunanayagam did notexclude the possibility of Sylvester getting a relapse. In my opinion, it isDr. Satkunanayagam who is best equipped to say whether Sylvester'searly morning walks, particularly the walk on the fatal day, bore arelation to his mental infirmity. I would therefore set out the relevantparts of the evidence given by Dr. Satkunanayagam on this importantaspect, verbatim, in the question and answer form.
Q.His (Sylvester's) wife had stated before the Coroner that whenin a depressed state he had the habit of leaving the housewithout informing aayone; is that a symptom of his illness?
A. Well, I cannot say precisely that it is a symptom of his ailment.To Court:
Q. When a person does an unusual thing and when it is a personwho has this type of illness, could you relate it to that illness?
A. His sleep could have been disturbed and he may have awakenedin the early hours of the morning and he could possibly do thatkind of things.
Q. Are those a probable result of his conditions?
A. Yes.
XXD:
Q. Is the leaving of the house a symptom of his illness?
A. Not by itself.
Q. If I told-you that after he left the nursing home he becamereligious and got up early morning to go to some religiousinstitution, will that be a symptom of this kind of disease?
A. Being interested in religion is not a symptom of the illness.
Q. At the time you discharged him he had recovered from whateverillness he had?
A. He had improved.
Q. Improved to such an extent that he could go home?A. Go home and continue the treatment.
Q. Could he look after himself?
A! Yes.
CADe Soysa v. The Presidential Assurance (Dheeraratne, J.)219
Q. Could you say whether by the 17th of October his conditionwould have deteriorated?
A. I cannot say that.
Q. Either way you cannot express an opinion?
A. Yes..,
At this point, I must pause to say that, taking Dr. Satkunanayagam'sevidence in isolation, I do not feel Sure to conclude that Sylvester wassuffering from any mental illness on the fatal day, or that he did not, Ido not feel equally sure, that he did take a walk on the railway line dueto his mental infirmity, or not. If Dr. Satkunanayagam with all hisspecial knowledge of Sylvester's illness could not say that for certain,one may ask, who else could be more sure? It seems to me that it iscertainly not an argument which advances the defence case to say,“well, no medical man can ever say that for certain".
I vyill now pass on to the accident itself. Besides the three doctors■ referred to above, on behalf of the defendant-Company the enginedriver Lamseed and the fireman Hemangoda were called aswitnesses. The plaintiff's evidence given at the Coroner's inquest, wasalso marked as an admission; but I propose to refer to that statement,later, when I deal with the evidence of the plaintiff. Sylvester wasknocked down about 4.13 a.m. by the train proceeding fromPeradeniya to Kandy, driven by Lamseed, after it completednegotiating a sharp right-hand bend at Mulgampola. The speed of thetrain, which had a steam engine, was between 18 to 20 m.p.h.Lamseed saw nothing; being positioned on the right-hand side of thecabin, he was watching that side of the bend, as was expected of him.Hemangoda was positioned in the left-hand side of the cabin, and hespotted the deceased "standing on the middle of the track" 100 feetaway, as the train was negotiating the bend,-when he promptlysounded the whistle and alerted Lamseed to bring the train to a halt Itwas too late; and when the train was brought to a halt, the engine andone bogie had gone over Sylvester. The head light of the engine, didnot directly fall on Sylvester, as the engine was negotiating the sharpbend; and Hemangoda frankly admitted that he was unable to saywhether Sylvester was on the middle of the track or by its side, exceptthat Sylvester's body, lying in the middle of the track, was retrievedfrom under the bogie. Hemangoda was not questioned as to whetherSylvester was facing the train or not and it is quite apparent from hisevidence that all what he saw, and indeed what he could have seen.
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was a fleeting glance of a figure of a man, with the aid of the glow ofthe head light, which head light did not fall on the man directly. If onewere to assume that Sylvester was walking towards Kandy from hishome, as suggested on behalf of the plaintiff, he would probably havebeen knocked from behind. Hemangoda admitted that he did not seeSylvester being actually knocked down, for, this would have beenimpossible, because the nose of the steam engine forming the boiler infront, is 30 feet long.
Are the facts that Sylvester took a walk on the railway track and thattoo in the early hours of the morning, indicative of his mental infirmity?
It is not unusual for people to walk on the railway line in Sri Lanka,whatever the position be in other countries. Lot of people do walk onthe railway track, but why at 4.13 a.m.?. I shall consider theexplanation offered by the plaintiff later, but apart from any mentalinfirmity, we cannot overlook the evidence in this case that Sylvesterwas a man prone to eccentricities. For instance, quite unlike most menof his wealth, social standing and education, Sylvester usually wentabout dressed in a sijk shirt and a silk sarong, in which dress he wasclad even on the fatal morning. This peculiar sartorial taste ofSylvester, was never presented to us, or to the court below, as a markof his mental infirmity. One cannot but also take serious note of thefact, that Sylvester was knocked down near a sharp bend on therailway track, and that such treacherous places are not unknown tohave counted the lives of men, even known to be perfectly sane.
Dr. A. B. N. de Fonseka who held the postmortem examination onthe body of Sylvester, being not available to give evidence, as he wassaid to have left the country, the defendant-Company only relied on hispostmortem report and in consequence, the best evidence toreconstruct the manner in which Sylvester was knocked down by thetrain, was not forthcoming. Dr. Balasubramaniam, the SeniorConsultant, General Hospital, Kandy, and a visiting lecturer inPathology at the University of Peradeniya, gave evidence for theplaintiff. It transpired from his cross-examination that he thought thathe had been summoned to give evidence on the question whetherSylvester did commit suicide or not, which question was actuallyredundant at that stage, that position having being abandoned by the 'defence. The field of forensic medicine was not foreign to DrBalasubramaniam as he had performed and supervised about 25,000postmortems in Sri Lanka and about 300 in the U.K., yet as far as thiscase is concerned, he was severely handicapped by the fact that he
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was relying on a report given by someone else. I may add here, thatDr. Balasubramaniam did not even claim to have had the opportunityof examining the steam engine which knocked down Sylvester. Thebody of.Sylvester was not mangled. Barring two serious injuries-theseverance of the right leg 1 1/2 inches below the knee; and anabrasion 2 1/2 inches broad starting from the front of abdomen in linewith the umbilicus and extending upwards and outwards to the back ofchest and ending at the lower angle of scapula (an imprint of therailway line), other injuries found on Sylvester were minor lacerationsand abrasions. Dr. BalSubramaniam attempted to reconstruct theaccident and suggested that Sylvester, while walking at the edge ofthe track, was probably struck by a projection of the engine, and then'sucked in" or "rolled in" to the track. However, cross-examinationrevealed that this was a mere theory and that Sylvester could haveequally suffered the injuries found on him even if he was knockeddown while being on the centre of the railway line. Was Sylvester onthe edge of the track or on the centre? Did Sylvester, having being onthe track attempt to make a hasty getaway? Or perhaps the mostsignificant question of all-Was Sylvester going in the same directionas the train or in the opposite direction? These remain unanswered.
' Dr. Balasubramaniam was a personal friend of Sylvester. Sylvesterdied on a Saturday, the Wednesday before, he dropped in to see. Dr.Balasubramaniam and arranged to have lunch with theBalasubramaniams along with his wife the following Sunday which hefailed to reach. The suggestion appears to be, that Sylvesie. was quitenormal on that day, and he probably was. on the fatal day. There is noreason to cast any doubt on this evidence of Dr. Balasubramaniam,but it does not help very much to decide the issue as to whetherSylvester was perfectly normal on the morning of the 17th October crnot.
The plaintiff—Mrs. Soysa, giving evidence, stated that afterSylvester was discharged from the Wycherly nursing home, he wasquite normal. Whether Sylvester was suffering from his mentalinfirmity or not, he used to walk to temples in the early hours of themorning, leaving home without informing anyone. He used to go tothe Dalada Maligawa and the Gatambe shrine, walking along therailway track. If ever she felt that Sylvester was. ill and if he did notreturn home in time, she used to ask Dr. Schokman to look for him.After Sylvester returned from the nursing home, he took a walk early
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morning for the first time, on the day he met with his death. On thefatal day, he had left home early morning as usual, without informinganyone. She did not go in search of him, but about 11 a.m. a PoliceOfficer informed her that Sylvester had met with an accident and shewas taken to the Coroner for the purpose of the inquest. She deniedhaving telephoned Dr. Schokman on the 17th morning asking him tosearch for Sylvester, because only when Sylvester was ill that sheinformed Dr. Schokman. She did not know where Sylvester had left foron that day, and it Was bout 5 or 5.30 a.m., that she noticed thatSylvester had left the house. She did not go in search of Syfvester onthat day, as there was no necessity to look.for him.
On behalf of the defendant-Company, the statement made by theplaintiff to the Coroner in Sinhala, was produced as an admission andstrong reliance was placed on this statement, to show that Sylvesterleft his home early morning in a state of mental infirmity. A translationof that statement reads as follows
"In 1959 my husband suddenly fell ill. Thereafter he was taken tothe Colombo General Hospital and according to the diagnosis of thedoctor (there), it was a mental illness. Thereafter, the diseasesurfaced several times frequently. Treatment was obtained fromseveral doctors but because there was no change in the condition,for the last three years continuously, treatment was obtained fromDr. Schokman and in the meanwhile, treatment was also obtainedfrom Colombo doctors. It was his practice to leave the housewithout informing anyone, when he got an attack of this disease. Onone such occasion, Dr. Schokman brought him home. On severaloccasions, he had gone away like this. Today about 6.30 or 7 a.m.when I woke up I saw the bath-room door open. When | searched hewas missing. I and my servants searched for him. About 11 a.m. Ilearnt from my uncle K. P. M. Jayasekera, that he had died as aresult of his being run over by a train. I do not suspect foul play."
The evidence of Mrs. Soysa came under heavy attack from Mr,Choksy, learned counsel for the defeodent-Company, who contendedthat her evidence given in the District Court is materially different fromthe statement made at the inquest and her summary of evidenceappended to the plaint. It was submitted, that the contents'of thestatement made by Mrs. Soysa to the Coroner, at the earliest availableopportunity regarding the circumstances leading to Sylvester's
CADe Soysa v. The Presidential Assurance (Dheeraratne, J.)223
death, before any dispute arose, are true and they show thatSylvester left the house, on the fatal morning in a state of manicdepression.
The question then arises as to what probative value should beattached to that statement made to the Coroner. It is not beyondone's imagination, to picture the agitated state of mind of Mrs. Soysawhen she made that statement, having being conducted directly tothe inquest, soon after the tragic news of her husband's death wasbroken to her. Could it be that what was foremost in her mind, as isnot unusual of any person near and dear to the dead, to clear the deadand his immediate family of any stigma generally attached to a case ofsuicide? Was that the reason she-stated that other doctors havingfailed. Dr. Schokman was continuously treating Sylvester for hismental infirmity for the previous three years, wNcKposition is not trueaccording to Dr. Schokman? Or, in her any oiy to stifle any iota ofsuspicion of foul play, did she put the cause of Sylvester's morningwalk on his mental infirmity? These possibilities cannot be excluded. Inany event, it appears to me, that Mrs. Soysa had rushed into aconclusion to which medical opinion was somewhat hesitant to reach.
I might mention here, that Dr. Schokman himself denied that he evertold the Coroner that he treated Sylvester for a period of three yearsfor his mental infirmity, although it has been so recorded by theCoroner. He was equally emphatic, that he did not use the high flown .Sinhala words attributed to him in his statement to the Coroner andthat he does not speak or understand them.
It is contended by learned Counsel for the defendant-Company, thatMrs. Soysa's evidence that Sylvester became religious and was in thehabit of visiting shrines in the .early hours of the morning, is anafterthought, fabricated for the purpose of this case, to explain awaySylvester's early morning walk. But in the very evidence of Dr.Schokman, on which .the defendant-Company relies, there isconfirmation of Sylvester's early morning visits to Dalada Maligawa.Much was made about the sharp contradiction between the evidenceof Dr. Schokman and Mrs Soysa, as to whether or not Mrs. Soysa did.contact Dr. Schokman over the telephone about 6.30 a.m. on the17th morning, seeking his assistance to search for Sylvester. Dr.Schokman says Mrs. Soysa did contact him, while according to Mrs.Soysa she did not. It is suggested'that in all probability Mrs. Soysa didcontact Dr. Schokman, but she was suppressing that fact, becausehad she admitted so, it would lend support to the view that Sylvester
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was mentally ill on that day. On the other hand, it was suggested thatDr. Schokman may have been confused on Mrs. Soysa havingcontacted him on that day, for some other occasion when he was infact contacted. Then it is pointed out that Dr. Schokman was notcross-examined on the point on the basis that he was mistaken. It ismaterial to observe that Dr. Schokman's evidence on this point isremarkably void in any detail; and that in his statement to the Coronerthere is complete silence on this matter. Without seeing or hearingeither Dr. Schokman or Mrs. Soysa give evidence, I find it difficult toresolve this conflict either way.
Well then, if the question be asked: Was Sylvester suffering fromany mental infirmity on the fatal day? My answer would be-probably.he was; probably he was not. If the question then be asked: DidSylvester take the early morning walk due to his mental infirmity? Myanswer equally would be-probably yes; probably no. If this is theconclusion I can arrive at, after an assessment of the totality of theevidence, I am unable to say that the defendant-Company hasdischarged its.burden. In this context, I think it is apposite to quote thewords of Denning, J. in the case of Miller v. Minister of Pensions, (6):
"This means that the case must be decided in favour of the manunless the evidence against him reaches the same degree ofcogency as is required to discharge a burden in a civil case. Thisdegree is well settled. It must carry a reasonable degree ofprobability, but not so high as is required in a criminal case. If theevidence is such that the Tribunal can say, 'We think it moreprobable than not' the burden is discharged, but if the probabilitiesare equal it is not" (emphasis is mine).
For the above reasons I would allow the appeal, set aside thejudgment of the learned District Judge and enter judgment for theplaintiff as prayed for in the plaint. The plaintiff will be entitled to hercosts of the Court below and costs of this Court fixed at Rs. 525.
G. P. S. DE SILVA, J.-I agree.
Appeal allowed.
Application No. 103/87 for special leave to appeal from this judgmentwas refused by the Supreme Court on 26.01.88.