014-NLR-NLR-V-21-KOROSSA-RUBBER-COMPANY-v.-SILVA-et-al.pdf
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[Privy Council.]
Present: Viscount Haldane, Lord Buckmaster, and Lord Dunedin.KOEOSSA BUBBEE COMPANY v. SILVA et al.
Damageby fire—Actionfordamages—Proof ofnegligence—Evidence
Ordinance, ee. 88 and 83—Hearsay evidence—Statement by persontoho cannotbefound—Report of Kora la tokoteasdead—Method
of assessing damages.
Adestructive firespread from defendants'land to plaintiffs'
estate and destroyed a number of rubber trees. In an action fordamages plaintiffssought toprovethatthe firewascaused by the
act of thedefendants’ kangany P, who admittedto theArachchi
and to the Korala that he set fixe to a heap of rubbish or junglenear his hutondefendants' land. TheEoralamadea report, in
which was recorded the admission. The report was written nearlyone month after P made the statement. P disappeared before trial;the processservermade areturn to the effectthat asubpoena
could not beservedon P.The Eorala was deadbeforethe trial.
Held, (1) that theevidenceof the Arachchi thatP hadadmitted
that he had set fire to the jungle was admissible.
(2) That the report of the Eorala was admissible in evidence.
The lightingofa fire onopenbush-land, where itmay readily
spread to adjoining property and cause serious damage, is an operationnecessarily, attended with great danger, and a proprietor who executes suchan operation is bound to use all reasonable precautions to prevent' the fire- extending to his neighbour’s property.
The method of assessing damages indicated.
1919.
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urn facts are set out in the judgment of the Supreme Court
{20 N: L. R. 65).May 16, 1919. Delivered by Loan Dunedin : —
This is an action for damages at the instance of the plaintiffrubber company against coterminous proprietors, from whoseproperty a forest fire invaded the plaintiffs’ property and injuredthe rubber trees. The learned District Judge found that negligencehad been proved against the defendants, and gave judgment for acertain sum of damages. The Appeal Court affirmed on the merits,but reduced the amount of damages by Rs. 5,000. From thisjudgment appeal and cross-appeal had been taken by the defendantsand plaintiffs, respectively.
As regards the merits, it was not matter of controversy that thefire originated on the property of the defendants and spread to theproperty of the plaintiffs. It was alleged, and held to be proved byboth Courts, that the. origin of the fire was the setting on fire of aheap of rubbish by one Pulle, a servant of the defendants. In theirargument the defendants made two points. First, they- said thatthe fact of Pulle’s having set fire to a heap of rubbish was onlyproved by evidence which ought not to have been admitted.Secondly, they said that the setting on fire of the rubbish heap didnot infer negligence, and that, without negligence on the part of thedefendants’ servant, they could not be held liable. Pulle, who wasa watcher in the defendants’ employment, and lived in a hut notfar removed from the boundary of the two properties, disappearedtwo days after the fire, and could not be found at the time of thetrial of the action. It was supposed that he had gone back toIndia. In these circumstances, the plaintiffs tendered as a witnessthe Arachchi or headman of the village, who sent for Pulle andquestioned him, and to whom Pulle admitted that he had set fireto a rubbish heap. They also tendered in evidence a report madeby the Korala, the superior officer of the Arachchi, in which hestated that Pulle had made the same admission. The Korala haddied before the trial. The admissibility of this evidence dependson the provisions of the Evidence Act of 1895. Section 32 of theAct is as follows:— •
Section 32.—Statements, written or verbal, of relevant facts madeby a person who is dead, or who cannot be fonnd, or who has becomeincapable pf giving evidence, or whose attendance cannot he procuredwithout an amount of delay or expense which, under the circumstancesof the case, appears to the Court unreasonable, are themselves relevantfacts in the following cases:—
(1) "
(2) When the statement was made by such person in the ordinarycourse of business, and in particular when it consists of any ientry ormemorandum made by him in books kept in the ordinary course ofbusiness or in the discharge of professional duty
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(8) When the statement is against the pecuniary or proprietaryinterest of the person making it, or when, if tried, it wonld expose himor would have exposed him to a criminal prosecution or to a suit fordamages.
Their Lordships agree with the opinions of all the learned Judges,who have held that the evidence of the Arachchi fell within sub-section (3) and the report of the Korala under sub-section (2). Itwas, their Lordships consider, admissible for the learned Judge toconsider the whole proved facts of the case, and not merely thestatement itself, as was urged by the learned counsel for the appel-lants, in order to say whether the circumstances disclosed that anaction of damages would have lain against Pulle.' As regards thereport of the Korala, they agree that it was made in the ordinarycourse of official business, and that being so, the statement thereincontained that Pulle had admitted setting fire to the rubbish wasundoubtedly “ a relevant fact.”
There being, therefore, no good objection to the admission of theevidence, their Lordships have before them the concurrent findingsof both Courts that there was negligence on the part of the defend-ants’ servant in orginating the fire and taking no precautionsagainst its spreading. It is unnecessary to quote the evidence asto the condition of the wood where the fire was started and theproximity of peculiarly inflammable material. It is a purely juryquestion, on which the two tribunals have been unanimous. Sucha finding their Lordships would not readily disturb. The learnedcounsel for the appellants laid stress on the fact that the mere firingof rubbish did not per ae infer negligence. But what constitutesnegligence is a question of circumstances, and circumstances includesurroundings. In the case of Black v. The Christchurch FinanceCompany,1 Lord Shand, delivering a judgment of this Board, said:
“ The lighting of a fire on open bush land where it may readilyspread to adjoining property and cause serious damage is an oper-ation necessarily attended with great danger, and a proprietor whoexecutes such an operation is bound to use all reasonable precautionsto prevent the fire extending to his neighbour’s property (sic uteretuo ut alienum non Icedas).”
The same criterion, mutatis mutandis, has been applied in thecircumstances and the surroundings here, and the verdict has beenadverse to the defendants.
On the merits, therefore, their Lordships agree with the verycareful and able judgments of both Courts as to negligence. Butthey think it quite unnecessary to discuss the law of such oases asFletcher v. Bylands,2 or to consider what would have been the resultif no negligence had been proved.
There remains the question raised by the cross-appeal. TheTrial Judge calculated the damages by valuing the nett profit
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derived from each tree which he put, in the case of a totally destroyedtree, at Eb.,4 per annum. This he capitalized at five years' pur-chase. and then multiplied the sum by the number of trees. Aftera certain addition in respect of partially-damaged trees, he addedBs. 5,000 for the cost of re-planting and for the increased cost in theworking of the part of the estate which was left. On appeal thissum was disallowed, the Appeal Court holding that, as the spoiledtrees had been replaced at full value in money, no other sum fellto be added. Their Lordships think that the learned AppealJudges have scarcely adverted to the fact that the Trial Judgecapitalized the nett profit and not the gross. Admittedly there wereconstant charges, equivalent to what is known as oncost in manu-factures, which would not be diminished by the fact that only halfthe trees were left in cultivation. In allowing for the damagedtrees on the basis of nett profit, there is no allowance for the contri-bution which, so to speak, those trees would make to the oncostcharge. There is, therefore, no allowance twice for the same thingin the method adopted by the learned Trial Judge, and his figureof Bs. 5,000 must be restored.
Their Lordships will, therefore, humbly advise His Majesty todismiss the appeal, to allow the cross-appeal, and restore the judg-ment of the Trial Judge. The respondents in the appeal and theappellants in the cross-appeal to have their costs before this Board.
Appeal dismissed.