( 74 )
Renton C J-
KorossaRubber Oo.v. SHvo
timber, to lie unremoved. Moreover, even if their action in doing-so had been negligent, the fire would not have spread to Horossaestate at all but for the negligence of the defendant. In thesecircumstances, it becomes, strictly speaking, unnecessary to decide'the interesting legal question debated before us as to whither theBoman-Dutch law on the point now under consideration has beensuperseded by the law of England. Under the Boman-Dutch lawa person who starts a fire on his own land is bound to use the utmostdiligence and care to prevent it from spreading on to his neighbour’sproperty, and the plaintiff cannot recover damages without proofthat the defendant has neglected to observe-the diligence which thelaw requires of him.1 Under the law of England, in accordancewith the rule enunciated in the leading case of Fletcher v. Rylands,*a person who introduced a dangerous element, such as fire, on hisland is responsible for whatever damage he may cause to others byits spreading, whether he has taken all the obvious precautions ornot. In Eastern and South African Telegraph Company v. Cape-town Tramways Company,3 Lord Bobertson, in delivering thejudgment of the Privy Council, observed that the principle ofFletcher v. Rylands 2 was not inconsistent with the Boman law. Thesoundness of this view was doubted by Lord de Villiers in UnionGovernment (Minister of Railways) v. Sykes,* and it has, in England,been pointed out in recent years that the rule affirmed in Fliicher v.Rylands 2 is not applicable to cases (a) of damage whose proximatecause is the malicious act of a third person, against which pre-cautions would have been inoperative, in the absence of a findingthat the owner of the property either instigated it or ought to haveforeseen and provided against it, and (b) in which the user of theelement which caused the damage was a natural one.5 In the caseof Richards v. Lothian,• from which I have cited these propositions,it was held that a reasonable supply of water or gas introduced intoa house for domestic purposes was not a dangerous element withinthe meaning of Fletcher v. Rylands,2 But I am not sure that the use'of fire on an estate in order to bum down jungle, however lawful itmight be, would come under the same category. As far back as1876, however, it was admitted by counsel in the argument, andheld by the Full Court in the judgment, in the case of Elphinstonev. Boustead, 7 that the principle laid down in. Fletcher v. Rylands 2had been adopted in this Colony. There is a ruling to the sameeffect by Lascelles C.J. and De Sampayo J. so recently as 19.14.8 Itis well settled that the Boman-Dutch law, pure and simple, does notexist in this country in its entirety. It has been modified in many
1 Maas., vol. IV., 60, and Nathan,ml. III., p. 1783.
(1868) L. R.3H. L. 300.
•(1902) A. O. 383.
1913) South African L. R. Appl.Div. 166.
Richards v. Lothian, (1913) A. C.263.
• (1913) A. 0. 263.
Ram. (1872-76) 268.
•Silva v. Silva, (1914) 17N. L. R.266.
( 75 )
directions, both expressly and by necessary implication, .by ourstatute law, and also by judicial decisions. The defendants’counsel admitted, what could not indeed be denied, that the Roman-Dutch law in Ceylon had been on some points not merely repealed,but impliedly affected by local enaotments (see Rabot v- De Silva 1).But they challenged the proposition that the Roman-Dutoh law hadbeen or could be abrogated or modified by the action of the Courts.The fact that this has been done is, however, incontestable,3 and theprocess has not been confined to this Colony. In South Africa alsoit would appear that the Common law has been modified, not merelyby statutory changes, but by local customs recognized and enforcedby the legal tribunals.3 Although there is no need for us to considerthis aspect of the present case further, in view of the clear proof ofnegligence on the part of the defendants, which is' established by theevidence, I desire to associate myself with the opinion expressed byLascelles C.J. and De Sampayo J. in. Silva v. Silva,* that the rule in.Fletcher v. Rylands 5 must be taken to be in force in Ceylon.
Benson O.J.
KorossaRubber Co.v. Silva
On the question of damages, I have little to add to the observa-tions of my brother De Sampayo, whose judgment I have had theadvantage of perusing. The learned District Judge was justified,for the reasons which he gives, and which it is unnecessaryfor me to repeat, in preferring the estimate of damages made byl^r. Payne, supported as it was by Mr. Keyt’s elaborate and detailedplan of the estate after the fire, to that of Mr. Patterson andMr. Bamber. I agree, however, with my brother De Sampayothat the item of Rs. 5,000 should, on the grounds stated by him,be disallowed.
The main point taken in the plaintiffs’ cross-notice of objectionsto the decree is that, in valuing the trees totally lost to the estate,the learned District Judge has drawn no distinction between thenorth garden, in which he had himself valued the damage on thebasis that each tree was worth Rs. 24, and the south garden, in whichhe had assessed the value at Rs. 19.50 a tree, but has founded hiscomputation on an average value of Rs. 20 for each tree on the estate.I do not think that in a matter of this kind we should be justifiedin disturbing the verdict of the District Judge on the question ofdamages. A similar observation applies with even greater forceto the other minor objections in the plaintiffs’ cross-notice.
I would reduce the damages to Rs. 18,880, and, with that modifi-cation of the decree, I would dismiss both the appeal and the cross-notice of objections. The plaintiffs are entitled, to the costs of theaction and of the appeal.
1 (1909) A. C. 376..* Burge's Colonial and Foreign .
* “ Roman-Dutch La/ui as it prevails inLaw, second ed., vol. I. p.
Ceylon, ” by A. St. V. Jayawardene, 303.
1901.* (1914) 17 N. L. R. 266.
* {1868) L. R. 3 H. L. 300.
( 76 )
KorcviaJitdthe Go.v. Silva
Db Sampayo J.—
In this action, which has been brought in respect of damagecau£fed by fire, there are many questions of great importance fordecision. The plaintiff company are the proprietors of a rubberestate known as Korossa estate, situated at Yatagama in the Districtof Kegalla. It is bounded on the south by the river Maha-oya, andis crossed by the railway line to Kandy. The defendants are theownets of an extensive coconut estate known as Marukwatura estate,to the south of the Maha-oya, and in connection with that estatethey also own two portions of land on the same side of 'the riveras Korossa estate and adjoining it on the east and north. Theportion to the east is about 20 acres in extent, and . is a plantain ~plantation, and was at the time in question in charge of a man namedNicholas Pulle, who occupied a hut there. The portion to the northis chena, of which the jungle was felled by the defendants in thebeginning of 1916, with the vi’ew of clearing and planting the samewith coconuts. On February 24 a destructive fire spread from thedefendants’ land into Korossa estate, and entirely destroyed or badlyburnt several hundred rubber trees standing all over the estate, andaccordingly the plaintiff company claimed from the defendantsRs. 30,000 as damages. It was alleged ip the plaint that thedefendants had by their servants and employes negligently set fireto the jungle on their land, and that, owing to such negligence andthe defendants' failure to take proper precautions, the felled jungleof the chena was set on fire, and such fire spread into Korossa estate.The defendants took issue on this allegation, and further stated thatthe rubber plantation on Korossa estate had been thinned by cuttingdown the trees, and that a spark from a passing train had probablyset fire to these felled trees and the large quantity of dry leaveslying all over the estate, and that the damage was caused thereby.In the alternative they pleaded contributory negligence by reasonof the facts just mentioned. The case of the plaintiff company asdeveloped at the trial was that Nicholas Pulle set fire to a heap ofrubbish or jungle1 near his hut in the plantain plantation; that thefire found its way through a stretch of abandoned plantain planta-tion or jungle above the hut; and that, driven in a westerly directionby the high wind which generally prevails in this part of the year,it quickly caught the felled jungle in the defendants’ chena, andultimately spread from there into Korossa estate. The learnedDistrict Judge, in a very able and exhaustive judgment, decided infavour of the plaintiff company both on the facts and the lawapplicable to the case, and gave them judgment for Rs. 23,880 asdamages, with costs of action. The defendants have appealed fromthis judgment, and the plaintiff company have also given a cross-notice in respect of the amount of damages.^
As regards the facts, the evidence which the 1 learned DistrictJudge has recorded and discussed at length in his judgment leaves
( 77 )
no room lor doubt that the fire originated in the defendants’ plantainplantation, and took a north-westerly course and entered Korossaestate at some point or points in the northern boundary as allegedby the plaintiff company. The suggestion on behalf of the defend-ants that the fire was caused by a spark from a railway engine fallingupon the dried rubber leaves on Korossa estate, or on the felledjungle on the defendants’ land, and that the fire then spread from oneland into the other,, and that in either case the injury caused was theresult of an accident or wrongful act of a third parly, receives nosupport from the evidence, I think the District, Judge is right inholding that a heap of rubbish or jungle was deliberately set fire toon the defendants’ plantain plantation near Nicholas Pullo’s hut,and that this was the origin of the whole conflagration. The onlyquestion is whether it was Nicholas Pulle who set fire to that heap.The evidence bearing on this point consists of the oral evidence ofJuan Appuhamy, kangany of Korossa estate, and the Arachchi ofWalgama, and of the written report of the Korala since deceasecJuan Appuhamy said* that Nicholas Pulle did not come to Korossa-
or give any help while the fire was going on, byt later on pointed oufa burnt spot at the back of his hut. The Gan-Arachchi, who wasthe first headman to be brought to the scene of the fire, questionedNicholas Pulle, who stated that he had that morning set fire to aheap of rubbish, but could not say that the fire extended to the chena.The Arachchi, in viey of the gravity of the matter, wanted his superiorofficer, the Korala, to be called in, and accordingly the next day theKorala came and made inquiries and subsequently made a report,in which he stated, among other things, that Nicholas Pulle admittedat the inquiry that he had set fire to a strip of jungle on the estateon which he was living.” I have looked into the original-report-andI find that the expression which has been translated as. “ strip ofjungle ” is roda, and really means scrub, and may be intended tomean rubbish or dried jungle stuff collected into a heap. TheArachchi’s evidence and the Korala’s report as to the statementsmade by Nicholas Pulle were objected to in the Court below as beinginadmissible, and the same objection is urged before us. Neitherside was able to reach Nicholas Pulle, who disappeared within acouple of days after the fire. Under section 32, sub-section (3), ofthe Evidence Ordinance, No. 14 of 1895, the statements made by
Nicholas Pulle will be admissible if he cannot be found. A sub-poena was issued on him to attend as a witness for the plaintiffcompany, but was.returned unserved, the process server statingin his affidavit that he could not find I rim at the estate (whichwas his last known place of abode), and hat no one could sayanything as to him. At the trial M. B. Daniel, conductor of thedefendants’ estate, was called as a witness by the plaintiff company,and in cross-examination by counsel for the defendants themselveshe said that Nicholas. Pulle took leave and went away and did not
( 78 )
Db SumtoJ.
KoroseaRubber Co.v. Silva
return and added, “I cannot say whether he was an Indian Tamil.He cannot now be found.” The defendants’ counsel explained tous that this was elicited in cross-examination, as there had been aSuggestion that Nicholas Pulle was purposely kept away by thedefendants, and he frankly admitted that he probably told the Courtthat the defendants were unable to call Nicholas Pulle because theydid not know where he was. The District Judge says in his judg-ment that it was admitted that Nicholas Pulle could not be found,and, even apart from any admission by counsel, I think that underall the circumstances, and especially in view of the evidence of thedefendants’ conductor Daniel, it must be concluded that NicholasPulle could not be found for the purposes of the trial. 1 may hererefer to an objection taken to the Fiscal’s return to the subpoena. Itwas said that the Court could only look at the return to see whetherthe subpoena was served or not, but could not recognize the reasongiven in the process server’s affidavit, but that the process serverhimself should have been called. The Indian case, The Emperor v.Rochia Mohato,1 which was cited does not support the contention;on the contrary, the whole return appears there to have been utilizedfor the purpose of ascertaining what efforts, had been made to servethe process. Re Asmavi Muthirigan 2 is still less applicable. Thatwas a case under section 33 of the Evidence Act, which requiresthat, before admitting a deposition in evidence, the Judge shouldsatisfy himself that the witness cannot be obtained without anamount of delay or expense which he. considers to be unreasonable.What the Court decided in that case was that the Judge should notmerely accept the statement of counsel on this point, but shouldhave evidence before him upon which to satisfy himself. In myopinion the Court may, and even should, look at the Fiscal’s returnas a whole, in order to find out the reason why its officer has notexecuted its process. In this connection reference may be made toHigham v. Ridgway,3 which is an authority for saying that wherethe contents of a document are connected together, and where astatement is only explainable by the context, the whole documentshould be admitted. A further ground on which the statementsof Nicholas Pulle can be admitted in the circumstances of this caseis that they were against his pecuniary interests, or that they wouldexpose him, or would have exposed him, to a criminal prosecution orto a suit for damages. That they would have exposed him to a suitfor damages, whatever their effect might be on the position of hismasters, the defendants, admits of no doubt. I am myself furtherinclined to think that the reason for this exception to the ruleagainst the admissibility of hearsay evidence requires that the .personmaking the statement should be conscious of the fact that he wasexposing himself to criminal or civil liability. The circumstances
1 (1881) I. L. R. 7 Cal. 42.8 (1916) 1. L. R. 39 Mad.449.
10 East. 109.>
( 79 )
of this oase satisfy me that Nicholas Pulle was conscious of thatfact. Itwasto him that both those in charge ofKorossa estate
and thetwoheadmen, when they made inquiries,lookedas the
party responsible for the origin of the fire. The report of the Korala,which was given for the purpose of an action to be instituted, evennames him as a " defendant.*' The circumstance that he carefullyabstained from coming forward and helping in the putting out of thefire, and that he soon disappeared altogether, points in the samedirection,andshows that he was apprehensive of acertainrisk to
himself.It remains to consider another point withregardto the
admission of the Korala’s report. He died before the trial of thisaction, and the question is whether and how far the report is ad-missible as a statement made by the Korala “ in the ordinary courseof business ” or “ in the discharge of professional duty ** within themeaning of section 82, sub-section (2), of the Evidence Ordinance.A Korala is an officer mostly concerned with inquiry into crime and■with the Government revenue of his division, but although nothingis disclosed in this oase as to his duties in connection with civildisputes between private parties, it is well known that a headman is,as a matter of fact, called in officially on such occasions, and givesreports as to the result of immediate inquiries made by him, and hisevidence at the subsequent legal proceedings is desiderated both bythe party and the Court. I should be surprised if the Korala andthe Arachchi were not informed and did not act on the occasion ofsuch an extensive fire as this. In my opinion the Korala’s reportmust be taken to have been given “ in the ordinary course ofbusiness,” if not “ in the discharge of professional duty.** Thelast point of law is whether the statement of Nicholas Pulle embodiedin the report is admissible, because it is said to be double hearsay.I have already expressed my opinion in another connection thatthe whole context ought to be looked at, especially where one partis required to explain another. Under the English law of evidencethe general rule appears to be that only so much of a statement isadmissible as was necessary for the person concerned in the ordinaryoourse of business to make, and not so far as it contains collateralmatters. Chambers v. Bernascion.1 But this restriction has nooperation under the Indian Evidence Act or under our EvidenceOrdinance. The fact of the matter being collateral goes not to theadmissibility of the evidence, but to its weight. See the judgmentof the Privy Council in Zakeri Begum v. Bakina Begum.2 Thatdecision is of special importance. There the register of marriageskept by a deceased Muhammadan priest was admitted to prove theamount of dower promised' to the bride. The report shows that thepriest entered this particular in the register from the statementsmade in his presence and in answer to his questions by the personsconcerned at the time of the celebration of the marriage. In the11 C. M. R. 347.■ (1892) 7. L. R, 19 Cal 689.
' Db SaxpatoJ.
KorosSaRubber Co.v. Silva
( 80 )
Db SwfatoJ.
KoroasaRubier Oo.'v. Silva
present case the statement made to the Korala in the course oi hisinquiry as to the cause of the fire is hardly a collateral matter; itrelates to the very business in hand, and is, I think, admissible onthat ground. But, in any event, the above decision of the PrivyCouncil appears to me to justify the admission of the statementmade by Nicholas Pulle to the deceased Korala dining the investiga-tion into the circumstances of the fire.
It is, however, not absolutely necessary for the plaintiff companyto prove that it was Nicholas Pulle who set fire to the heap of rubbishor jungle. It is sufficient to show that the fire originated on thedefendants’ land. There is generally a presumption that every fireoriginating upon' a person’s premises, the original kindling of whichcannot be traced, was kindled by the owner of the premises or by hisservants, for whose acts he was responsible. In the absence of anyproof, as in this case, that the fire was due to the unauthorized actof a stranger, it will be presumed to be his fire. Becquet v. Maoarthey,1per Lord Tenterden C.J. It is contended in this case that, evenso, the law applicable is the Roman-Dutch law, ahd that on theprinciples of that law the defendants are not liable unless there wasnegligence. The references made are to Voet 9, 2, 19, Nathan'sCommon Law of South Africa, vol. 2, p. 1783, and Maasdorp’sInstitutes of Cape Law, vol. 4, p. 60, but these authorities do nothelp the defendants, even if the Roman-Dutch law as therein statedis to be applied. They all regard the burning of stubble or weedson a windy day, without taking precautions to keep the fire withinbounds, as a negligent act, for which the person who does it is liableto his neighbour into whose land the fire may spread. This isexactly what happened on this occasion. There was a high wind,characteristic of this part of the year; the defendants had on theirchena a great quantity of inflammable material in the shape of dryleaves and trees, and they left no sufficient belt of uncleared junglebetween their land and Korossa estate as a precaution against thespreading of a fire. Therefore, if negligence must exist, there wasnegligence on their part. But the truth appears to be that, sincenegligence is a matter of presumption, there is no essential differencebetween the English law and the Roman-Dutch law in regard tcliability to damage caused by fire. In Eastern and South AfricanTelegraph Co. v. Capetown Tramways Co.,2 where it was argued thalthe principle of Fletcher v. Hylands 3 had no place in the Roman-Dutch law, Lord Robertson, who delivered the judgment of the PrivyCouncil, said: “ Their Lordships are unable to find adequate groundsfor this view, and it was not maintained at the Bar. It is noisupported by the texts or decisions which illustrate the full recogni-tion of the right of an owner freely to use his property for naturalpurposes, even though loss to his neighbour may result. Nor; on .
1 (1331) ZB.& Ad. 958.
•( 1868) L. R. 3. B. L. 330.
(1902) A. C. 381.
( 81 )
the other hand, does the prominence given to culpa in Boman lawpreclude the reception of the doctrine now under consideration intolegal systems founded on the civil law." This decision, it is true,was commented on in Union Government v. Sykes1 by Lord deVilliers, who thought that the opinion there expressed was obiterdictum. But his own view in that case was likewise obiter, inasmuchas the case was decided on the finding of the majority of the Judgesthat the presumption of negligence had been negatived by thedefendant by evidence. However this question may stand, I thinkthat the principle of Fletcher v. Iiylands 2 has been adopted in Ceylon,and must be considered as governing such cases as the present. Itmust be remembered that it is not the whole body of Boman-Dutohlaw, but only so much of it as may be shown or presumed to havebeen introduced into Ceylon, that is now applicable here. We mustalso recognize the process of evolution, since the British occupation,by the tacit adoption of English principles in various legal matters.Such subjects as personal obligations arising from delicts or torts arepeculiarly liable to the effect of such a process. Accordingly we findthat in Elphinstone v. Boustead3 the Full Bench of the Supreme Courtdeclared the law as to damage caused by such an element as fireto be that enunciated in Fletcher v. Rylands.2 ' The English lawwas again applied in Babun Appu v. Sinno* and Fletcher v. Rylandswas referred to. There are other cases which involved other points,but the applicability of the English law seems never to have beenquestioned. See, for instance, Ghristombo Allis v. Pitche Cando,sCorea v. Saul Hamidu,6 Schokman v. De Silva.7 The point, however,was directly raised in Silva v. Silva,3 and it was expressly held thatthe English law must be taken to prevail in Ceylon.
It is, perhaps, convenient now to notice an argument raised on aminor point. It appears that the defendants' chena to the north ofKorossa estate was entrusted to a villager named Boyagoda Bandara,for the purpose of cutting down the jungle and clearing the land forcoconut plantation, on the well-known terms that for his trouble heshould have a share of the minor products which, as usual, might beraised in the land- It was said that Boyagoda Bandara was an" independent contractor,” and that any act or negligence on his partwould not affect the plaintiffs. This point is not quite relevant, forthe fire as found did not originate in the chena, but in the adjoining' plantain plantation, which was in charge of Nicholas Pulle. In anycase Boyagoda Bandara was in no sense an “ independent contractor,"but was a person employed to do a certain work for remunerationor hire in kind; and, moreover, there is nothing to show that thedefendants in their arrangements with Boyagoda Bandara haddeprived themselves of the control which a landowner ordinarily
De SampayoJ.
KorossaRubber Co.v. SUva
S. L. R. (1913) A. D. 161.5(1877)8 S. C. C. 95.
(1868) L. R. 3. E. L. 330.*(1915)1 C. W. R. 110.
» Ram. (1872-76) 268.7 (1915)1 C. W. R. 205.
(1879) 2 S. C. O. 90.3(1914)17 N. L. R. 266.
( 82 )
Rubber Go.v.Stiva
retains and exercises in such cases. Ghristombo Allis v. Pitche Gandoand Schokmm v. Be SUva (supra) are direct authorities against thedefendants on this point.
It was also argued on the authority of such cases as Rickards v.Lothian1 that a person was entitled to use fire for natural andordinary purposes without incurring any liability. But I do not,agree that setting fire to a jungle is an ordinary operation. It is, if'anything, an extraordinary operation, though it is true that burningis the usual method of clearing jungle lauds for plantation, and Ithink the use of fire for such a purpose is not a natural use in thesense contemplated by the decisions referred to. But the sameauthorities show that, in the case of natural use of fire or water, allreasonable precautions should be taken to prevent injury to theneighbour's property. The defendants have made no attempt toprove that such precautions were taken in this case, and I havealready alluded to the facts which point to the contrary.
The plea of contributory negligence may be disposed of in a fewwords. It is true that a number of felled rubber trees and a largequantity of dropped leaves were lying at this time on Korossa estate.The extent of the damage might probably have been less if thismaterial did not exist, but there is nothing to show that the damagecould have been wholly avoided. Certainly it was impossible for theplaintiff company to remove the trees or the leaves at the time of thesudden outburst of fire. In my opinion the negligence, if any, wastoo remote to furnish any defence on that score. Moreover, it is inevidence that in wintering time, as this was, a large quantity of leafdrops on every rubber estate, and is generally allowed to remain androt and become gradually absorbed into the ground. Even if theremoval of this material was possible under the circumstances, thedefendants had failed to give the usual notice of their intention to- setfire to any jungle; though their responsible agent had been warnedand had promised to give such notice. I think the defence ofcontributory negligence fails.
There remains the question of damages. I have no reason todisagree with the District Judge as regards the extent of injury doneto Eorossa estate and the assessment of damages generally. Butthere is one item which requires consideration. He has alloweda sum of Rs. 5,000 under the head of “ indirect loss" due (1) toincreased working expenditure on a reduced crop, (2) .to generaldepreciation, and (3) to the necessity of cutting out the damagedtrees and re-planting. I do not think, however, that, having regardto the method of assessment, this item should be wholly allowed.The District Judge has taken the value of the totally damaged treesat Rs. 20 per tree, and capitalized it on a basis of six years* purchase,and on that footing he has allowed a sum of Rs. 17,000. He hasalso allowed two sums of Rs. 1,560 and Rs. 320 in respect of the loss
1 (1913) A. C. 263.
( 88 )
of crop from the trees set back or slightly damagec. This meansthat he has restored the plaintiff company to the same positionas if they had an undamaged estate. Therefore, the constantcharges and working expenses are hypothetically the same as before.Consequently, I think, no allowance ought reasonably to be made inrespect of the increased cost of production on the undamaged trees. Itshould be noted also that the plaintiff company are getting at oncea lump .sum as the value of the damaged portion of the estate, andthe interest thereon should likewise cover the proportion of workingexpenditure. The District Judge has not separately allocated theindirect loss due to general depreciation and the expense of cuttingout trees and re-planting, but from the estimate submitted byMr. Payne, the superintendent of Korossa estate, I gather this willbe represented by a comparatively small sum. In any case, I thinkfor the reasons already given, any such sum should come out also.
I would modify the decree by reducing the damages to Es. 18,880.Subject to this modification, I would dismiss both the appeal andthe cross-notice of objection. Considering the nature of the appeal,I think the plaintiff company are entitled to costs of appeal.
Da Saxpato,
KorossaRubber Co.«. Silva