038-NLR-NLR-V-06-KUTTALAM-CHETTY-v.-VELU-CHETTY.pdf
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KUTTALAM CHETTY v. VELU CHETTY.
B., Colombo, 14,065.
Statutory duty—Neglect to perform—Damages to private person arising fromsuch neglect—Failure to fence a well—Ordinance No. 37 of 1884, s. 3—Death by fall of bull into well—Bight of owner of bull to claim damages.
1902.
October 21and 30, andDecember 8.
Where a new duty is created by statute with a penalty for notperforming it,the question whether arightof action is givenbythe
creation of the new duty depends upon whether it appears from the termsof the statute that the intention was by the mere infliction of a penaltyto protect thepublic and deter personsfromcommitting breachesofthe
statutory duty,or to give a right ofactionto persons injuredbythe
default complained of.
The Ordinance No. 27 of 1684, section 8, having imposed a duty uponthe occupier of land on which a well is to cause it to be securely fencedand provided for a penalty for a breach of that duty,—
Held, that the owner of a bull which had fallen into and died in a wellsituated on a land which was occupied by the defendant, who had leaseda portion of such land to the plaintiff, the owner of the bull, was entitledto recover damages from the defendant, hehaving failed to fulfilhis
duty imposed by law to fence the well.
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HE facts of this case, and the authorities cited by counsel,appear in the judgment of the Court given below.
W. Pereira, for plaintiff, appellant.
Aserappa, for defendant, respondent.3rd December, 1902. Moncrkiff, J.—
Cur. adv. vult.
The plaintiff sues for damages. The Judge finds that, if thedefendant is liable, Bs. 75 is a fair sum to pay by way of damages.The plaintiff became the defendant’s tenant in a part of premisessufficient to allow a chekku being turned; also in a cattle shedstanding on the same premises, with the user of the open groundin the said premises. The use of the ground, which appears tohave been for the benefit of his cattle, was enjoyed by the plaintiffin common with other persons, who were tenants of the defendant.The premises bear assessment No. 70, Silversmith street, Colombo.The defendant is the lessee of the premises; he is in possession ofthem, and occupies a house upon them. The plaintiff says thatthe defendant left open and unprotected a pit which had been dugfor a chekku to be used by one Narayanan Chetty, who is also atenant of the defendant, and~that, in consequence- of the negligencepf the defendant, the plaintiff’s bull fell into the pit and died. TheCommissioner finds that the defendant did not dig the pit;
2 A
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1902.
October 27and 30, andDecember 3.
Monckbiff,
J.
Narayanan says that he dug it. If the ease rested there, 1 shouldnot interfere with the judgment of the Commissioner, which is infavour of the defendant.
We have, however, to consider the terms of Ordinance No. 27 of1884, which the Commissioner passes by without comment. Sectionp of Ordinance No. 27 of 1884 imposes a duty upon the occupier ofland upon which there may be now or at any time hereafter anywell or artificial pit—whether he has or has not received noticeunder section 9, and whether the pit or well is in use orabandoned—“ to cause the said well or artificial pit to be securelyfenced to the height of two and a half feet above the level of theground, unless any such well or artificial pit shall be so securelyfenced already.”
By virtue of section 2 ‘‘the occupier ” means the person in theactual occupation of the land, that is, in this case, the defendant.
The Ordinance is “to provide for the due protection of wells andartificial pits in this Colony. ” The preamble reci.tes that it isexpedient to provide against accidents arising by reason of wellsand artificial pits in this Colony being insufficiently fenced roundor otherwise protected.
The Ordinance provides machinery for compelling the occupierto fence pits and wells in accordance with the duty imposed uponhim, and section 13 provides for the infliction of a penalty for“ a breach of any obligation imposed by this Ordinance.” Thequestion is whether section 3 of the Ordinance created a duty forthe non-performance of which the exaction of a penalty is the onlyremedy, or whether the duty is one which gives a right of actionto persons who are injured by the neglect of those who commitbreaches of obligations imposed by the Ordinance.
The older and somewhat conflicting authorities seem to havebeen discussed in Atkinson v. Newcastle Waterworks Co.Each. -Div. 449), where it was laid down that, when a new duty iscreated by statute with a penalty for not performing it, thequestion whether a right of action is given by the creation of thenew duty depends upon whether it appears from the terms of thestatute that the intention was by the mere infliction of a penaltyto protect the public and deter persons from committing breachesof the statutory duty, or to give a right of action to personsinjured by the default complained of.
The answer to the question depends, according to Lord Cairns,upon What the particular statute is, and what the purview of theLegislature was.
,The principle stated by Lord Cairns was followed in Passmorev. Oswaldtwistle Council {1898), A. C. 894, when Lord Halsbury
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cited with approval the words of Lord Tenterden in Doe v. Bridges 1902(I B. & Ad. 859):“Where an act creates an obligation andand
enforces the performance in a specific manner, we take it to be a December 3.general rule that performance cannot be enforced in any other monobeitfmanner. ” The same principle is followed in Johnston A Go. v. J.Consumers’ Gas Co. (1898), A. C. 454, where, however, the wordsof Lord Cairns in Atkinson v. Newcastle Waterworks Co. areagain adopted. Looking to the decisions in these cases, I think,with some diffidence, that I should not interfere with the Com-missioner’s judgment.
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