040-NLR-NLR-V-59-P.-S.-PERERA-Appellant-and-H.-JANIS-PERERA-Respondent.pdf
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T. S. FERNANDO, J.—Perera v. Per era
-1957 Present : H. N. G. Fernando, J., and T. S. Fernando, J.
P.S. PERERA, Appellant, and H. JANIS PERERA, RespondentS. G. 460—D. G. Panadura, 4,29S
JDelict—Irrigation headman—Seizure of cattle by him—His liability as bailee forreward—Burden of proof—Cattle Trespass Ordinance (Cap. 331), s. 7.
An Irrigation headman who takes chargo of trespassing cattle in terms ofsection 7 of the Cattle Trespass Ordinance is in the position of a bailee forreward, and is liable to the owner of the cattlo if, owing to absence of duodiligence on his part, they are lost or stolen while they are in his custody. The .onus is on him to prove that he exercised due diligence.
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-^^-PPEAL from a judgment of the District Court, Panadura.
Sir Lalita Rajapakse, Q.G., with D. G. W. Wickramase.lce.ra, for theplaintiff-appellant..
T. P. P. Goonetilleke, with P. Somalilakam, for the defendant-respondent..-
•Cur. adv. vult.
September 25, 1957. T. S. Fernando, J.—•
This appeal raises the question of the nature of the liability of a head-man towards an owner of cattle in respect of cattle taken charge of by himin terms of tho Cattle Trespass Ordinance (Cap. 331), but lost whilethey are still in his custody.. It has been stated at the Bar that there isno local case in which the nature/and extent of" this liability has beendiscussed.:-?;•c,.. : . '.1 ■•"- ' -:
13 4■.. :T. S. FERNANDO, J .—Perera v. Per era
– The relevant facte may be summarised very briefly thus :—–
The plaintiff had lent several buffaloes to a man called Babun to heused.for the purpose of ploughing certain fields. Four of these buffaloeshad been seized by one Jinoris on the allegation that they had got onto his lands and dam aged his crops. Jinoris gave notice of seizure on8th January 1954 to the defendant, the Vel Vidane of the area and ahIrrigation headman within the meaning of section 7 of the Cattle Tres-pass Ordinance." – The defendant, as he is required to do under'the saidOrdinance, went to Jinoris’s land where the buffaloes were being detainedand, with the aid of assessors, assessed the damage caused to Jinoris’scrops ; and, as the owner or owners of the buffaloes were not then known,took charge of the animals and had them brought over by about 7 p.m;that same evening to his own residing land. According to the defendant’sevidence, which the District Judge has accepted, the animals were tiedclose to his house which was enclosed on all sides bjr barbed-wire fences. -He retired to sleep, but at midnight he got up and looked through anopen window of his bedroom and was able to see that the animals werestill there where they had been tied on his land. He woke up againat 4 a.m. and looked out of his window only to discover that the animalshad disappeared. He then found that the barbed wire had been cutat one place and he concluded rightly that the animals had been stolenfrom the premises. Babun, learning of the seizure of the buffaloes,came in search of them to the house of the defendant on the 9th January,but by the time he came the buffaloes had, of course, been stolen. Therehas since been no trace of these stolen buffaloes..
The learned District Judge has stated correctly that the question fordecision is whether the buffaloes, while being in the custody of thedefendant, were lost or stolen by reason of the negligence of the defendant.He has, in the course of his judgment, referred to certain . relevantRoman-Dutch law authorities, but has dismissed the plaintiff’s actionon the ground that the defendant has not been negligent in any degreein looking after the buffaloes while they were in his custody. The loss ofthe buffaloes, according to the learned Judge, was occasioned by an actbej'ond the defendant’s control.■
If a Government officer fails to perform what is ordinarily part of his.duty or what he has specially undertaken to perform, he will be heldanswerable for his negligence—see Nathan’s Common Law of SouthAfrica, Vol. Ill, page 1718. The liability of a person for doing negli-gently a thing which he is legally under a duty tc do is formulated in thesame treatise, at page 1744, as follows :— .
“ It has been shown that, in the law of contract, the degree of negli- ,gence which is required in order to render a man liable varies accordingto the special contract which is in question, such as sale, lease, agencyor bailment. In the law of torts no such careful distinction is made. : -If a duty is by law imposed on a person to do a. thing, and he performshis duty negligently, and thereby injures another, he is liable evenif he was guilty* of slight negligence only … Consequently,
in the law of torts, it is sufficient if there has been a want of due
T. S. FERXAXDO, J.—Per era v. Perer.a
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diligence on the part of the person charged with negligence. Theremust be just sufficient proof to indicate that the damage complainedof arose from negligence, and riot from mere accident.” .
In Nathan’s Law of Torts (1921 ed.), at page 266, the learned author,discussing the liability' of a poundmaster, states that “ a poundmasterby virtue of his office has the duty imposed upon him of taking care ofall animals impounded and entrusted to him. He has to obey all statutoryregulations with regard to pounds. In addition, his position at commonlaw is that of a bailee for reivard, who must take the utmost care of whatis entrusted to him. If a poundmaster deals with animals entrustedto him in the manner in which such animals are ordinarily and custo-marity dealt with, and during the course of such dealing injury resultsto the animals without negligence on his ■part, he is not liable ….But the poundmaster must exercise a high degree of diligence, and theonus is upon him to disprove even the slightest negligence on his partin dealing with the property in his custody.”
The defendant, as a headman of the class referred to in section 7 ofthe Cattle Trespass Ordinance, was entitled to the fair and reasonable "costs and charges for keeping the buffaloes during their detention, and,in my opinion, there is no reason why his position should not be regardedas being analogous to that of a bailee for reward. The nature of theliability- of a bailee for reward is stated also in Wille’s Principles of SouthAfrican Law Mth ed., 1956) at page 427 as follows :—.
” If the deposit is for reward, it is clear that the depositary is liablefor any degree of negligence, unless by express agreement the propertyis stored at ‘ owner’s risk If the depositary does not return theproperty at all, or if he returns it in a damaged condition,-the onusis on him to prove, by a preponderance of probability, that the loss ordamage was occasioned despite the exercise by him of due diligence,whether the contract is gratuitous or for reward.”
There is no definite test in all cases to show whether a person has beenguilty of negligence. The question whether a person'has been negligentor not will depend on the circumstances of the particular case. In thiscase, the defendant brought the buffaloes and tied them near his house.What care did he take of them ? He stated that he tied them close to hishouse and retired to sleep. He stated that he had asked a man to sleepon the verandah of his house as was his custom when he detained anyanimal in his premises. This man has not been called as a witness.We do not know whether he watched the animals at night; we areentitled to assume, on the defendant’s own evidence, that all this mandid was to sleep on the verandah. A watcher can hardly be said to havebeen on watcliing duty if he was actually sleeping. As learned counselfor the plaintiff pithily put it, a watcher’s duty is to watch and not tosleep. The defendant himself had had a busy day on 7th January inconnection with an application he had made to be appointed a VillageHeadman, and he has been busy on Sth January as well. In’ thesecircumstances it is not unlikely that the defendant himself was enjoyinga well-earned sleep on the night of the Sth January ! But even oh an
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SINNVETAMBY, J.—Nadaraja v. Tfie Attorney-General •'‘
acceptance, of his evidence it can scarcely be contended that the•defendant’s own conduct in getting up once that night—at aboutmidnight—constituted the exercise of due diligence in preventing theJoss of the animals.'
. I am unable to resist the conclusion that the.loss of the animals was•occasioned by an absence of due diligence on the part of the defendant. ’
The plaintiff’s evidence that the buffaloes are worth Rs. 800 was not■contested. I would therefore set aside the decree dismissing the plaintiff’s-action and direct that judgment be entered for the plaintiff in a sum ofRs. 800 with costs in both courts.
H. N. G. Fernando, J.—I agree.
Appeal allowed.