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Present: Fisher C.J. and Drieberg J.
PODISINGHO v. JAYATU el al.
197—D. C. Negombo, 2,271.
Lex Aquilia—Action by executor for obstruction to right of way—Loss ofprofessional income to the deceased—Patrimonial loss.
Where in an action for damages for obstruction to a right ofway, the executor of a deceased person included a claim for loss ofprofessional income caused to the deceased by his having beendeprived of the use of the road,—
Held, that the claim for loss of professional income could notbe maintained.
HIS was an action brought by the plaintiff as legal representa-tive of his deceased father to recover damages against
the defendants for interference with a right of way to which thedeceased had established a claim. The learned District Judgegave judgment for the plaintiff. The main question considered inappeal had reference to the item of damage arising from the lossof professional income caused to the deceased by the obstruction.
Zoysa, K.C. (with Croos DaBrera), for defendants, appellant.
H. V. Perera (with L. A. Bajapa&se), for plaintiff, respondent.
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December 4, 1928. Fishes C.J.—
In this case, in my opinion, the claim by the plaintiff suing aslegal personal representative of his deceased father for damagesdue to loss of professional income is misconceived. He claimsdamages based on the undoubted interference by the defendantswith the right of way to which the deceased man had establishedhis claim. The only item of damage which we have to consideron this appeal is the claim based on loss to the estate by reasonof the deceased man’s practice as a Vedarala having suffered fromthe difficulty, or lesser facility, of approaching his house by reason ofthe obstruction by the defendants to the right of way. No doubtthe obstruction was a tortious act, and direct damage to an estateresulting from a tortious act can form the basis of an action by arepresentative of the estate. But assuming that the evidencegoes to show that this loss of practice did in fact take place,it seems to me to be impossible to say, still less to prove, thatthere was any necessarily consequential damage to the estateresulting from the obstruction, and I do not think it can be madethe basis of a claim by the administrator for damage and lossto the estate. The law in England (as to which see Pulling v.The Great Eastern Railwayx) and the law in Ceylon seem to be thesame on this point.
The judgment therefore will be set aside, and I agree with theorder suggested by my brother Drieberg.
As regards costs the evidence clearly indicates that the defendantsacted in an arbitrary manner. The learned Judge says “ in spiteof Court decrees they persisted in blind pigheaded opposition.”I think they should pay the costs of the action. The respondentmust pay the appellant’s costs of the appeal.
I agree that the claim for alleged loss of professional incometo the deceased caused by the defendants depriving him of theuse of the road to his house is not one which the executor of hiswill can maintain.
There is not, so fax as I am aware, any local case in which thisquestion has expressly come up for decision.
In Weerasiri v. Sanchihamy2 the executrix of the will of adeceased person was sued for damage done to the plaintiff’sbuildings by the deceased excavating on his own land and wrong-fully depriving the plaintiff to the right of lateral support from theland of the deceased. Lawrie and Withers JJ. decided thequestion on the ground that the liability of a legal representativefor such a tort was to be decided by the law of England and thatthe action was barred as it had not been brought within six months»(1882) 9 Q. B. D. 110.8 (1892) 11 S. C. R. 69.
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of the executrix taking on herself the administration of the estate,as provided by the Statute (3 <fe 4 Witt. IV. c. 42, a. 2); this pointhas not come up since for consideration and I doubt whetherit can be said that the question is governed by the English lawrelating to executors and administrators.
It has been held that the effect of section 27 of the Charter of1833 was to introduce into Ceylon the law of England governingthe powers and duties of executors and administrators with theaddition that these powers extended to real as well as personalproperty (D. C. Gcttte No. 28,25s1); but whether rights of actionfor delicts can be transmitted or whether they cease on the deathof the party injured or of the wrongdoer are not questions concernedwith the powers and duties of executors and administrators of anestate, but they are questions of substantive rights and liabilitiesregarding persons and property which must be governed by theCommon law. This aspect of the matter does not appear to havebeen considered in Weerasiri v. Sanchihamy (supra).
Under the Roman-Dutch law, in the case of delicts of this sortwhich fell under the Lex Aquilia the right of action- does not,as in the case of the action of injury, lapse on the death of theperson injured before litis contestatio but enures to the benefitof his heirs, and they can sue the wrongdoer to recover what isknown as “ patrimonial loss ” (de Villiers on Injuries, pp. 182,235, 236); and Maarsdorp (Institutes of Cape Law, 1909 ed., p. 20)says that it must be shown that the estate has been prejudicedor suffered some appreciable pecuniary loss and this loss has to beexplicitly and specifically proved.
From the notes on the case of Engelbrecht v. van der Mence2 inVol. III. of Nathan, 1906 ed., p. 1596, and de Villiers on Injuries,p. 235, it appears that what has to be proved is not loss to thedeceased but loss to the estate, and the two are not necessarilythe same.
It seems to me that the Roman-Dutch law is the same as thelaw of England after the exception created by the Statute of 4 Edw.III. c. 7 to the Common law rule of actio personalis moritur cumpersona, under which an action for tort must be begun and theverdict obtained in the joint life-time of the injured party and thewrongdoer; if either dies before verdict, the action abates andcannot be continued or recommenced by the representativesof the deceased. Under this statute an executor or administratorcould maintain an action for injury done to the personal estateof the deceased in his life-time whereby it has become less beneficialto the executor or administrator. See cases noted in Wheatley v.Lane.3
1 Vanderstraaten’s RepdHs, 273.2 10 Natal Law Reports (ns,), 117.
3 1 Saunders 216a, at 217b (/).-
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This is the same as the Roman-Dutch Law and is just what ismeant by patrimonial loss.
In Putting v. The Great Eastern Railway1 the plaintiff was injuredby an engine of the defendants, and after his death, which wasnot the result of the injury, his administrators sued for medicalexpenses incurred and loss of wages owing to his injuries preventinghis obtaining employment until his death. It was held that theplaintiff could not recover as the case was not one of tortiousimpairment of the personal estate of the deceased.
In Twyeross v. Grant * the deceased bought shares on a fraudulentrepresentation in a prospectus. He brought an action based onfraud and he died while the action was pending. His executorwas allowed to continue the action. It was held that this wasa case which fell within the statute, for the shares, for which alarge sum had been paid, were practically valueless. The wordsof Cotton L.J. that “ there is a great difference between a tortwhich necessarily causes damage to the personal estate and a tortwhich may injure the testator’s estate but does not necessarilydo so ” apply well to the present case, for it by no means followsthat the income which the deceased might have made if he hadthe use of the road would necessarily have formed part of hisestate on his death.
The respondent has not proved the other matters in respectof which damages are claimed. As executor, however, he itentitled to a decree ordering the appellants to give over the roadto him and for damages for failure to do so from the death of theVedarala, viz., December 11, 1927. The respondent claimsdamages for this period at the rate of Rs. 50 per month. This isclearly excessive, being the same rate claimed for the specialdamage done to the Vedarala’s professional practice. I thinkthe sum of Rs. 20 per month will be sufficient and will also enablethe respondent to bring this road into a serviceable condition.
The judgment of the District Court is *set aside and judgmentwill be entered ordering the appellants to surrender this road tothe respondent and to pay him damages at the rate of Rs. 20per month from December 11, 1927, until surrender of possession.
The respondent is entitled to his costs in the District Court,but he must pay the appellants the costs of this appeal.
Decree varied.* (1878) 4 C. P. D. 40.
» (1882) 9 Q. B. D. 110.
PODISINGHO v. JAYATU et al