SAMED v. SEGUTAMBY

100-NLR-NLR-V-25-SAMED-v.-SEGUTAMBY.pdf


( 481 )
Present: Bertram C.J. and Garvin and Jayew&rdene A.JJ.SAMED v. SEGUTAMBY.
358—D* C. PutUtiam, 3,543.
Use of fire in agricultural operations—Spread of fire to neighbouring land
—Action for damages—Has plaintiff to prove negligence on the
part of the defendant ?—Contributory negligence,
The defendant cut down the jungle on his land and set fire to itin the course of some agricultural operations. The fire spreadto the plaintiff’s land and damaged his plantation. The plaintiffalleged negligence on the part of the defendant, and claimeddamages. The defendant pleaded contributory negligence on thepart of the plaintiff in exculpation.
A 6trip of 30 feet was cleared and reserved on the boundary ofthe plaintiffs land in the direction in which the fire would naturallybe carried by the prevailing wind.
Plaintiff himself cleared a corresponding portion on his own landas an additional precaution* Neither side took the precautionto clear a strip to prevent the fire spreading in the event of adefection of the wind. The fire spread sideways, and got out ofcontrol.
The District Judge held that plaintiff had entirely failed to provenegligence on the part of the defendant; that the defendant hadtaken all necessary precautions; and that the spread of the firewas due to inevitable accident which could not be prevented byreasonable foresight. He also found that there has been contribu-tory negligence on the part of the plaintiff, and dismissed plaintiff’saction. The plaintiff appealed.
Held, that in an action for damages resulting from the spread offire in the course of agricultural operations, the plaintiff mustprove negligence on the part of the defendant.
It is not for the defendant to prove due diligence, but for theplaintiff to prove negligence ; but in some cases negligence may beinferred from the fact itself*
Held, that in the circumstances of this case negligence may beinferred from the facte themselves. There was no contributorynegligence on the part of the plaintiff.
The Roman-Dutch law on the subject governs the rights ofparties. Even if the English Common law is applicable to this case,there must be proof of negligence on the part of the defendant,and such negligence may be inferred from the facts andcircumstances in the absence of direct evidence.
The proposition that the Roman-Dutch law, pure and simple,does not exist in this country in its entirety and that it is not thewhole body of Roman-Dutch law, but only so much of it as may-beshown or presumed to have been introduced into Ceylon that isin force here, does not apply to fundamental principles of the35—xxv.12(60)29
1924.
1924.
Samed v.Segulamby
{ 482 )
common law enunciated by authorities recognized as bindingwherever the Roman-Dutch law prevails. Such principles mayin course of time become modified in their local application byjudicial decisions, but it would be only by a series of unbrokenand express decisions that such a development could take place.Silva v. Silva1 overruled.
T
HE facts ate set out in the judgment of the District Judge(N. M. Bharucha, Esq.):—
In this action the plaintiff sues the defendant for the recovery ofRs. 3,000, being damages caused to the coconut trees on his land calledSengalkattu Bown by a fire, which he alleges to have spread from thenewly cleared chena belonging to the defendant. The alleged incidenttook place on September 15, 1922. Notice of the setting fire wasgiven by the defendant to the plaintiff on or about September 1.The defendant’s cleared chena is situated to the south of the plaintiff’sland. It is not disputed that the defendant had left a reservation ofabout 40 feet wide between the cleared chena and plaintiff’s estateto the north. The plaintiff had also clearedl a similar reservation about25 to 30 feet wide on his estate. After notice was given the plaintiffvisited his land twice'—once on September 5 and again on September 10.The plaintiff was apparently satisfied with the precautions taken bythe defendant to prevent the spreading of fire to his land, and did notanticipate any danger. However, for the sake of greater safety, theplaintiff asked his witness, P. Mohammadu Meedin, to be present onthe land with some men at the time the defendant set fire to the chena.Accordingly, Mohammadu Meedin was present on plaintiff’s land withplaintiff’s witnesses, Kuppe Pitchchi, Mana, and some others. It isalleged that just before the defendant and his men set fire to the clearedchena, Kuppe Pitchchi brought it to the notice of P. MohammaduMeedin that sufficient space was not left between the cleared and felledjungle and the uncleared portion to the east on defendant’s land.Kuppe Pitchchi suggested that at least a space of 30 feet should becleared, otherwise the fire would spread to the uncut jungle and fromthere on to the plaintiff’s land, as there was high wind blowing at thetime. P. Mohammadu Meedin brought this to the notice of thedefendant, but the defendant told him to mind his own business, andin spite of his remonstrance set fire to the felled jungle. It is suggestedfor the plaintiff that only a narrow passage was left between the clearedjungle and uncut jungle.
The fire therefore spread on to the uncut'jungle from which sparksflew on to the plaintiff’s land, which was covered with tall dry grass,and this was the cause of the damage suffered by the plaintiff.
The defendant says that he took all necessary precautions, and thatfire which caused the damage did not originate from his cleared chena.
We have now to consider whether the defendant took all thereasonable precautions. It was submitted for the plaintiff that thedefendant was guilty of negligence in setting fire to his chena : (a) on a■windy day and (6) in not leaving a sufficient cleared space between thefelled jungle and the uncut jungle to the east. It was also stated thatthe defendant would be liable to make good the loss suffered by theplaintiff if the fire which caused the damage originated from his land,whether negligence was proved or not in accordance with rule in
(1914) 17 N. L. R. 266.
( 483 )
Fletcher v. Rylands1 followed with approval in Elphinstonev. Boustead, *Silva v. SUva (supra), and Korossa Rubber Co. v. Silva.* The fact thatdefendant took necessary precautions is apparent from the plaintiff’sevidence. When the plaintiff visited his land some days before thechena was set fire to, he was apparently satisfied with the precautionstaken by the defendant and did not anticipate any danger to hisand ….
I think that Mohammadu Meedin and Kuppe Pitchchi and otherservants of the plaintiff, who were on the land at the time, were satisfiedwith the precautions taken by the defendant, and did not anticipateany danger from spread of fire to their land. The defendant gaveample notice to the plaintiff, and both plaintiff and his men weresatisfied with the precautions taken by the defendant. The defendanthad cleared a sufficient strip ojt jungle between his cleared chena andplaintiff’s land, and there must have been a space of at lesst 8 to 10 feet,if not more, between the felled jungle and the uncut jungle to the east,as long chulus are usually used in setting fire in such cases. In manycases a strip of jungle also acts as a protective belt against a spread ofa destructive fire. The plaintiff has entirely failed to prove negligenceon defendant’s part. On the other hand, the proved facts of the caseshow that the defendant took all necessary precautions which wereconsidered adequate by plaintiff and his servants. The spread of thefire was due to inevitable accident which could not be prevented byreasonable foresight. The rule in Fletcher v. Rylands (supra), therefore,does not apply in this case.
There is another reason wl^r plaintiff’s action fails. The plaintiffwas given ample notice of the setting fire of the chena. The plaintifftook no steps to clear his land of the tall dry inflammable grass in thevicinity of the cleared chena, with the result that the grass caught fireby sparks and led to the damages complained of.
The plaintiff appears to have been guilty of bad husbandry. He isalso guilty of gross negligence. When notice was given to him, it wasclearly his duty to clear his land of this grass in the neighbourhood ofthe cleared chena that was likely to catch fire. The excuse given bythe plaintiff that the land was being cleared on the eastern side at thetime is not satisfactory. The plaintiff having received notice oughtto have cleared his land of this grass sufficiently on the side of thedefendant’s chena. The plaintiff has, therefore, been guilty of negligencein this matter. This negligence is the proximate cause of the damagesuffered by the plaintiff and disentitled him to relief he claims.
Setting fire to chenas after notice is the usual way of planting landsin this district. It cannot, therefore, be said that the use of fire forsuch a purpose is not a natural use. On the authority of Rickards v.Lothian4 I would hold that the defendant is not liable, he having takenall adequate precautions.
In the view I take of the matter it is not necessary for me to considerthe question of damages. I dismiss plaintiff’s action, with costs.
E. W. Jayewardene, K.C. (with him R. C. Fonseka), for plaintiff,appellant.
C. S. Rajaratnam (with him Croos Da Brera and Chas. de Silva),for defendant, respondent.
1924.
Samed v.Segutamby
1(1S68) L. R. 3 H. L. 330.
2Ram. (1372-76) 269.
9 (1917) 20 N. L. R. 65.4 (1913) A. C. 263.
( 484 )
1924.
Samed v.Segutamby
July 4,1924. Bertram G.J.—
This is a case of damage to an adjoining plantation through fireused for a clearing operation, and the question involved in the appealis, whether it is necessary for the plaintiff to prove negligence inorder to entitle him to recover damages. In a series of casescontaining most weighty dicta, it has been assumed that in suchcases proof of negligence is not necessary, and that there is anabsolute liability independent of any negligence. It has been held,in fact, firstly, that the rule in Byland# v. Fletcher1 is in force in thiscountry; and secondly, that it applies to the use of fire for agricul-tural operations. The learned District Judge, however, has delivereda judgment which in effect challenges this assumption, and it hasbecome necessary to examine the question afresh.
An examination so undertaken discloses a series of circumstances,which, in view of the assumption so continuously made in this Court,must be described as unexpected, and can hardly have been fullybefore the Judges who enunciated the dicta referred to. It is clearon this examination of the authorities that the rule referred to hasnever been applied to fire used for agricultural operations eitherin England or anywhere else. The law in England as to the use offire for such purposes had an independent development, and wasnot referred to either in the judgments In Fletcher v. Bylands (supra),or in any case in which that case has been subsequently considered.In such standard text-books as Salmond on Torts, pp. 245-250;Seven on Negligence, pp. 486-497; and even PoUock on Torts,pp. 489-491, the opinion is expressed, or appears to be expressed,that proof of negligence is essential to the right to recover. Furtherin certain Canadian cases cited in Seven, p. 496, it appears to havebeen held that “ where fire has been properly set out by a person onhis land for the necessary purposes of husbandry, at a proper place,time, and season, and managed with due care, he is not responsiblefor damage occasioned by it.” So also in Scotland, with regard tothe practice of “ muirburning,” it was held that “ the party conduct-ing such an operation as a muirbum should exercise the care anddiligence which a prudent man would observe in his own affairs.”Further, in a New Zealand case, which was carried to the PrivyCouncil (Black v. Christchurch Finance Co.2) the law was declaredby Lord Shand as follows :—
“ The lighting of a fire on open bush land, where it may readilyspread to adjoining property and cause serious damage,is an operation necessarily attended with great danger,and a proprietor who executes such an operation is boundto use all reasonable precautions to prevent the fireextending to his neighbour’s property (sic utere tuo utalienum non l&das).”
> (2*46) L. R. 1 Exch. 265 ; 3 H. L. 330.
8(1894) A. C. 48.
( 485 )
This dictum was not necessary to the decision of the case, butit was quoted as an authoritative statement of the law in thePrivy Council in our own local case (Korossa Rubber Co. v. Silva1).What is still more significant in connection with that caseis that the Privy Council expressly reserved the question whetherproof of negligence was necessary, and held that negligence had infact been proved. Finally, there is no question that both in civillaw and in the Roman-Dutch authorities which have adopted thatlaw, negligence is essential to the action. See Digest, 9, 2, 30,paragraph 3: “ At si omnia quse oportuit observavit, vel subita visventi longius ignem produxit, caret culpa”
I quote the whole passage from Monro's Translation :—
“ In the action arising on this section, as in the other, it is maliceand negligence that are penalized; consequently, if a manshould set fire to his stubble or his thorns, in order tobum them up, and the flames increase and spread soas to injure the com or vines of some one else, we haveto ask whether it took place through his negligence or hiswant of skill. If he did it on a windy day, he is guilty ofnegligence as a man who gives an opening for damage tooccur is held to commit it, and he exposes himself to thesame charge if he did not take means to prevent the firefrom spreading. But if he took all proper precautions,or a sudden gust of wind caused the spread of the fire, he isnot guilty of negligence."
.As it has been declared in the dicta above referred to that theEnglish rule in Rylands v. Fletcher (supra) has been definitelyreceived into our legal system, and that that rule is said to embracethe use of fire for agricultural purposes, it may be well to considerthe evolution of the English law.*
The cases which formed the foundation of that rule had nothingto do with fire. They were of two classes : The first class consistedof cases of cattle trespass. The absolute liability of a cattle ownerfor damages done by his cattle was a recognized principle of Romanlaw (see per Phear* C.J. in Babun Appu v. Sinno2). The otherclass consisted of cases of animals known by the owner to be mis-chievous, e.g.y a boar, a bull, a dog, and a monkey (see May v.Burdett3). Here, the gist of the action was the keeping of the animalafter knowledge of its mischievous propensities (see per LordDenman C.J. on page 1227). “ The negligence is in keeping such ananimal after notice.” Rylands v. Fletcher (supra) extended thatprinciple to the case of a man who erects or brings on his land artifi-cial constructions which are in their nature dangerous. But evenin the judgment in Rylands v. Fletcher (supra) there are words whichindicate a possible exception in the case of “ work or operations inor under the land.”
i (1927) 20 N. L. R. 65.* (1879) 2 S. C. C. 90.* y846) 9 q. Bi l01
1924.
Bertram
C.J.
Samed v.Segutamby
( 486 )
1924.
Bertram
C.J.
Samed v.Segutamhy
The liability for the spread of fire rested on another basis. InEnglish law such things were governed by particular customs of therealm. Thus it was by the custom of the realm that a carrier washeld absolutely liable for goods entrusted to him, except where theywere damaged or lost by an act of God or the King’s enemies (seeLord Mansfield’s judgment in Forward v. Pittard1). Similarly, byanother custom, it was incumbent on a man carefully to guard hisown fire. The custom is most explicitly set out in the old case fromthe Year Books of Beaulieu v. Fingham cited in Piggott v. TheEastern Counties Railway Company2: “ Quare, cum secundumlegem el consuetudinem regni nostri Angliae, hactenus obtentam, quodquilibet de eodem regno ignem suum salvo et secure custodial, et custo-dire, teneatur, ne j>er ignem suum dampnum aliqvod vicinis suis'eveniatThe leading early case on the subject was Tuberville v.Stamps3 which was decided in the ninth year of King William III.’sreign, and which is reported in various reports. There a servant of thedefendant lit a fire to bum stubble, and—“ ignem suum tarn improvide.and negligenter custodivit quod defectii debitae custodies ignis suipred—the clothes of the plaintiff in the close adjoining were burnt.Nothing is said here as to any absolute liability. In the subsequentcase of Vaughan v. Menlove* Tindal C.J. refers to the negligencein Tuberville v. Stamps (supra) as consisting in burning of weeds toonear the boundary of the land. It does appear, however, in the reportof Tuberville v. Stamps (supra) in 2 Comyn that the question was raisedwhether it was necessary to show any special negligence in thedefendant, and it appears to have been ruled that it was not necessary.All that is meant by this is, I take it, that negligence in such a case ispresumed (see per Tenterden C. J. in Becquet v. MacCarthy 5). Indeed,the Judges in Tuberville v. Stampe (supra) expressly declared that itwas open to the defendant to show the absence of negligence, and thatthis would be a matter for consideration by the jury. See the reportin 12 Modem 152 : “ if he kindle it at a proper time and place, andthe violence of the wind carry it into his neighbour’s ground, thisis fit to be given in evidence.” From where do Holt J. and the otherJudges derive this principle ? Clearly from the old Roman civillaw with which English Judges in those days were familiar. LordHolt’s words are clearly nothing more than a translation of thesentence in the Digest quoted above: “ At si omnia quae oportuitobservavit, vel subita vis venti longius ignem produxit, caret culpa.”
It is true that in Filliter v. Phippard6 Lord Denman C.J. statesthe ancient law or custom of England in terms which seem to implyan absolute liability, but the observation is obiter $,nd would pro-bably have been qualified had the point definitely arisen. Moreover,in that case the action was based upon negligence. The only1 {1765) 1 Term Reports 27.4 3 Bing. New Cases 468.
* {2846) 3 C. B. 241.5 o p a* aa nt «
3 1 Salk. 13 S. C.t 1 Lord Ray2 B’ & Ad' at 958-
264, 1 Comyn 32.4 (1847) 11 Q. B. 347.
( 487 )
question in that case was whether the fire could be described asaccidental. It is also quite true that distinguished English Judgesin the recent case of Musgrove v. Panddis1 do seem to favour theidea that in English law there was an absolute liability for the escapeof fire, but the dicta to this effect are both obiter and obscure, and Iquestion whether they are to be considered as authoritative. Itappears to be clear, therefore, that even if we assume that thedoctrine of Bylands v. Fletcher (supra), in so far as it relates toartificial dangerous contrivances or agencies, has been received intoour legal system, to apply it to the case of fire used for clearingoperations, would not only be not in accordance with English law,but would be directly contrary to the express provisions of ourown common law.
Are we then to consider our own common law as superseded,because certain eminent Judges in previous decisions and dictahave ignored or repudiated it? On what principle.can this bejustified ? These eminent Judges base their view upon the proposi-tion that “ the Roman-Dutch law, pure and simple, does not existin this country in its'entirety,” and that “ it is not the whole bodyof Roman-Dutch law, but only so much of it as may be shown orpresumed to have been introduced into Ceylon ’* that is now appli-cable here. With the very greatest deference to the high authorityof these Judges, I hesitate to apply such propositions to funda-mental principles of the common law enunciated by authoritiesrecognized as binding wherever the Roman-Dutch law prevails.Such principles may no doubt, in course of time, become modifiedin their local application by judicial decisions, but it would be onlyby a series of unbroken and express decisions that such a develop-ment could take place.
But if our previous local authorities be examined, it will be foundthat they are by no means so formidable as might at first sightappear. They consist of Elphinstone v. Boustead2 said to be a“ Pull Court Case ” : Babun Appu v. Sinno (supra), Silva v. Silva,3and the Korossa Rubber Co. v. Silva (supra). In the first ofthese cases,the question of thenecessity of the proof on the negligencewas never argued, but was given up by the appellant. In the secondease,Babun Appu v. Sinno (supra), the damage complained of was theburning of a fence and three neighbouring jak trees close to thedefendant's boundary. The facts there suggest positive negligence.In the third of these cases, it was expressly declared that negligencewas proved. In the case of the Korossa Rubber Co. v. Silva (supra),also the Judges found that negligence had been proved, and thisfinding was upheld by the Privy Council. Moreover, it is not correctto say that the principles of our own common law have been uniform-ly ignored. Three cases (Allis v. Pitche Cando* Kulatungam v.
1 (1919) 2 K. B. 43.* (1914) 17 N. L. R. 266.
% Ram. (1872-76) 268.* (1887) 8 S. C. C. 96.
1924.
Bertram
C.J.
Samed v.Segutamby
( 488 )
1924.
Bertram
e.j.
Samedv.Segtttamby
Sabapathi Pillai,1 and Tatham v, Ohinniah2) seem to have proceededupon the basis of our common law. In the second case, the fire wasdomestic fire causing damage to a house, but such fire, and fire usedfor agricultural purposes, are on the same footing.
The principles of our own common law will be found most conve-niently and fully summarized in Nathan, vol. III., paragraph 1728,and Mamdorp, vol. IV., pp. 60-61. I quote the following fromMamdorp:—
“ Of dangerous agencies one of the most common is fire. Wherea person makes a fire upon his own ground, whether todestroy rubbish, or to keep down the vegetation, he isbound to use the greatest diligence and care and to takeevery precaution, for if he does not and the fire spreads onto the land of a neighbour and does damage there, he willbe liable for the same/’
The authorities differ as to whether positive negligence must beshown by the plaintiff, or whether proof of due diligence must notbe given by the defendant. Voet holds that the burden of prooflies upon the plaintiff, and this view we should no doubt adopt,,subject to the qualification that in some cases negligence may beinferred from the fact itself.
~~It appears, therefore, that applying the principles of our own law,it is necessary to consider in the present case whether the defendantwas guilty of negligence. This is not an easy question to determineas the evidence is contradictory, and it is impossible that that ofboth sides could have been given in good faith. The facts appearto be that due notice was given by the defendant in the customarymanner of his intention to bum down his jungle. A strip of 30 feetwas cleared and reserved on the boundary of plaintiff’s land in thedirection in which the fire would naturally be carried by the prevail-ing wind. Plaintiff himself cleared a corresponding portion on hisown land as an additional precaution. It was clearly necessary,however, that there should be a further strip cleared alongside thelot on which the firing was to take place, so as to prevent the firespreading sideway in the event of a deflection of the wind. Defend-ant alleges that this was done, and that there was a reservation of30 feet at the side of the lot. The Judge clearly does not believethis. Plaintiff’s witness assert that only a strip of some 3 feet wasleft. The Judge, on what does not seem to me very adequategrounds, thinks that a strip of at least 8 or 10 feet must have beenleft. At any rate, it seems clear that the strip so left was insufficient.A deflection of the wind in fact occurred ; the fire spread sideways,got out.of all control, and reached plaintiff’s land at a place where noprecautions had been taken on either side. It seems to me thatnegligence is clearly established. Indeed, this is a case in which1 (1908) 11 N. L. B. 350.* (1905) 1 Leem. 17.
( 489 )
negligence may be inferred from the facts themselves. The firecould not have spread sideways into other land of the defendant ifa proper reservation had been made in that direction.
It is contended, on the other hand, that there was contributorynegligence on the part of the plaintiff. When the fire reached hisland, it kindled certain grass which was growing there. It wascontended that the plaintiff ought to have foreseen that the firewould invade his land at this point, and ought to have cut downthis grass. I cannot see that there was such an obligation on theplaintiff. It has indeed been laid down by Atkin L.J., in a recentcase, EUerman Lines, Ltd., v. H. <£ G. Grayson', Ltd.,1 that aplaintiff cannot recover even though he may be under no obligationto the defendant if by the taking of some ordinary or reason-able precautions he could have avoided the consequences of thenegligence of the defendant* This is quoted with approval byLord Pannoor in H. & G. Grayson v. EUerman Line,2 where heputs it that it is a question of fact in each case whether suchreasonable precautions ought to have been taken. But I thinkthat this principle applies where some relationship is establishedbetween the plaintiff and the defendant. It can hardly applywhere the defendant invades plaintiff’s land at a place where heought not to have come. Indeed, I view with the utmost distrustthe proposition that a man who has brought about the invasionof the larnjl of another and caused damage thereon can escapeliability by pleading that that other ought to have taken precautionsagainst the invasion. I would rule, therefore, that the contributorynegligence is not made out.
It remains to deal with the question of damages. The learnedJudge in the circumstances has made no finding on this point.The evidence of the Mudaliyar is uncontradicted by any evidencecalled on the other side. He estimates the damage at Rs. 1,939*88.This would appear to be a moderate estimate, inasmuch as it takesno account of the possibility of some of the trees burnt dyingaltogether. I think it best to accept this estimate. I would allowthe appeal, and enter judgment for the plaintiff for this* amount,with costs here and below.
1924.
Bertram
C.J.
Sained v.Segutamby
Garvin A.J.—I agree.
Jayewabdene A.J.—
This is an action to recover damages caused by fire. Theplaintiff and the defendant are adjoining landowners. Thedefendant cut down the jungle on his land and set fire to it inthe course of some agricultural operations. The 'fire spread tothe plaintiff’s land which had a young coconut plantation anddamaged the plantation. The plaintiff alleged negligence on the1 (1919) K. B. 514.* (1920) A. C. 477.
( 490 )
1924.
Jayewar-DENE A.J.
Samed v.Segutamby
part of the defendant, but no issue was framed on this allegation.The defendant pleaded contributory negligence on the part of theplaintiff in exculpation, and an issue was framed raising the questionof the plaintiff’s contributory negligence. The learned DistrictJudge dismissed the plaintiff’s action. He held that the plaintiffhad entirely failed to prove negligence on the part of the defendant,that the defendant had taken all necessary precautions, and thatthe spread of the fire was due to inevitable accident which couldnot be prevented by reasonable foresight. He also found thatthere has been contributory negligence on the part of the plaintiff,who, although notified of the defendant’s intention to set fire to thejungle, took no steps to clear his land of all dry inflammable grassin the vicinity of the jungle about to be burnt.
It is contended for the plaintiff that the judgment of the DistrictJudge is erroneous, on the ground that the law applicable to casesof this kind is the English law which does not require proof ofnegligence or want of proper care and attention on the part of aperson who brings a dangerous substance, like fire, to his premises,to render him liable to persons who have suffered damage by thespread of fire. In support of this contention reliance is placedon several local cases : Elphinstone v. Boustead (supra), BabunAppu v. Sinno (supra), Silva v. Silva (supra), and Korossa RubberCo. v. Silva (supra), in which this Court applied what may bedescribed as the Fletcher v. Rylands9 rule to fire.
On the other hand, it is contended for the defendant that theRoman-Dutch law, which requires proof of negligence, governs therights and obligations of the parties, and that even if the Englishlaw applied, negligence or want of care on the part of the defendantwas a necessary ingredient. Two questions thus arise for determi-nation :—
Is this case to be decided on the principles of the English
law or of the Roman-Dutch law ?
If according to the principles of the English law, is proof of
negligence or want of proper care on the part of thedefendant essential ?
The Roman-Dutch law on the subject is perfectly clear andsimple. It is embodied in the Lex Aquilia, which codified the lawrelating to wrongful damage to property, and forms Book IX.,tit. 2, of the Digest, and Book IX., tit. 2, of Voet’s Pandects. Voetrepeats the Roman law practically word for word, and in paragraph19, which deals with damage to property by fire, he says :—
“ He who sets a light to his stubble or thorns for the purpose ofburning them down, if the fire spreading damages ordestroys a wood, vineyard, or crops belonging to someone else, and such negligence appears on the part of theperson first lighting it, as when, it may be, he did this on'
( 491 )
a windy day, or did not take precautions to prevent thefire spreading, for if he observed every precaution, andthe wind suddenly came up and carried the fire further,he would not be to blame.” (Sampson's Translations,p. 314.)
And Vander Linden put it shortly thus :—
“ In like manner, as there are guosf-contracts, so are there alsoquasi*crimes, as when we occasion damage to another byany act of ours which although not punished by law,yet on account of our negligence or inadvertence subjectsus to damages. For instance …. where a fireoccasioned in your house through your carelessness iscommunicated to.mine.” (Book 1, chap. XV1.3 sec. 3.)
But in Elphinstone v. Boustead (supra) it was conceded by counseland declared by the Court that in an action for causing damageby fire, it was unnecessary to prove negligence on the authoritymainly of Fletcher v. Bylands (supra) which laid down that if a manbrings upon his land anything which would not naturally comeupon it and which is in itself dangerous, and may become mis-chievous if not kept under proper control,' though in doing sohe may act without personal wilfulness on negligence, he will beliable in damages for any mischief thereby occasioned. He isbound “ sic uti suo ut non alienum l&dat ” The ingredient inFletcher v. Bylands (supra) was water dammed up to form areservoir, but in that case the same principle was held applicableto fire kindled on the premises for agricultural purposes. BabunAppu v. Sinno (supra) was a similar case where the jungle set fireto by the defendant was close to the common boundary, and theprinciple of Fletcher v. Bylands (supra) was applied, but the learnedChief Justice cited a passage from the Roman-Dutch law (VanLeuven Censura Forensis, pt. I, libv. d31, s. 4) to show that the sameprinciple is recognized in Ceylon and constitutes the ground ofright on the part of the person agrieved to claim compensationin cattle trespass cases, and he also said that “ the defendant did awrongful act towards the plaintiff by employing fire so near to thecommon boundary line as to destroy the plaintiff’s fence.” Thereis here this same sort of negligence as is found in the English caseof Tubervitte v. Stamps (supra). Elphinstone v. Boustead (supra) wasnot referred to, and it cannot be said that this case decided thatthe English law was applicable to cases of damage by fire, but itadopted the Fletcher v. Bylands9 principle as it was in consonancewith the principles of the Roman-Dutch law applicable to suchcases.
In Silva v. Silva (supra) it was no doubt held that in view of thedecisions in Elphinstone v. Boustead (supra), the principle of theEnglish law applicable to such cases must be taken to have been .25/36
1924.
JAYE WAR-DENS A.J.
Samed v.Segutamby
( 492 )
1924.
Jayewar-DENE A.J.
Stoned v.Segytamby
introduced, but here, again, the Roman-Dutch law was adverted,to, and the learned Judge held that even if the case had to bedecided according to the Roman-Dutch law, the result would nothave been otherwise, as the defendant had not used the utmostdiligence and care and had not taken every precaution to prevent'the fire spreading.
In Korossa Rubber Co.' v. Silva (supra), although the Court heldthat the English law was applicable, it also held that there wasclear proof of negligence on the part of the defendants, so that theywould be liable e>en under the Roman-Dutch law. In his judgmentDe Sampayo J. discussed the Roman-Dutch law: Voet 9, 2, 12 ;Nathan's Common Law of South Africa, vol. 2, p. 1783 ; and Maas-dorp's Institutes of Cape Law, vol. 4, p. 60 ; and said
“ But these authorities do not help the defendants, even if theRoman-Dutch law as therein stated is to be applied.They all regard the burning of stubble or weeds on awindy day, without taking precaution to keep the firewithin bounds, as a negligent act, for which the personwho does it is liable to his neighbour into whose land. the fire may spread. This is exactly what happened onthis occasion. There was a high wind, characteristic ofthis part of the year; the defendants had on their chenaa great quantity of inflammable material in the shape ofdry leaves and trees, and they left no sufficient belt ofuncleared jungle between their land and Korossa estateas a precaution against the spreading of a. fire. Therefore,if negligence must exist, there was negligence on theirpart. But the truth appears to be that, since negligenceis a matter of presumption, there is no essential differencebetween the English law and the Roman-Dutch law inregard to liability to damage caused by fire.”
On the other hand, there are cases of damage by fire in whicheither the English law has been ignored or the principles of theRoman-Dutch law applied. Thus in Allis v. Cheeny Pichecando,1although the main question was whether the owner of the landwas responsible for damage by fire caused by a contractor employedby him, Burnside C.J. said :—
“ The principle being, that where in the performance of aparticular work by one landowner to his own property,danger to the property of an adjacent landowner isnecessarily incurred, which throws upon the owner doingthe work the duty of taking care that his neighbour isnot injured, such owner cannot relieve himself of respon-sibility by employing a skilled agent or contractor to doit for him.”
* (1887) 8 S. C. C. 95.
( 493 )
And Clarence J. said :—
“ Clearing land in this manner is certainly an operation attendedwith damage to the property of adjoining landowners,and the man who bums off his land, as the phrase is,has cast upon him the duly of using the precautionnecessary to prevent mischief. He does not dischargehimself of responsibility merely by employing a contractorto do the work for him. That this is the law, there canbe no doubt.”
Here, there is no reference to Fletcher v. Rylands (supra) or to theprinciple enunciated therein that a person who bnngs a dangeroussubstance to his land does so at his risk, but the duty of takingcore and using the precautions necessary is insisted on. This casewas followed in TaXham v. Chinniah (supra) and Schokman v. deSilva1 on the point that the master is responsible for the tortcommitted by his employee or agent, but, in the course of hisjudgment in the former case, Middleton J. said:—
“ The principle .which should govern our decision in this case isthe well-known maxim sic utere tuo ut non aLienum laedas.The defendants were anxious to clear their jungle by fire,and bound in doing so to take the greatest, possibleprecautions that that dangerous element should notescape beyond their own boundaries. It is far fromclear from the evidence that anything like properprecautions were taken by the third defendant, and if hewas the servant of the second and third defendant thereis no question as to their liability. The fact that therewas illuk grass growing adjacent to the jungle about to becleared ought to have made the three defendants morecareful in their arrangements.”
The reference to the maxim sic utere tuo ut non alienum laedasdoes not necessarily indicate that the Court was relying on theFletcher v. Rylands' principle. The immediate reference to thefailure to take proper precautions shows that the learned Judgewas not relying on the English case, vide Black v. ChristchurchFinance Co. (supra) and Korossa Rubber Co. v. Silva (supra).Then we have a case in which the Roman-Dutch law was relied on.This is Kuiatungam v. Sabapathi Pillai (supra). That was a case inwhich the plaintiff, the lessor, sued the defendants, his tenants,for damages for the destruction of a house by fire while in theoccupation of the defendants. One of the issues framed in thecase was “whether the second defendant acted so carelessly andnegligently and without taking due and proper care and precautionas to let the fire in the kitchen bum down the house ? ” The1 (1915) 1 C. W. R. 205.
1924.
Jayewab-DENE A.J.
Samed v.Segutamby
1924.
Jayewar.RENE A.J.
Samed v.Segutamby
( 494 )
plaintiffs had undertaken the onus in the District Court and had^failed, but in appeal it was contended that the onus was on thedefendants to show that the fire was due to unavoidable accident..The question of onus became important, for the District Judge hadheld that if the burden of proof lay on the defendant’s shoulders,he would not have found in favour of the defendants. The questionof onus was decided according to the principles of the Roman-Dutchlaw.
Wendt J. said:—
"The incidence of the onus in a case of destruction by fireappears to have been the subject of controversy amongthe old jurists. Grotius (Introduction, bk. III., chapterXIX., section 11; Maasdorp 395 citing the Digest, bk.XIX., 2, 9, 3) lays the burden on the lessee to proveunavoidable accident. In the analogous case of thecontract of pledge, the same learned author says that theloss of the pledge by fire or robbery is considered as dueto negligence, unless the defendant proves the contrary(bk. III., 3, 4, and compare Van der Keesd, Thesis 540).Voet (bk. 9, 2, 20 ; Sampson, p. 325) takes the oppositeview, on the ground that the onus lies by the general ruleon the plaintiff, and that negligence, like fraud, will notbe presumed. His reasoning is not without force, butin the conflict of authority I am disposed to follow theruling of Withers J., who, in the case of Bastian Pillai v.Gabriel,1 held that the onus lay upon the defendant toprove that the destruction of the property hired by himwas occasioned by unavoidable accident.”
Bastian Pillai v. Gabriel (supra) was a case in which the plaintiffsued to recover the value of a jar given to the defendant on hireand destroyed by fire whilst in the latter’s possession. Withers J.held that the onus was on the defendants to prove that the firewhich destroyed the jar was occasioned by unavoidable accident.
" If the jar was burnt in this way, then the defendant is not liableto make compensation to the lessor according to the Roman-Dutchlaw.”
These cases are of considerable importance, and cannot be brushedaside on the ground that they dealt with the question of onus asbetween lessor and lessee, for the onus in a case between a lessorand a lessee is the same as that in a case between the owner and aneighbour, and is governed by the same principles (Voet 9, 2, 20).They apply the rules of the Roman-Dutch law with regard to the .liability of a lessee or hirer for damages caused by fire as laid downin Voet 19, 2, 31. This would not be so, in my opinion, if the
1 (1802) 1 S. C. if. 264.
( 495 )
English law had been introduced on the subject of liability fordamage by fire.
It is thus apparent from a review of the decisions on the pointthat the principle laid down in Fletcher v. Rylands (supra) has notbeen uniformly applied as governing the rights and liabilities ofparties in actions for damages arising from fire, and speaking frommy experience at the Bar, it has invariably been the practice for adefendant to plead and prove that he had taken the usual andnecessary precautions to prevent the spread of fire to the plaintiff’sland. Such evidence has never been objected to as being irrelevantin view of the judgment in EVphinstone v. Boustead (supra). Butit is said that EVphinstone v. Boustead (supra) is a Full Benchdecision, and that the Roman-Dutch law on the point has beenabrogated by it and held to have been so abrogated by the Judgesin SUva v. Silva (supra). It is therefore necessary to examine thebinding effect of Elphinstone v. Boustead (supra). There it was con-ceded by counsel that the principle laid down in Fletcher v. Bylands(supra) applied to cases of the present kind, and as the point wai notdiscussed, the Court did not think it necessary to enter upon it.Is such a decision authoritative and binding ? Black in his “ Lawof Judicial Precedents 99 says at p. 43 :—
“ The authority of a precedent extends only to rules or principlesof law expressly decided or tacitly assumed by the Courtitself. In either case, there must have been an applicationof the judicial mind to the question of law involved,whether the result is explicitly stated or not. Hencewhen counsel in the argument of a case assume a certainprinciple advanced by them as correct law, and theCourt decides the case upon the assumption thus madeby counsel, without discussing the correctness of theassumption, the opinion is not authority as to the legalvalidity of the principle so taken for granted. The ruleis the same as to matters which, without being submittedto the Court for determination, are simply treated as"settled by the parties on both sides without objection.”
This seems to be in consonance with what Lord Denman C.J.said in the celebrated case of O'Connel v. Regina,1 where referringto a dictum of Lord Mansfield in another case, he said :—
“ I am tempted to take this opportunity of observing that alarge portion of that legal opinion which has passedcurrent for law falls within the description of ‘ law takenfor granted.’ If a statistical table of legal propositionsshown be drawn out, and the first column headed ‘Lawof Statute,’ and the second ‘ Law of Decision ’; a thirdcolumn, under the heading of ‘ law taken for granted/
1 USU) 11 Cl. <0 F. (H. L.) 156 {372).-
1924.
Javbwab-DBNB A.J.
Samed v.Segntamby
( 496 )
would comprise as much matter as both the otherscombined. But when, in pursuit of truth, we are obligedto investigate the grounds of the law, it is plain, and hasoften been proved by recent experience that the merestatement and re-statement of a doctrine—the mererepetition of the cantilena of lawyers—cannot make it law,unless it can be traced to some competent authority, andif it be irreconciliable to some clear legal principle.”
Something might be said in support of such a decision if it has
been consistently followed in practice and adopted by the Courts,but as I have pointed out the Courts have acted on principlesinconsistent with the principle taken for granted there or wherethe same principle has been acted upon, reliance was not placed onthat decision, but it has been acted upon as it is similar to thosefound in the Roman-Dutch law.
It was only in Silva v. Silva (supra), twenty-eight years later,that Elphinstone v. Boustead (supra) was expressly referred to andheld to have introduced the principle of the English law. In theKorossa Rubber Co. v. Silva (supra), Wood Renton C. J. said :—
“ As far back as 1876, however, it was admitted by counsel inthe argument, and held by the Full Bench in the judgmentin the case of Elphinstone v. Boustead (supra) that theprinciple laid down in Fletcher v. Bylands (supra) hadbeen adopted in this Colony.”
And De Sampayo J. said :—
“ Accordingly we find that in Elphinstone v. Boustead (supra)the Full Bench of the Supreme Court declared the lawas to damage caused by such an element as fire to bethat enunciated in Fletcher v. Rylands (supra).”
I do not think it is quite correct to say that in Elphinstone v.Boustead (supra) the Full Court either “ held ” or “ declared thelaw ” to be as stated by these two learned Judges, in view of thefact that the Full Bench of this Court expressly refrained fromentering upon a discussion of the question as it was not arguedbefore it. It merely acted on the concession of counsel. There is,therefore, no ground for stating that the Roman-Dutch law on thepoint had been abrogated by our Courts. The proclamation of1799 established the Roman-Dutch law as it “ subsisted under theancient Government of the United Provinces ” as our commonlaw, and the presumption is that every one of these laws, if notrepealed by the local Legislature, is still in force : see Thurbum v.Steward1 and the judgment of De Villiers C.J. in SeaviUe v. Colleyreferred to in Nathan's introduction to “ The Common Law of SouthAfrica ” at page 24. But this Court has also declared parts ofthe Roman-Dutch law inapplicable on various grounds (see1 (1371) L. R. 3 P. C. 478.
1984.
Jayewar-DBNB A. 3.
Samed v.Segutamby
( 497 )
Roman-Dutch Law: as it prevails inCeylonoy A. St. V. Jayawardene,pp. 22-25, and Korossa Rubber Co. v. Silva (supra) at p. 75).
But there is no decision by which this Court has declared thatthe Roman-Dutch law on the subject of damage by fire isinapplicable in this Colony by its being obsolete or for any otherreason. It is not a special or local law which is only suited toconditions in Holland and unsuited to local conditions. It is alaw of general application, and it cannot be suggested that it wasnot imported to Ceylon. This law is to be found in the works ofinstitutional and other writers on the Roman-Dutch law reoog-nized in Ceylon and appealed to in the Colony upon all questionsof Roman-Dutch law. As this Court said in 1835 : “ If the rightexists, it is not the less law because hitherto suitors may nothave thought it expedient to exercise it.” Morgan's Digest, p. 61,Other parts of Yost's Pandects, bk. IX., tit. 1 to 4, which containsthe Roman-Dutch law of torts, have been held applic* ble in Ceylon(see Pereira's Laws of Ceylon, bk. 2, chap. 1, section 4), where thislearned author practically reproduces the whole of Voet, bk. IX.,tit. 1 and 2, including the section dealing with fire (p. 752), althoughat page 743 he has drawn attention to the effect of the decision inElphinstone v. Boustead (supra). In these circumstances, I cometo the conclusion that there is no binding decision which compelsus to hold that the English law relating to damage by fire has beenintroduced into Ceylon, and that the principle laid down in Fletcherv. Rylands (supra) with regard to dangerous animals or thingshad been held applicable to Ceylon in suppression of the Roman-Dutch law on the subject. The Roman-Dutch law on the subjectmust therefore govern the rights of the parties, and there must beproof of some negligence on the part of the person lighting the firebefore he can be cast in damages.
There remains the question whether if the English law appliesto cases of this kind, there must be proof of negligence. Whatcounsel conceded in Elphinstone v,. Boustead (supra) was not thatthe English law applied, but that the principle laid down in Fletcherr Rylands (supra) was applicable. Does the decision in Fletcher v,Rylands (supra) apply to fire brought to one’s land for a necessarypurpose ? It is significant that in the judgments of the EnglishCourts through which that case passed, no reference is made tofire which is obviously an element of a most dangerous character.The Lord Chancellor (Lord Cairns), in the course of his judgmentin that case, said :—
“ On the other hand, if the defendants, not stopping at the naturaluse of their close, had desired to use it for any purposewhich I may term a -non-natural use, for the purpose ofintroducing into the close that which in its naturalcondition was not in or upon it, for the purpose of introduc-ing water either above or below ground in quantities and
36-xxv.12(60)29
1924.
Jayewab-DENE AX
Samed v.Segutamb#
( 498 )
1924.
Jativab.Dims A.J.
Samed vSegutamby
in a manner not the result of any work or operation onor under the land, and if in consequence of their doing so,or in consequence of any imperfection in their mode oftheir doing so, the water came to escape and to pass offinto the close of the plaintiff, then it appears to me thatthat which the defendants were doing, they were doingat their own peril."
Thus limiting the application of the doctrine to “ non-naturaluser ’’ of dangerous substances, and in Nicholls v. Marsland1Bramwell B., who was one of the Judges who decided Fletcher v.Hylands a when it was before the Court of Exchequer Chamberdistinguished that case from the latter, and said
" But this case and the case I put of the chimneys are not casesof keeping a dangerous beast for amusement, but of areasonable use of property in a way beneficial to thecommunity,”
The application of the Fletcher v. Bylands’ principle thereforedepends on the object or purpose for which a dangerous thing iskept on one’s land. Referring to Fletcher v. Hylands (supra), Smithin his Law of Negligence, 2nd ed., p. 40, remarks:—
“ The question what is a dangerous thing must be one for the jury.Whether a thing is sufficiently dangerous to be kept at aman’s peril must depend on the locality, the quantity, andthe surrounding circumstances, and I am not aware ofany case which has decided that Betting fire to weeds oragricultural produce comes within this rule.”
Counsel who argued this case, although he cited a large number ofcases, was unable to produce a single case in which fire brought foragricultural or domestic purposes was treated as falling within themeaning of the term “ dangerous substance ” as defined in Fletcherv. Bylands (supra).
On the-other hand, in the case of Black v. Christchurch FinanceCo. (supra) which was decided by the Privy Council, Their Lordshipssaid:—“ The lighting of a fire on open bush land where it mayreadily spread to adjoining property and cause serious damage is anoperation necessarily attended with great danger, and a proprietorwho executes such an operation is bound to use all reasonableprecautions to prevent his fire extending to his neighbour’s property(sic utere tuo ut alienum non Icedas)." This passage was adoptedby Lord Dunedin when delivering the judgment of the PrivyCouncil in the local case of Korossa BvJbber Co. v. Silva (supra).
And Beven in his Law of Negligence, p. 494, shows that incountries like Canada, where burning off jungle land for agriculturalpurposes is not an uncommon operation, the person who sets fireis not liable if the jungle is burnt “ at a proper place, time, and1 (1870) L. R. 3 P. C. 478.* (187S) L. R. 10 Ex. 255.
( 499 )
season, and managed with due care.” In Rickards v. Lothian1where the ingredient was water as in Fletcher v. Rylands (supra) anddamage was caused to property on a lower storey by an overflowof water from the top floor, it was held by the Privy Counci]distinguishing Fletcher v. Rylands (supra) that as the water wason the premises for the ordinary and proper uses of the house, thatalthough the occupier of the top floor was bound to exercise allreasonable care, he was not responsible for damage not due to his owndefault. These authorities seem to me to clearly indicate that theFletcher v. Rylands (supra) rule has no application to any substance,which, if it escapes, is likely to become dangerous, when the substanceis being put to its “ natural use,” or to a “ reasonable use in a waybeneficial to the community/* or for “ agricultural or domesticpurposes at a proper place, time, and season, and with due care.”
In the case before us, the defendant was, in burning the jungle,carrying on an agricul fcural operation common in this country,preparatory to planting up his land. To his case the Fletcher v.Rylands (supra) rule would not apply, and he would not be liable toanybody who has suffered by the escape of fire unless there hasbeen negligence on his part. It was also contended that under theEnglish law, apart from Rylands v. Fletcher (supra), any personwho kindles a fire on his land is liable for all damage caused bysuch fire, irrespective of negligence, that is, that he does so athis risk, and that the English law applicable in Ceylon is thecommon law unaffected by statutory modifications.
It is said that under the common law an occupier was absolutelyliable for damage done by fire independently of any negligenceon his part, or that of any one else, whether accidentally or not.This law was altered by a Statute passed in the reign of QueenAnne, reproduced in 14 Geo. III., c. 78, s. 86, which abolishedliability where “ any fire shall accidentally begin.” Persons hereare not to get the benefit of this statutory amelioration, but are to beexposed in the full rigour of what is said to be the common law.If effect is to be given to learned counsel’s contention, people in thiscountiy would be liable even for accidental fires. Fortunately,the common law is not as stated by counsel for the appellant, andthe opinion oi text-book writers of repute referred to by my Lordthe Chief Justice is that liability for damage by fire is based on thenegligent lighting or care of it. So that, even if the English commonlaw is applicable to this case, there must be proof of negligenceon the part of he defendant, and such negligence may be inferredfrom facts and circumstances in the absence of direct evidence.
As regards the plaintiff’s contributory negligence; I cannot seehow such a plea can be a defence in a case of this kind. The dutyis cast on the defendant by law of taking all the necessary precau-tions to prevent fire spreading, and if the plaintiff’s land is in a25/371 34 L. J. Ex, 181.
1924.
Jayewab-DBNB A.J.
Scmed v,Segutamby
( 500 )
1924.
Jayewah-DENE A.-J.
Samed r,Stgvt'ambu
condition likely to catch fire easily, the defendant’s duty becomesmore onerous, but it does not throw on the plaintiff the duty ofclearing and preparing his land to enable the defendant to bum hisjungle, weeds, &c., successfully and without damage to others.Otherwise we would be casting on the plaintiff a duty which thelaw nowhere imposes on him.
On the facts 1 see no sufficient reason to disagree with theconclusion arrived at by the Chief Justice, and I agree to the orderproposed by him.
Appeal allowed.