SAN'SOXI, J.—The Attorney-General v. Purushothamam
Present: Weerasooriya, J., and Sansoni, J.
THE ATTORNEY-GENERAL, Appellant, and S. S. M.PIJRT7SHOTH AM AM et al., Respondents
8. C. 575—D. G. Colombo, 33,655jM
Sailway—Loss of goods during transport—Owner’s right to claim damages—Negli-gence—•Quantum of proof—Railways Ordinance (Gap. 163), as amended byAct No. 18 of 1960, s. 16 (1).
Plaintiff aued the Attorney-General to recover damages for the loss of certain,goods and injury to other goods which were being conveyed by the Ceylon.Government Railway.
Meld, that under section 16 (1) of the Railways Ordinance, as amended bythe Railways (Amendment) Act, No. 18 of I960, the Government was not liable-unless the loss or injury had been caused by negligence or misconduct on the-part of their agents or servants. In such a case, the plaintiff must show inwhat respect the Railway authorities failed in their duty to exercise due diligence.
X1PPEAL from a judgment of the District Court, Colombo.
G. AUbs, Deputy Solicitor-General, with W. Laduwuhetty, for the-Defendant-Appellant.
N.KumarasingTbam, with S. Sharvananda, for the Plaintiffs-Respondents^
Cur. adv. wit.
January 31, 1958. Sansoni, J.—
The plaintiffs sued the Attorney- General in this action to recover the-sum of Rs. 3,084*77 as damages for the loss of certain goods and injuryto other goods which were being conveyed by the Ceylon Government-Railway from Talaimannar Pier to Jaffna.
The goods in question were loaded into a goods wagon at TalaimannarPier on the night of 27th September, 1951. The wagon doom werelocked on each side with two padlocks which were then covered withpaper, waxed and sealed. The padlocks in question have been describedin the evidence as “ big railway padlocks ” and also as “ very heavy*padlocks ”. The wagon formed part of a train which was re-formed at.Anuradhapura and then consisted of four passenger coaches, thirty-sixgoods wagons, and a guard’s van. This particular wagon was the 9thfrom the engine and the 31st from the guard’s van, which was at the rear-of the train. There were two guards on each train, and it was their duty
SANSONI, J.—The Attorney-General v. P-urushothamam
to watch, the wagons from the observation post on either side of theguard’s van. while the train was in motion, although they also had otherduties to perform.
Although a person cannot get on to a train which is travelling fast, itis possible for him to do so when the train has stopped or is movingslowly. For this reason the guards are expected to keep a close look outwhen the train is either entering or leaving a station, or when it hasstopped. The guards also have the duty of examining the goods wagonswhen the train stops at a station, if there is the time to do so.
The evidence shows that the re-formed train which left Anuradhapurafor Jaffna reached Navatkulli Railway Station at 7.01 p.m. and stoppedthere for 8 minutes. Under-guard Seevaratnam then examined all thewagons and found that the seals and padlocks were all intact. Whenthe train reached Jaffna at 7.24 p.m. it was discovered that a padlock ofthis wagon had been broken and certain goods stolen from it.
The learned District Judge has held that the theft took place betweenNavatkulli and Jaffna. The question he set himself to answer waswhether the plaintiff had proved that there was negligence on the partof the Railway authorities.
Under section 15 (1) of the Railways Ordinance, Cap. 153 as amendedby the Railways (Amendment) Act, No. 18 of 1950, ** the Governmentshall in no case be liable for the loss or destruction of, or any injury to,any property carried by the railway, unless such loss, destruction orinjury shall have been caused by negligence or misconduct on the partof their agents or servants ”. The learned Judge considered that on thefacts of this case the inference of negligence was inevitable. He pointedout that although goods wagons are padlocked with two padlocks oneither side, which are covered with paper and sealed, and the wagons areexamined at halts where there was time to do so, further preventivemethods should have been taken. He thought that there would not beeffective observation of the train from the guard’s van as there was onlyone guard on observation duty throughout the run, and there was onlyone guard’s van which was at the end of the train. It must not beforgotten, however, that observation at night hardly served any purposesince the goods wagons are not illuminated. Can it be said that therewere other precautions which should have been taken, and that thefailure to take such precautions amounted to negligence ?
The first plaintiff who alone gave evidence in support of his claim didnot suggest in what respect the Railway authorities had failed in theirduly to exercise due diligence. The learned Judge himself does notsuggest what other measures should have been taken to ensure thesafety of the goods. It can hardly be urged that the whole train' shouldhave been flood-lit or illuminated in such a way that a thief would be
SANSONT J.—The A-ttomey-General v. Purushothamam
-detected in the act of breaking into a wagon. Is there any other reason-able precaution that the Railway authorities should have taken to preventthefts after dark ? In this connection I think the statement of Willes J.that “ the plaintiff should show with reasonable certainty what parti-cular precaution should have been taken ” 1, is relevant. The same-Judge also said in another case “ it is not enough for the plaintiff to showthat he has sustained an injury under circumstances which may lead to a-suspicion, or even a fair inference, that there may have been negligenceon the part of the defendant; he must go on and give evidence of somespecific act of negligence on the part of the person against whomhe seeks compensation ” a.
I do not suggest that there may not he cases where the inference ofnegligence is plain, but I do not think that this is such a case. Thecharge here amounts to one that the Railway authorities omitted totake precautions which a reasonable person would take, and the prin-ciple which applies is best set out in the words of Lord Dunedin : “ Wherethe negligence of the employer consists of what I may call the fault of-omission, I think it is absolutely necessary that the proof of that fault of-omission should he one of two kinds—either to show that the thing whichhe did not do was the thing which was commonly done by other personsin like circumstances, or to show that it was a thing which was so ob-viously wanted that it would be folly in anyone to neglect to provide itIn Barhway v. South Wales Transport8 Lord Normand said that thisprinciple is one of general application, although- Lord Dunedin wasdealing with an action between employer and employee.
It has not been shown that other Railway systems adopt measures toensure the safety of goods which were not adopted in this case, nor canI see that there were any measures which were so obviously lacking, that-their omission amounted to negligence. I suppose one could argue thatapart torn illuminating all the goods wagons, such steps as providingburglar alarms throughout the train, or multiplying the number ofguard’s vans, would go a long way towards foiling the attempts ofcriminals to remove goods from Railway wagons. But it is necessary totake a practical view of these things, and in the absence of evidencebearing on these matters I am unable to say in what particulars theplaintiff has established negligence in this case.
I would therefore allow this appeal and dismiss the plaintiffs’ action-with costs in both Courts.
"Wberasoosiya, J.—I agree.
, 1 Daniel v. Metropolitan Ry. Company (1868) L. R. 8 C. P. 216.
3 Lovegrove v. London and Brighton Ry. Company (1864) 16 C. B. (N. 3.) 669.
9 (1960) 1 A. E. R. 329.