080-NLR-NLR-V-47-URBAN-COUNCIL-KURUNEGALA-Appellant-and-BAND-Respondent.pdf
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CANNON J.—Urban Council, Kurunegala v. Banda.
1946Present: Cannon and de Silva JJ.URBAN COUNCIL, KURUNEGALA, Appellant, andBANDA, Respondent.59—D. C. Kurunegala, 2,017.
Tort—Action against Urban Council for damages caused by lorry employedon scavenging work—Notice of action necessary—Time limit forinstitution of action—Urban Councils Ordinance, No. 61 of 1939ss. 131, 231 (1) and (2).
Where an Urban Council was sued for damages for injury caused bythe negligent driving of a lorry driver employed by the Council andIt was established that the lorry was employed on scavenging workat the time of the accident—
Held, that the plaintiff should have, under section 231 (1) and (2) ofthe Urban Councils Ordinance, given one month’s notice to the Councilof intention to sue them and that he should have instituted the actionwithin six months next after the accrual of the cause of action.
^ PPEAL from a judgment of the District Judge of Kurunegala.
B. Wikramanayake, for the defendant, appellant.
A. P. Wijeyeratne (with him G. T. Samarawickreme), for the plaintiff^respondent.
Cur. adv. vvlt.
March 8, 1946. Cannon J.—
This was an action against the Kurunegala Urban Council for damagesfor injury caused by the negligent driving of a lorry driver employedby the Council. A preliminary objection was taken that the plaintiffhad not complied with the Urban Councils Ordinance of 1939, s. 231
and (2), which requires notice to be given to the Council of intentionto sue them and imposes a time limit for the commencement of theaction of six months from the date of the cause of action. It wasadmitted that no such notice was given to the Council and that thetime limit had been exceeded. The District Judge did not uphold theobjection, apparently on the ground that s. 231 had no application tocases of negligent driving. The appeal is against that decision.
The requirements of s. 231 apply to any action against the Council“ for anything done or intended to be done under the powers conferredby this Ordinance ”, Section 131 of the Ordinance makes it the dutyof the Council to take all measures necessary for scavenging ; and itwas admitted for the plaintiff that the lorry was employed on scavengingwork at the time of the accident.
But while conceding that the driver was acting within the scope ofhis employment, Mr. Wijeratne contended that the accident happenedwhile he was doing something collateral to the-act intended to be done.Whatman v. Pearson 1 was cited for this preposition. That case wasrelied upon in Edward v. Vestry of St. Mary, Islington 2, in which theplaintiff was a driver employed by contractors, who had contractedwith the Vestry to provide them with horses and drivers for their cartsi L. R. {1868) 3C.B. 422.* {1889) 22 Q. B. D. 338.
CANNON J.—Urban Council, Kurunegula v. Banda.
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used in watering the streets under statutory powers. The defendantVestry negligently supplied a cart with a defective axle, in consequenceof which the plaintiff, while driving the cart to water the streets wasthrown off and injured. In an action for damages sustained throughthe defendant’s negligence, the Judge left to the Jury the questionwhether the defendants were guilty of such negligence as would entitlethe plaintiff to recover. The Jury found a verdict for the plaintiff,damages £ 100. The Judge entered judgment for the defendants onthe ground that no notice of action had been given to them, nor had.the action been commenced within six months next after the accrualof the cause of action, so as to satisfy the requirements of s. 106 of 25and 26 Viet., c. 102. This section makes provision for notice and a timelimit similar to s. 231 in the Ceylon Ordinance above mentioned asregards any action against a Vestry “ for anything done or intendedto be done under the powers ”, &c. On appeal the Court of Appealheld that the defendants were entitled to notice of action under 25 and26 Viet., c. 102, b. 106, because the supply of the water-cart to theplaintiff for the purpose of watering the streets was a thing “ done orintended to be done ” under the powers of the Vestry under the Actempowering them to water the streets. Bowen L.J. at page 342*referring to Whatman v. Pearson, (supra) said :—
*• That case is entirely distinguishable. The action was againstthe contractor, not against the Board. The negligence was thenegligence of one of the servants employed by the contractor tocart away the soil. Contrary to his instructions, the servant wenthome, taking his horse with him and leaving it in the street outsidehis house whilst he had dinner. The horse ran away and damagedthe plaintiff’s railings. The Jury found and the Court upheld thefinding, that the servant was acting within the scope of his employmentby the contractor. The contractor, therefore, in order to escapeliability, had to prove that what was done was under the powers ofthe Board under the Statute. The Court held that he was not soacting, but that what he did was wholly collateral and not withinthe scope of any authority conferred by the statute”.
In the present case the question is whether this accident which, butfor the provisions of s. 231 with regard to notice and time limit wouldgive an ordinary right of action to the plaintiff, happened in consequenceof something done or intended to be done under the powers of theCouncil. In order to collect refuse the Council must obviously supplyvehicles, and in my opinion this action must be treated as one foundedon the breach of a duty by the Council to supply carefully-driven vehiclesfor the scavenging duties and powers which s. 131 imposes on them.Notice was therefore required under s. 231 and the time limit alsoapplied.
I allow the appeal and set aside the order of the District Judge anddismiss the plaintiff’s action. In the special circumstances, howeverthere will be no order as to costs.de Silva J.—I agree.
Appeal allowed.