122-NLR-NLR-V-55-W.-M.-D.-D.-G.-WIJERATNE-Appellant-and-K.-D.-GABRIEL-Respondent.pdf
GRATIAEU J.—Wijeralne v. Gabi iel
433
Present : Gratiaen J. and Fernando A.J.
W. M. D. D. G. WIJERATNE, Appellant, and K. D. GABRIEL,
Respondent
&. (’. 451—D. C. Colombo, 19,487m
Delict—Actio legis Aquiliae—Compulation of prescriptive period—-Damage is gist,of action—Prescription Ordinance {Cap. 55), s. 9.
In actions under the lex Aquilia and in other actions in which proof ofpatrimonial loss is a condition of liability, the period of prescription does notbegin to rim until some damage has actually occurred.
Plaintiff was the Headmaster, and the defendant an Assistant Master, of aschool. Plaintiff alleged that defendant “ falsely and maliciously in order toput the plaintiff into trouble and to cause him loss ’’ falsified certain attendanceregisters of the school on June 15, 1944, and that in consequence of an investi-gation by his employers into these irregularities his services as Headmasterwere discontinued on December 1, 1947. He claimed that a cause of actionaccrued to him for the recovery of Its. 7,500 as damages from the defendant.Defendant pleaded that tlte action, which was instituted on May 28, 1948, wasprescribed.
Held, that the date of commencement of the prescriptive period of twoyears under section 9 of the Prescription Ordinance was December 1, 1947,and not June 15, 1944.
j^^.PPEAL from a judgment of the District Court, Colombo.
N. E. Weerasooria, Q.C., with C. G. Weeramantry, for the plaintiffappellant.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendantrespondent.
Cur. adv. vult.
May 26, 1954. Gratiaeist J.—
This is an appeal against a judgment upholding, on a preliminaryissue of law, a plea that an action for damages instituted on 28th May,1948, was prescribed. The defendant had raised a further preliminaryissue as to whether the averments in the plaint disclosed a cause ofaction against him, but this plea was eventually withdrawn.
Section 9 of tfife Prescription Ordinance admittedly" governs the case,so that the action could not be maintained unless it was instituted" within two years from the time the cause of action shall have arisen ”.The dispute is as to when precisely (assuming the averments in the plaintto be true) the plaintiff’s cause of action first accrued to him. -In the
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2J. If. B 36491-1,502 (G,y>4)
434
GRATIAEN J.—Wijeratne v. Gabriel
absence of any allegation of concealed fraud, the period of limitationbegins to run “ from the earliest time at ■which an action could be brought ”—Beeves v. Butcher L1
We must first analyse the averments in the plaint (after discountingits unnecessary and irrelevant flourishes) so as to ascertain the truenature of the cause of action on which the plaintiff based his claim. Itis alleged :
that the plaintiff had at all relevant dates been the Headmaster,
and the defendant an assistant master, of St. Lucia’s (BilingualSchool in Kotahena (paragraphs 2 and 3) ;
that the defendant “ falsely and maliciously in order to put the
plaintiff into trouble and to cause him loss ” falsified certainattendance registers of the 3chool on 15th June, 1944 (paragraphs5 and 7) ;
that in consequence of an investigation by the plaintiff’s employers
into these irregularities his services as Headmaster were dis-continued on 1st December, 1947 (paragraph 6), and he sufferedconsequential loss and damage which he assessed in a sum ofIts. 7,500 (paragraph 8) ;'<< *1
that a cause of action had accrued to the plaintiff to sue the
defendant, for the recovery of such damages (paragraph 8).
The question for our decision is whether, if these averments he true, thecause of action originally arose on 15th June, 1944 (as the learned judgehas held) or whether it only became complete on 1st December, 1947,when the plaintiff lost his professional employment as Headmaster asa direct consequence of the irregularities maliciously committed by thedefendant on the earlier date. If the latter view be correct, the plea ofprescription admittedly fails.
The gist of the plaintiff’s complaint :'s that he suffered patrimonialloss on 1st December, 1947, and that the £i real and proximate cause ofthe loss or injury ” was the wrongful conduct of the defendant (committedon 15th June, 1944, and specified in paragraphs 5 and 7 of the plaint).
The analogy of the English decisions where in the case of certain torts,“ the proof of real damage is the foundation of the plaintiff’s right ” isinstructive, because in such a situation the cause of action arises onlywhen the plaintiff’s enjoyment of his rights (whether they be of propertyor employment or < ake some other form) has been interfered with “ bythe actual occurrence of the mischief ”—Backhouse v. Bonami 2, DarleyColliery Co. v. Mitchell 3.
In this country, if an aggrieved party’s claim is base/1 on an actionablewrong, the question as to when his cause of action first arose must ofcourse be answered with reference to the Roman-Dutch law. In actions
under the lex Aquilia a-nd in other actions in wh'ch proof of patrimonial loss
■ ■ < * .
1 (1891) 2 Q. B. 509 at 511.
* (1861) 9 H. L. C. 543 (-11 E. R. 825).
8 (1886) 11 App. Cas. 127.
GRATIAEN J.—Wijeratne v. Oabriel
435
is a condition of liability, the period of prescription, (as in England) doesnot begin to,, run until some damage has actually occurred. Gardiner
J.P. summarised the law as follows in Coetzee v. S. A. R. 1 :
“ There is no * cause of action ’ until everything has happenedwhich would entitle the plaintiff to judgment. Now in delict, a■wrongful act or omission does not always by itself entitle a personcomplaining of it to judgment. There are cases where it does, e.g.,where coniumelia is involved. But there are many cases where thewrongful act does not give the plaintiff a right to judgment unlessdamage has been sustained, and the damage need not he contemporaneouswith the wrongful act …. There may be a wrong without,at the time, any damage, and after an interval damage may for thefirst time result.”
As the present action was instituted within two years of the date onwhich the plaintiff claims to have suffered damage through deprivationof his employment as Headmaster of the school, the learned judge wasnot justified in deciding the preliminary issue of prescription in favourof the defendant.
Certain local decisions wtye referred to us in which the impact of section9 of the Prescription Ordinance (and of analogous statutory provisions)on actions for delict has been discussed—Alla Pitche v. Adams 2, Karolisv. Woutersz 3, Wadurala v. Sunderland Rubber Co. 4 and SuppramaniamChetty v. Fiscal W. P. °. The true principle is that where an act whetherlawful or wrongful at its inception is not actionable per se, but becomesso only by reason of consequential damage, prescription runs only fromthe actual happening of the damage.
The learned judge seems to have assumed that this principle is confinedto cases where the conduct complained of was at its inception “ lawful ”but nevertheless becomes actionable when it subsequently caused damageto the plaintiff. This is not correct. In England, some categories of“ wrongful acts ” are not actionable unless and until they have causedactual damage to the aggrieved party—e.g., negligence, nuisance anddeceit—Pollock on Torts (14th Ed.) pp. 150—1. Similarly, under theRoman-Dutch law, “ the actio legis Aquiliae is only available for aninjuria resulting in pecuniary loss (damnum injuria data) ”—Mattheivs v.Young 6.
In the present case, “ damage is the gist of the action ”, and the insti-tution of proceedings by the plaintiff before he actually suffered pecuniaryloss would have been premature—because his cause of action was in-complete until the defendant’s alleged plan (previously conceived andput into execution) succeeded in its purpose.
I observe that in Nelson v. Municipal Council, Colombo 7 this Courtwent so far as tb hold that “where a cause of action accrues to. theaggrieved party only at the date of the occurring of actual damage, afresh cause of action arises in respect of each succeeding damage ”,
(1933) C. P. D. 565.* (1914) 18 N. L. R. 76. ■•
(1877) Ram. Rep. 338.5 (1916) 19 N. L.'R. 126.
(1888) 8 S. O. G. 153.« (1922) S. A. A. D. 492 at 504.
7 (1909) 13 N. L. R. 43.
436
Appuhamy v. Attorney-General
This may well be so where the act complained of was ab initio lawful,or in the case of a wrongful act which in truth constitutes, a continuingcause of action, but not otherwise. “ Where a negligent or wrongfulact has caused some damage, a right of action accrues immediately for allthe damage flowing from the unlawful act, including prospective damage ”—Oslo Land Co. v. Union Government1. In situations of that kind, thedifficulty of assessing the prospective damage cannot alter the fact thatthe cause of action has in fact already occurred.
In my opinion the judgment under appeal should be set aside and thecase remitted for trial according to law on the merits. Should theplaintiff ultimately succeed in establishing a good cause of action, thedamages awarded to him must of course be restricted to the pecuniaryloss (actual and prospective) sustained or to be sustained on or “after1st December, 1947, by reason of the injuria complained of. Theaverment that the plaintiff had, in addition, “ suffered pain of body andmind ” is extraneous to the true cause of action and therefore irrelevantto the issue as to damages.
The defendant must pay to the plaintiff the costs of this11 appeal and ofthe abortive trial. All other costs will be costs in the cause.
Fernando A.J.—I agree.
Judgment set aside.