044-NLR-NLR-V-22-WINTER-v.-MUDIANSE.pdf
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Present: Bertram C. J. and De Sampayo J.WINTER v. MUDIANSE.
33—D. C. Kandy, 26,497.
Buffalo straying on the road—Car sustaining damages in attempt toavoid collision—Action against owner of buffalo -for damages—-Negligence—Noxal action.
The plaintiff, going along a road in a car, applied the brake toavoid a collision with a stray buffalo crossing the road. The carskidded, struck a building, and sustained damage. The plaintiffsued the owner of the buffalo i6r damages.
Held, that the claim was bad a& th^Lefendant was not guilty ofnegligence, as there was neither a common law duty nor at thedate of the accident (before December, 1918) a statutory duty notto allow a buffalo to stray on the public road.
The principle of a noxal action does not apply to a mere capri-cious or unexpected act of an animal not in itself of a nature tocause damage.
r| ^HE facts appear from the judgment.
Cooray, for the appellant.
Croos-Dabrera (with him Amlanandan), for the respondent.
July 22, 1920. Bebtbam C. J.—
This is an interesting but very simple case. It is the case ofsome motorists coming along a public road and a stray buffalocrossing the road immediately in front of them. The chauffeurapplies the brakes to avoid a collision. Unfortunately, the car isat a muddy or grassy spot. The car skids, and is propelled withsome violence into a neighbouring ambalam, suffering considerable.damage. The District Judge has found there was no negligence onthe part of the defendant in the ordinary sense, but that, if therewas any breach of any common law or statutory duty, he considersthat the plaintiff was guilty of contributory negligence and socannot recover.
First of all, in regard to the alleged negligence on the part of thedefendant. The defendant was the owner of a buffalo, and it issuggested that it was negligence on his part to allow his buffalo tobe on the public road. If there was any negligence, it must consistin a breach of a common law duty, for, at the time when thiscollision occurred, there was no statutory obligation for the ownerof a buffalo to lake measures to prevent his animal straying on the
1929
1920.
Bertram
O.J.
N Winter V.Mudiyanee
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public road. Since the accident occurred there has been an amend-ment of the law. Section, 94 (1) of the Road Ordinance, No. 10 of1861, originally did not apply to buffaloes. By a subsequent amend-ment of the law introduced in the year 1918 the provision wasextended to include all animals. That amendment has since beenembodied in the new Local Government Ordinance, No. 11 of 1920,and' by section 102 (1) of that Ordinance it is enacted, for the firsttime, in express terms, that “ whosoever shall turn or suffer to beturned loose any buffalo . .. . . or other animal on to or intoany thoroughfare shall be guilty of an offenceThat, however, wasnot the state of the law at the time of this occurrence. In thecircumstances of this country, in agricultural districts buffaloes areallowed to stray freely into paddy fields, not under actual cultiva-tion, and may make their Way to the roads, and I do not think that,in view of’the customs of the country, there was any obligation onthe owner of this buffalo to k^pp it under restraint. I do not see,"therefore, that the fact of this animal being upon the public roadis in itself proof of negligence on the part of its owner. So far,therefore, as this action rests on this supposed negligence I think itmust fail.
Mr. Cooray, who appeared for the appellant, attempted, as analternative, to rest his case upon the principle which is expoundedin Voet 1, 0, i, namely, on theprinciple of the noxal action, andcited the case of De Soysa v. runchiralu.1 He said that, inde-pendently of any question, of negligence, if an animal belonging toany person does a wrongful act which causes damage, the ownerof the animal is liable in damages to the extent at least of its value.He cited, however, no case in which that principle had been appliedto an act which is not in the nature of an aggression. I do notthink that that principle applies to a mere capricious or unexpectedact of an animal not in itself of a nature to cause damage. Noauthority has been cited for the proposition, and from a cursoryexamination of the chapter in Voet it does not seem to me to coversuch a case.
But oven if we were to assume that there was any breach of dutyon the part of the owner of the animal, or that he had a respon-sibility independently of any breach of duty, we have still to dealwith the finding of the District Judge that there was contributorynegligence on the part of the plaintiff. The District Judge himselfvisited the spot. He saw the place from which the car had skiddedinto the ambalam, and he realized by personal examination the• extent of the damage done to the ambalam by the contact with thecar, He was thus in a position to estimate the force with whichthe car was propelled into the ambalam. The District Judge usescertain expressions about furious driving which may not be fullyjustified by the evidence, and which, I think, are not neoessary for
1 (1907) 10 A7. L* R. 254.
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the purpose of his finding. His criticism of the driver seems to meto be rather too severe. But viewing the spot, seeing the fact thatthe accident took place at fourcross roads by a collection of boutiqueswhere at the time a cart was standing, observing the force with whichthe car must have come into contact with the ambalam, he cameto the conclusion that it would not have so come into contact withthe ambalam if it had been travelling at a more moderate pace.He formed the opinion that the paoe at which the car was travellingwas not such as was justified by the local circumstances, that thedriver ought to have slowed down when approaching the comer,and that as he failed to do so contributory negligence was proved.It does not seem to me that, apart from the expressions to which Ihave alluded, this finding of the District Judge is open to criticism.In my opinion the appeal should be dismissed, with costs.
De Sampayo J.—I agree.
Appeal dismissed.
1920.
Bertram
C.J.
Winter v.Mudianee