Mrs. B. NAMASIVAYAM, Appellant, and U. G. HEEN BANDA, Respondent

044-NLR-NLR-V-73-Mrs.-B.-NAMASIVAYAM-Appellant-and-U.-G.-HEEN-BANDA-Respondent.pdf


Namasivayam v. Heen Banda
551
1970Present : Alles, J.Mrs. B. NAMASIVAY.AM, Appellant, and U. G. HEENBANDA, RespondentS. C. 17/6S—C. R. Colombo, 94365Delict—Kon-mischievous animal—Mischief done by it—Liability oj owner—Honan-
Dutch law—Pauperian action—Noxal surrender—Obsoleteness oj doctrine.
Tho plaintiff, whilo ho was walking quiotly along a lano, was bitten by thodofondant’s dog noar tho house of the defendant. Thoro was no evidence toindicate that tho dog was of mischievous habits with a tendency to attackinnocent pedostrians. The plaintiff was awarded Us. 500 by the trial Court nscompensation for tho injuries suffered by him. Tho dofondant-appollantconceded that tho sum of Its. 500 was a fair compensation but submitted thatunder tho law of COylon sho was entitled to bo permitted, alternatively, tosurrender the dog or its valuo to tho plaintiff.
Held, that although the pauporian action is available in Ceylon and thoowner of tho animal is liable for tho full amount of the damage as compensation,the right of the ownor to surrender the offending animal in lieu of payingdamages (noxae deditio) is no part of our law today.
252
ALL.ES, J.—Famasivayam v. Ilccn Banda
A-PPEAL from a judgment of the Court of Requests, Colombo.S. Sharvananda, for the defendant-appellant.
N. D. Jayasuriya, for the plaintiff-respondent.
Cur. adv. vult.
June 5, 1970. Alles, J.—
This appeal raises interesting questions relating to the extent of a dogowner’s liability for injuries caused by his animal to an innocentpedestrian.
The plaintiff was a car driver employed under Mr. Shelton Silva ofMilagiriya Lane, Bambalapitiya. On the morning of 26th May 19C6 hewas on his way along Milagiriya Lane to a boutique to buy a newspaper,when the defendant’s dog came out of her house and to use his own words“ hung on to his hand ” ; he shook it off and then the dog jumped at himand attacked him. He struggled with the dog in an endeavour to holdits head but the dog shook him off and bit him again. On raising criesthe defendant’s driver came on the scene but did not interfere fearingthat he too would bo bitten. Thereafter the defendant’s driver broughta chain, tied the dog and led him away. The plaintiff had extensiveinjuries on his hands which prevented him from driving a car for threemonths ; he had to take treatment at the Medical Research Institute andspent a considerable sum on medicines. The learned Commissioner hasgranted to the plaintiff a sum of Rs. 500, which was the full amount ofthe compensation claimed by him in his plaint. Learned.Counsel for theappellant does not canvass the findings of fact nor does he dispute thatthe sum of Rs. 500 was a fair compensation for the injuries caused to theplaintiff, but he submitted that under the law of Ceylon he was entitledto the alternative remedy of surrendering the dog or its value. Thelearned Commissioner has held on the evidence that the dog bit theplaintiff without any provocation but there was no evidence to indicatethat the dog was of mischievous habit3 with a tendency to attackpedestrians.
In the Roman law there were three actions by which compensationcould be claimed for damages caused by a dog, the earliest of which wasthe Aciio de pauperie. Pauperies meant damage done without legalwrong on the part of the doer—damnum sine injuria facientis datum. Ananimal could do no legal wrong because it had no reason. It was onlymischief done by animals therefore, which constituted pauperies. Thoaction gave relief against the owner of a domesticated animal which actedviciously or from inward excitement contrary to the nature of its class.The basis of liability was ownership.
A1A.ES, J.—Namasivoyam v. Been Banda
253
The Aedilitian action prohibited the bringing or keeping of certainanimals on a public place or thoroughfare, either loose or so chained asnot to prevent their doing harm. It was founded on culpa in its widesense, but not on culpa in the sense of negligence. The Aquilian actiondealt with damage due to the legal wrong of the doer—damnum injuriadatum—but such damage might be due to negligence as well as to intent.It covered cases where the harm done by an animal resulted from thonegligence of a man. It is not alleged in this case that the defendant wasliable on the basis of culpa and it is not the case for the plaintiff thatthere was any negligence on the part of the defendant. Nor is it claimedthat the Aedilitian action has any application to the facts of this case.In the leading case of O'Callaghan v. Chaplin 1 the majority of the Court(Innes, C.J., de Villicrs, J.A., Kotze, J.A. and Stratford, A.J.A.) heldthat noxae deditio or the surrender of the animal was not a portion of theRoman Dutch law in force in South Africa. In doing so they followedthe view expressed earlier by Villiers C.J. in Parker v. Peed 2 but theCourt held that the decision in Parker v. Peed (supra) went too far whenit further decided that as a necessary consequence, the liability of anowner for damage done by his tame animals contra naluram sui generiswas also not a portion of the Roman Dutch law. Wessels J.A. howeverwho delivered the dissenting judgment stated that tho principle ofliability was based on culpa and not ownership. Said he in thoconcluding portion of his judgment:—
“ If a person keeps a dog he ought in law to bo hold to know thecharacter of tho animal. Some broods are notoriously apt to be orbecome vicious, and this the owner ought to know. If he keeps sucha dog he ought to keep it under control and if he fails to do so, hemust be presumed to be negligent. It is difficult to lay down anyhard and fast rule as to when there is culpa on the part of an owner orcustodian of a dog and when not, though by our law a plaintiff neednot allege and prove that the owner knew that his dog is vicious. ”
In O’Callaghan v. Chaplin there ivas an exhaustive analysis of the opinionsof tho Roman Dutch Law jurists of tho 17th and ISth century bytho learned Chief Justice of South Africa and Kotze J. A. and the ultimateview taken was that although the doctrine of noxal surrender had becomoobsolete, the law relating to pauperies was still in force in South Africa.The decision in O’Callaghan v. Chaplin was approved and applied inS.A.P. v. Edwards (1930) A.D. 3 at pp. 9, 10 (De Villicrs C.J., Wesscls J.A.,and Curlowis J.A.). Do Villiers C.J. and Wesscls J. A. sat on the Benchin tho earlier case of O’Callaghan v. Chaplin. De Villiers C.J. with whomthe other two Judges concurred held that tho Actio de pauperie was in fullforce in South Africa but that tho right to surrender the offending animalin lieu of paying damages (noxae deditio) was obsolete.
1 {1927) A. D. 310.• {190 J) 21 S. C. B. 496.
ALL.ES, J.—ya in asii ayam v. Hccn Banda
251
At pp. 9 and LO ho stated as follows :—
. " Tho action lies against tho owner in respect of harm (pauperies)done by domesticated animals, such, for instance, as horses, mules,cattle, dogs, acting from inward excitement (sponle feritate commoln).If tho animal does damage from inward excitement or, as'^it is alsocalled, from vice, it is said to act contra naluram sui generis ; itsbehaviour is not considered such as is usual with a well behavedanimal of the hind. ’’
The latest edition of McKerron on The Law of Delict (1965) p. 238 hasregarded the law on the subject as being now settled in Soiith Africaafter the decisions in O’Callaghan v. Chaplin and S. A. R. v. Edwards.
A consideration of the law in South Africa is necessary in order to appre-ciate the corresponding law in our country and decide to what extent thopauperian action has been introduced into Ceylon. Indeed it was thesubmission of learned Counsel for the appellant that in the absence ofany authority to the conti ary, the actio de pauperie inits purest form asit was understood in the Roman law was applicable to Cejdon and thatliis client was entitled to the alternative remedy of noxal surrender orpajmiont of tho value'of the animal.
I shall first deal with our local decisions before expressing my reasonsfor adopting the same view that found favour with the eminent Judgeswho sat on the Bench in O'Callaghan v. Chaplin and S. A. R. v. Edrvards.In 1SG0 in Folkard v. Anderson1 in an action brought by the plaintiff forinjuries caused to him by the defendant’s dogs the Commissionerdismissed tho action holding that proof of the dog3’ mischievous habits(technically called proof of scienter) was indispensable for the plaintiff’sright to a verdict; this would have been correct according to the. Englishlaw where proof of scienter was necessary before an owner can be heldliable but the Judges (Creasy C.J. and Morgan J.) held that the Englishdoctrine of scienter had no application to our law. After dealing withthe Roman and Dutch law in brief the Judges considered it desirable tostate the law applicable to the administration of justice in Ceylon in thefollowing terms :—
,“ Where a man’s brute animal does an injury to another person
(such injury not being done through more accident, and not beingprovoked and caused by the wrongful act of tho injured party, and notbeing immediately caused by the wilful act of a third person), theowner is always liable. But the owner’s liability is limited if the animalwere not of a genus naturally savage, and if also the individualanimal .were not of mischievous habits. The limit of the liabilityof such an innocent owner is this, the amount to be given for compen-sation must not exceed the value of the animal which did the injury.But if tho animal were of a savage genus, or if though not of a savage1 {1860.32) Ramanathan'e Reports, p. 68.
Al/LES, J.—Kamasivayam v. Hctn Banda
255
gonus, it were of mischievous habits, whether the owner knew thosehabits or not, tho owner must make full compensation for tho injurydone by the animal, and cannot limit the damages to bo assessed againsthim by the amount of the animal’s value.
There may bo cases in which animals not mischievous by genusor by habit, may be kept in such places and under such circumstanceas to mako them dangerous to the public. If in such cases injury isdone by such animals, the owner is liable to mako full compensation. ”
Applying these principles to tho case under consideration they hold thattho plaintiff was entitled to full compensation becauso thero was abundantevidence that the dogs were of mischievous babits.
In Jacobs v. Perera1 the plaintiff, a locomotive foreman, was attackedand bitten by the defendant’s dog near its master’s house when theplaintiff was quietly going along a public road to his daily avocations andwithout his having given the dog any provocation. The case cameup for trial before Berwick, District Judge of Colombo, a keen studentof the Roman-Dutch law. Berwick’s judgment in the District Court isreproduced in the New Law Reports and makes interesting reading. Heheld, on a question of fact, that it was not established in evidence thatthe dog was one of mischievous habits. “ If it was so ”, said Berwick“ there can be no doubt that the owner was guilty of, and responsible for,fault or negligence in allowing the animal to be loose on the public road,and must pay the whole value of the damage occasioned ; and he cannotevade this liability by either giving up the animal or its mere value ; ourRoman-Dutch Law having preserved, with only a few modifications, thespirit of the Roman Law on the subject as contained in the titles ” (hethereupon cites the relevant titles) " and this has been expressly recog-nised by our Supreme Court in the case of Folkard v. Anderson ”. Berwickhere deals with the liability for culpa under the Lex Aquilia and also withthe Actio de pauperie. Continuing with his judgment Berwick dealswith the proposition laid down in Folkard v. Anderson that the liabilitywas limited to tho value of the animal which did the injury and statesthat this observation of the learned Judges was obiter because there wasa finding in the case that the dogs were of mischievous habits. Hefurther contends that this proposition was not supported by the Romanlaw, where the rule was to condemn the defendant in the noxal action topay the full damage or surrender the noxa, as it was called and be thenabsolved from further liability ; and he had his choice which of thesohe would do. There is not a word in the Roman law about his payingthe value of the animal. Berwick supports his view from Voct and statesthat the texts draw a distinction between the word " noxa ” which meansthe delinquent corpus and “ noxia ” which means the damage done.Berwick’s ultimate finding was that the plaintiff should pay the fullcompensation decreed unless he forthwith surrender to the plaintiff the* {1816) 2 N. L. R. 115.
23C
ALICES, J.—Nnmnsirat/am v. Hcen Banda
dog in question, in which case he will be discharged from further liability.He was not bound to pay the value of the animal. When the case cameup before a Divisional Bench of three Judges (Anderson C.J., Stewart,and Clarence JJ.) the Court took the view on the facts, overruling Berwick,that it was established in evidence that the dog was of "mischievoushabits ” and consequently granted the plaintiff full compensation. Inthis view of the facts the Court considered it unnecessary to decide thefurther question whether it was open on the pleadingsfor the plaintiff toclaim that he was entitled to full compensation or whether the alternativeremedy of noxal surrender was available to the defendant. However,the decision is authority for the proposition that the pauperian actionwas part of our law. In the penultimate paragraph of the judgment, theSupreme Court appears to have approved the statement of the law laiddown in Folkard v. Anderson when it stated that “ the Supreme Court indealing with the legislation of Rome and Holland on the subject as appli-cable to Ceylon, put the value of the animal in the place of the animalitself. ” ■ There has, however, been no detailed examination of the lawcited by Berwick who came to the conclusion that the law was otherwise.Indeed in the later case of Thwaites v. Jackson1 Bonser, C.J., after holdingthat the actio de pavperie was available in Ceylon and after stating thatthe law on the subject of injuries by animals has been fully laid down inFolkard v. Anderson, added at p. 158 that—
“ There is, however, one statement in the judgment in that case whichI think the authorities hardly support. It is there stated that the limitof the liability of an innocent owner is that the amount to be given forcompensation must not exceed the value of the animal which did theinjury. I doubt whether that is a correct statement of the law. Myimpression is that there is no such limit to the amount of compensation.It is the duty of the Court to award the amount of damages, whateverthat may be, and the only way by which the defendant can escape thepayment of the full amount of the damages is by, surrendering theanimal which caused the injury.”
Bonser C.J.’s view supports Berwick D.J.’s criticism of the statement ofthe law in Folkard v. Anderson and that statement of the law musttherefore be subject to the infirmity that it does not correctly state thelaw on the subject.
In De Soysa v. Punchirala – Wood Renton J., sitting as a single Judge,felt himself bound by the statement of the law in Folkard v. Anderson andthe decisions in Thwaites v, Jackson and Jacobs v. Perera and made thefollowing observations :—
** If it (the injury) was caused by an animal which is ordinarily ofa gentle disposition, but which for the time being was acting contranaturam, the owner is liable by the mere fact of ownership, irrespective■of the question whether he was negligent or not, and it is open to him» (1S95) J N. L. B. 154.* (1907) 10 N. L. B. 254.
ALLES, J.—Samasivayam t Ilttn Banda
257
either to pay the damages which the offending animal has caused, or to-surrender the offending animal itself. This is one form of the actio depauperie (Inst. 4, tit. 9 ;'Dig. 9, tit. 1 ; and see 21, tit. 1 ; Voet 1, ix.tit. 1), and although an owner’s liability for injury caused by an animalbelonging to him, irrespective of his own culpa, has been held to beobsolete in South Africa (Nathan iii., ss. 1690-1691), I at least ambound to hold on the authorities above mentioned (and cf. also Jacobsv. Perera) that it is still in force in Ceylon.”
Therefore the law of Ceylon as it stood in 1907 would appear to have recog-nised the liability of the owner of the animal under the actio de -pauperiecoupled with the liability to surrender the offending animal, but notits value, in the case of an animal of gentle disposition which acts contranaturam in causing injuries to a person.
The question that presently arises is whether wo in Ceylon in the year1970 should yet be bound by the law laid down ovor a hundred years agoin Folkard v. Anderson. There are several reasons for taking the viewthat the statement of the law laid down in Folkard v. Anderson has nobinding force. We are dealing in tho instant caso with non-mischievousanimals whereas, as stated by Berwick in Jacobs v. Perera, tho dogs inFolkard v. Anderson were found to be dogs of mischievous habits and the“ opinion therefore as to the nature of the liability in the caso of non-mischievous habits was a more obiter dictum, and given in a solitary caso.”Berwick therefore felt himself justified in considering the question of lawan open one ; it has been established that the statement of the law to theeffect that tho liability was limited to the value of the dog was notjustified, a view that has been endorsed by Sir John Bonser in Thicaitesv. Jackson and finally, the statement having been made over hundredyears ago, it is relevant to considor whethor this principle has anypractical effect today.
With all respect to Wood Renton J., I am of tho view that it was opento him, if he thought that the law in relation to noxal surrender wasobsolete, to take such a view in De Soysa v. Punchirala. The decisionsin Thuailes v. Jackson and Jacobs v. Perera were decisions of a singleJudge and as I havo already indicated tho statement of tho law inFolkard v. Anderson did not have tho binding force which Wood Renton J.thought it had in 1907 and certainly today in 1970 the statement is oflesser efficacy than it was over 60 years ago. In Winter v. Mudiyanse1Counsel for the appellant sought to rest his caso on the principle of thonoxal action and cited De Soysa v. Punchirala but Bertram C.J. expressedtho view that the principle did not apply to a mere capricious orunexpected act of an animal which caused damage. The learned ChiefJustice had no occasion therefore to consider whether tho action- itselfwas obsolete and no argument was presented to him on such a view.
» (1920) 22 N. L. It. 153.
258
ALLES, J.—Namasivayam v. Been Banda
. I agree with Counsel for tho appellant (hat if the statement of tho lawin Folkard v. Anderson was binding on me, I would have to hold that thedoctrine of noxal surrender was part of our law, but in view of theobservations I have made about that case, and fortified as I am by theview taken by such an eminent Roman Dutch scholar as Berwick, I feelthat it is open to this Court to consider whether, today, the doctrine ofnoxal surrender should form part of our law.
In Parker v. Reed De Villiers C.J. has given very cogent reasons whyin 1904 the doctrine of noxal surrender has beoomo obsolete in the CapeColony. Ho traces the history of tho action in Roman-Dutch Law andconcedes that it was introduced into tho colony, but is doubtful whethertho action is still maintainable in tho Courts of the Colony. Said ho atpp. 502, 503—
“ In every case in which the owner of an animal has been holdliable in this colony for mischief done by it, there has been proof ofsome degree of culpa, rendering the owner liablo under the Aquilianlaw, rather than under the Law of tho Twelve Tables. In no case hasthe owner tendered to surrender the offending animal, in order by thatmeans to escape liability. It goes without saying that in a pastoralcountry like this cases of injury done by animals to each other or tohuman beings without any fault on the part of their owners, must be amatter of very frequent occurrence. The fact that the persons injuredhave never sought to recover damages without, at all events, allegingnegligence or circumstances from which culpa might be inferred, andthe further fact that persons whose animals did the mischief havenever attempted to escape further liability by surrendering suchanimals, go far to prove a general custom which is inconsistent with-the rule of the Roman law. Not only is there no reported case inwhich any South African Court has recognised that rule, but there are■several dicla of our judges which are somewhat at variance with therule.’'
…" Tho liability followed the animal or the slave, as the case
might be, and only attached to the owner so long as he remained theowner. It was a primitive law which is hardly consistent with modemnotions regarding tho nature of animals, and their relations to theirowners and others than owners.. If that law were still in force, someextraordinary results might follow. Supposing, for instance, a valu-able horse were causelessly and contrary to its usual habits to commita serious injury, and were then sold at a high price to a person who hadnever heard of the injury. Tho purchaser would be liable in damagesto the person injured, unless he were prepared to surrender the animal.The seller may have spent the money, or left the country, and pur-chaser would find (hat with the horse he had purchased a liability,which he could only get rid of by getting rid of the horse also. If suchis still the law, it must, of course, bo enforced, but it appears to mefairly to fall within the principles laid down in the case of Seavill v.
AX.LES, J.—Namasivayam v. Heen Banda
259
Colley (9 Juta, 39). The presumption is that the law relating topauperies is still in force, but this presumption cannot prevail in theabsence of any recognition, judicial or otherwise, of the existence ofsuch a law, and in tho face of repeated decisions, which require proofof some degreo of culpa in order to attach liability to tho ownership,custody, or use of property.’’
These observations might well apply to tho conditions in Coylon. Thereis no case in Ceylon where the principle of the noxae deditio has beenapplied in spite of dicta in the judgments already cited which maintainthat this alternative remedy is available under our law. Furthermore ifono of that breed of the canine species.which is popularly known as a" rice hound ” were to cause serious injury to a person which entailsheavy and expensive medical treatment for a considerable period, itwould be farcical if the owner of tho animal was able to discharge hisliability by tho expedient of offering to surrender such an animal. Itcan hardly be urged that by surrendering tho offending animal theequities of the situation have been satisfied.
The question whether the action 1ms fallen into desuetude depends onthe principle stated in Scaville v. Colley 1 referred to in the judgment ofDe Villiers J. in Parker v. Peed :—
' “ The presumption is that every one of these laws, if not repealed bythe local Legislature, is still in force. This presumption will not, how-ever, prevail in regard to anj' rule of law which is inconsistent withSouth African usages. The best proof of such usage is furnished byunoverruled judicial decisions. In the absence of such decisions theCourt may take judicial notice of any general custom which is not onlywell established but reasonable in itself. Any Dutch law whichis inconsistent with such well-established and reasonable custom,and has not, although relating to matters of frequent occurrence, beendistinctly recognised and acted upon by the Supreme Court, mayfairly be held to have been abrogated by disuse.”
These observations apply with equal force to the position of tbe law inCeylon and it may fairly' be assumed that the law relating to noxalsurrender in Ceylon has now fallen into desuetude.
I therefore think that learned Counsel’s contention that his clientshould have been permitted, if he so wished, to surrender the dog to theplaintiff as an alternative remedy has no foundation either on theprinciples of common sense or the development of the law in Ceylon.Although the pauperian action is available in Ceylon and the oAvner ofthe animal is liable for the full amount of the damage as compensation,tho alternative remedy of the noxal surrender is no part of our Isav. Theappeal is therefore dismissed Avith costs.
Appeal dismissed.
1 9S. O. p. 39 at p. 44.