092-NLR-NLR-V-44-PARMSOTY-Appellant-and-VEENAYAGAMOORTHY-et-al.pdf
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Parmsoty and Veenayagamoorthy.
1943Present: Moseley and Keuneman JJ.
PARMSOTY, Appellant, and VEENAYAGAMOORTHY et al.
262—D. C. Jaffna, 15,713.
Tort—Action for damages to car—Ownership of car—Defence of justification at
Law—Negligence of defendant.
Where a person brings an action for damages caused to a car by thenegligence of the defendant and for personal injuries caused to himselfit would be sufficient in order to sustain his cause of action if he has onlya limited interest in the car.
Where the defendant has discharged the onus laid upon him of provingthat his act was justified by law, it is open to the plaintiff to prove thatthe defendant is not entitled to the protection of the law because thepowers conferred upon him by statute were exercised negligently.
Appeal from a judgment of the District Judge of Jaffna.
The facts appear from the headnote and the argument.
A. Rajapakse (with him C. T. Olegasegaram), for the plaintiff,appellant.—The plaintiff’s claim has been dismissed • chiefly on theground that the plaintiff was not the owner of the car in question. It issubmitted that the evidence in the case sufficiently proves the ownershipof the plaintiff. The fact that the car was registered in the' name of theplaintiff’s brother is not conclusive evidence of that brother’s ownership—Sarasinghe v. Wijedasa ’.
Even if the plaintiff was not the owner of the car he had a sufficientinterest in it to enable him to bring, this action Nathan’s Law of Torts{1921 ed.), pp. 62-63.
N. Nadar a] ah, K.C. (with him H. W. Thambiah), for the defendants,respondents.—The defendants are public servants and were bona fidedischarging a statutory duty when they stopped cars suspected of carryingcontraband. They are peace officers within the meaning of section 2 ofthe Criminal Procedure Code, and were acting lawfully. See sections 23and 32 (1) (b) of the Criminal Procedure Code ; sections 31 (1) (2), 71, 75,27, 28, 31, 76 of Dangerous Drugs Ordinance (Cap. 172) ; sections 27, 28,31, 71, 76 of Customs Ordinance (Cap. 185). No action will lie for doingthat which the Legislature has authorised if it be done without negli-gence—David Geddis v. Proprietors of the Bann Reservoir2, UnionGovernment v. Sykes’, Jayawardene v. William Nathan’s Law of Torts,p. 8, McKerron’s Law of Delict (2nd ed.) 87, Costa v. Sinho
It cannot be said that the plaintiff vjas the owner of the car. He hadmerely a limited interest in it. See McKerron’s Law of Delict (2nd ed.),126.
A. Rajapakse in reply.—The defence of statutory authority must beexpressly pleaded and strictly proved. The provisions of the law underwhich the defendants acted were not pleaded.
1 (1920) 8 C. W. R. 3.* S. A. L. R. '(1913) A. D. 156 at P. 169.
– L. R. (1878) 3 A. C. 430 at 454-6.4 (1920) 21 N. L. R. 379 al P. 381.
s (1903) 7 N. L. R. 287.
362MOSELEY J.—Parmsoty and Veenayagamoorthy.
The exercise of statutory power is limited by an important considera-tion, namely, that it must be carried out without negligence—McKerron’sLaw of Delict, pp. 88-89. In the present case there was definite proofand finding of negligence. The practice of stopping motor vehiclesin the manner adopted in this case has been condemned—Ossen v. ExciseInspector Ponniah Excise Inspector, Elephant Pass v. RegunathapillaiThe wrong of trespass consists in the unlawful disturbance of anotherperson’s possession, and is essentially a wrong to possession and not toownership—McKerron, pp. 214, 126.
Cur. adv. vult.
July 6, 1943. Moseley J.—
The respondents to this appeal are respectively the Udaiyar ofPandaiterrippu and the Kirama Vidhane of Mathakal. It is notdisputed that on September 22, 1939, they were in receipt of informationof the arrival of a ship with “ contraband ”. In order to intercept carsby means of which they suspected the contraband would be transportedand, if necessary, to arrest persons concerned in the transportation, theystationed themselves on the road which runs from Kayts to Kankesan-thurai. Having failed in their efforts to stop by signal the first car topass, they proceeded to barricade the road by placing across it the trunkof a palmyra palm and reinforcing the obstruction by tying a rope at aheight above the trunk of the palm. The appellant who was returningfrom Kayts by car with two friends at about 1 a.m. on the 23rd saw theseobstacles when he was 15 or 20 yards distant from them. He appliedhis brakes but, the road being wet after recent rain, the car skidded andcollided with the palmyra trunk. The appellant and the car bothsustained injuries in respect of which the appellant sued the respondentsfor damages. The parties went to trial on a number of issues. It issufficient at the moment to say that, with one exception, these wereanswered generally in the appellant’s favour. At the close of the exami-nation-in-chief of the appellant, however, the following issue was framed: —“XI. Was plaintiff the owner of the car in question on the datesmaterial to this action ? ”
The issue was answered in the negative and the learned Judge heldthat it followed that the appellant was not entitled to recover damages.Holding further that the respondents’ act was wrongful, he, whiledismissing the action, ordered the parties to bear their own costs. It isnot, I would say, easy to understand why, upon this finding the appellantshould have been deprived, for example, of the damages which he claimedand for which the learned judge found to some extent in his favour, inrespect of medical expenses and pain of mind and body. These areclaims on which the appellant should have succeeded irrespective ofownership of the car. But the matter, I think, goes further. Issue XI.was answered in the negative upon the evidence that the appellant’sbrother Was registered under the Motor Car Ordinance as the owner of thecar. Moreover the appellant in his report to the Police, made a fewhours after the incident, described his brother as the owner of the car,1 (1932) 34 N. L. R. 50.! (1933) 14 C. L. Ree. 123.
MOSELEY J.—Parmsoty and Veenayagamaorthy.
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and in the light of that evidence it seems to me impossible to say that thelearned Judge was in this respect wrong. But does the fact of non-ownership deprive the appellant of the right to sue for the damagecaused to the car ? Counsel for the respondents relied upon a passagewhich appears in McKerron’s Law of Delict (2nd edition, page 126)which implies that a non-owner has no cause of action unless he provesthat he is in possession of the property and has a limited interest therein.Now, in this case, the appellant explained why the car was registeredin his brother’s name, namely, that the latter had advanced Rs. 450towards the purchase price of the car, but his evidence that the car wasin his possession, that used it for the purposes of his business, andthat he himself paid the account for the repairs necessitated by theincident, all goes to prove that he had at least a limited interest in thecar. Moreover as is observed by McKerron, at page 214 of the workabove quoted* “ Trespass is essentially a wrong to possession and not toownership. An action for trespass can therefore be maintained by anyperson in lawful occupation or possession of the property at the date ofthe trespass. Thus a bailee can sue for a trespass causing damage to thegoods the subject of the bailment .. .. ”
In my view therefore the learned Judge erred in dismissing the actionon this ground. He appears, further, to have thought, that if theappellant was acting within the scope of the employment of a thirdparty (and he found as a fact that he was so acting) that the action must'necessarily fail. In arriving at this conclusion he was seriously mis-directed himself as to the effect of the authorities upon which he relied.These authorities deal with the liability of a master for the tort of a servantcommitted while acting within the scope of his eniployment, and do notaffect the right of a servant to sue.
Counsel for the respondents, while supporting the judgment, did somainly upon another ground. The respondents who, as has alreadybeen stated, were public servants, pleaded in their answer that theyacted in good faith in the lawful discharge of their duties and that there-'fore no action was maintainable against them. Bearing on this pointissues 1 and' 10 were framed and answered as follows : —
“ 1. Was the act complained of in paragraph 3 of the plaint doneby defendant wrongfully and without any warning to the Public ?(Answer : Yes).*
10. Were defendants acting bona fide in the discharge of theirduties as public. servants ? (Answer: Yes, but it does not mean thatbona fides exonerates the-defendants) .
Counsel contended that the answers to these issues are mutuallycontradictory, and that the learned Judge in finding that the respondentswere, even in a qualified fashion, acting bona fide in the discharge of theirduties, was inconsistent in finding that they were acting wrongfully andwithout any warning to the public. I do not myself find any difficultyin reconciling the answers to these two issues, even if one acceptsunreservedly Counsel’s contention that the respondents were performinga statutory duty imposed upon them by the Criminal Procedure Code,
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MOSELEY J.—Parmsoty and Veenayagamoorthy.
the Poisons, Opium and Dangerous Drugs Ordinance and the CustomsOrdinance. Each of these Legislative acts, no doubt, confers a duty orright to arrest and to resort to various services towards effecting arrest,and Counsel quoted from Nathan’s Law of Torts (-page 8), to the effectthat “ if a man does that which the law justifies him in doing, he commitsno delict Assuming that a defendant has discharged the onus laidupon him of proving that his act was justified by law, it is, however,open to the plaintiff “ to show that the defendant is not entitled to theprotection of the statute because the powers conferred were exercisednegligently. Negligence in this connection means the failure to takereasonably practicable measures to. prevent the damage complained of.”McKerron’s. Law of Delict (2nd edition, page 89). It seems to me thatthe learned Judge, if he had in mind this principle of law which seemsto me to be well-established, could well answer issues 1 and 10 as he did.The second respondent gave evidence to the effect that he and the firstrespondent stood in front of the obstruction and signalled to approachingcars to stop by calling out “ stop stop ” and raising their hands. Hewore his badge, characterised by the learned Judge as “ puny ”, and hadhis diary, perhaps equally puny; in his hand. With them, he said,were 10 or 12 other people to assist if necessary. The appellant testifiesthat there was no one on the road, that no one signalled, and that no oneapproached until a few minutes after the car came to a halt. Even if oneaccepts the second respondent’s version, can it be said that the respondentstook reasonably practicable measures to prevent such damageaswascaused?The appellant says that he applied his brakes as soon as he saw theobstruction and that in spite of that the car struck the palmyra trunk.It could hardly be suggested that he did not do everything in his powerto avoid a collision which must inevitably cause damage. In thecircumstances I think it may fairly be said that the obstructing of a mainroad in this manner without taking effective steps to avoid such damageis, to put it at its very lowest, a negligent act. It seems to me, that in theevent, the respondents cannot escape liability, notwithstanding the bonafides of their actions.
Counsel for the appellant has criticised the action of the learned Judgein reducing the amounts claimed in respect of medical expenses anddamages for non-user for the period for which the car was. out of action.Although the appellant’s evidence in support- of these items was notcontradicted, I do not propose to interfere with the opinion of the learnedJudge expressed after hearing the evidence. The amounts which theappellant is entitled to recover under the various heads are as. follows : —Repairs to car; Rs. 351, non-user: Rs. 50, medical attendance : Rs. 25,pain of mind and body : Rs. 150, total: Rs. 576.
I would, therefore, allow the appeal with costs. The judgment of thelower court is set aside and judgment entered for plaintiff for Rs. 576 andcosts.
Keuneman J.—I agree.
Appeal allowed.