NILMINI DHAMMIKA PERERA VS. NALINDA PRIYADARSHANA

NILMINI DHAMMIKA PERERA VS. NALINDA PRIYADARSHANA
AND TWO OTHERS

SUPREME COURT
TILAKAWARDANE, J.
EKANAYAKE, J. AND
EVA WANASUNDARA, PC., J.
S. C. APPEAL NO. 67 /2012
SC/JCCA/LA NO. 360/2011
WP/HCCA/AV. NO. 565/2008
D. C. AVISSIAWELLA NO. 23240/M
MARCH 1ST, 2013

Delict - Vicarious Liability - Employer is liable for the negligent act of the employee - Damages for physical injury

The Plaintiff - Respondent - Respondent (Respondent) alleged that the 1st Defendant -Appellant-Appellant (Appellant), the owner of the lorry bearing No. WP CJ 2267 had deliberately knocked down the Respondent from behind, and after stopping the lorry, the driver along with the husband of the Appellant had got off the lorry and assaulted the Respondent. The Respondent was badly injured and at the time he gave evidence in Court, he was paralyzed below waist, on a wheel chair, due to the injuries he had sustained. The Appellant's husband and the driver were indicted for attempted murder in the High Court.

The appeal against the judgment of the District Court was dismissed by the Civil Appellate High Court. The High Court Judge concurring with the District Judge awarded Rs. 2 million as damages.

Held:

(1) English law principles of vicarious liability being similar to the Roman Dutch Law principles of vicarious liability in Sri Lanka, the English law principles have got accepted and adopted into the Sri Lankan law.

(2) Outcome of a criminal action is no bar to an action for damages before a Civil Court.

(3) The driver who drove was the employee of the owner of the lorry. The driver's wrongful act was done within the act of driving which he was employed
to perform by the owner of then lorry. Even if the wrongful act was unauthorized by the employer and criminal in nature, the employer is vicariously liable for the employee's action, thus malting the employer bound to pay damages caused by the employee.

(4) When a person gets injured due to a vehicle deliberately running into a person, it is prime-facie proof of the negligence of the driver. Only if the driver could prove contributory negligence on the part of the Respondent, the damages could be reduced or vitiated.

(5) As the owner of the lorry is vicariously liable to pay the entire amount of damages, the Plaintiff is entitled to claim and recover the money either from the owner of the lorry or from the driver of the lorry. The law does not provide for any apportionment of damages.

APPEAL from the Judgment of the Provincial High Court of the Western Province holden at Avissawella.

Cases referred to:

(1) Priyani Soyza Vs.Arsekularatne (2001) 2 Sri L.R. 293

(2) Lister Vs. Hesley Hall Ltd. (2002) 1 AC 215

(3) Dubai Aluminium Co. Ltd., Vs. Salaam (2003) AC 366

Maduranga Ratnayake for the 1st Defendant-Appellant - Appellant

Thishya Weragoda with Nishan Premathiratne, Mahela Liyanage and Niluka Dissanayake for the Plaintiff-Respondent - Respondent

Cur.adv.vult.

June 14, 2013
EVA WANASUNDERA, PC., J.

The two appeal cases bearing Nos. SC. 67/12 and SC. 68/12 have arisen out of one and the same Judgment of

the Provincial High Court of the Western Province holden in Avissawella, and therefore are consolidated for convenience with the consent of all the Counsel who appeared at the hearing, agreeing that one judgment would bind all the parties in both cases.

In this appeal No. 67/12 the Supreme Court granted leave to appeal on 21.03.2012 on the questions of law set out in paragraphs 11(a), (b), (c), (d), (f) and (h) of the Petition dated 09.09.2011. Both parties agreed at the hearing that they would confine the arguments only to question 11 (a) to read as "Did the Provincial High Court of the Western Province (holden at Avissawella) exercising its civil appellate jurisdiction, err in law when it held that the 1st Defendant was vicariously liable for the acts of the 3rd Defendant?"

The Provincial Civi

Click Here to Read the rest of this document