Kulatungam V. Sabapathi Pillai

 

Present: Mr. Justice Wendt and Mr. Justice Grenier.

 

KULATUNGAM v. SABAPATHI PILLAI et al.

 

D. C., Batticaloa, 2,956.

 

Damage of property leased by fire-Accident-Burden of proof-Roman-Dutch Law.

Where property leased is destroyed or damaged by fire, while in the occupation of a lessee or tenant, the onus lies on the lessee or tenant to prove that it was due to accident and not to negligence.

Bastian Pillai v. Gabriel1   followed.
 
    THE plaintiff sued the defendants, who were tenants of a house belonging to him, for damages for the destruction of the house by fire while in the occupation of the defendants. The District Judge dismissed the plaintiff's action, on the ground that no negligence had been proved on the part of the defendants.
The plaintiff appealed.

 

 Bawa, for the plaintiff, appellant.

 

Van Langenberg (with him Balasingham), for the defendants, respondents. 

Cur. adv. vult.

 

October 6, 1908.    WENDT J.-

 

The plaintiff seeks to recover damages for the destruction of his house by fire while in the occupation of the defendants, his tenants. There was no direct evidence as to the origin of the fire. " What appears to be the truth, " says the District Judge, " is that a little girl (how little I cannot say, as the child has not been produced), a sister of the first defendant, was carrying some fire about for some reason or other, and the wind blew a spark on to the roof or the fence near the roof and set fire to it. "

The issues framed were as follows:-
 

(1)   Whether   the   second   defendant   acted   so   carelessly   and negligently and without taking due and proper care and precaution as to let the fire of the kitchen burn down the house?
 

(2)   What are the damages?

1 (1892) 1 S.  C. R. 264.

 

 

 

 

The plaintiff began in the Court below, but it was argued before us that the onus of exculpating themselves by showing that the fire was due to unavoidable accident lay upon the defendants. The question of onus was an important one, because I think it is clear from the learned District Judge's judgment that if in his view the burden of proof had laid upon defendants' shoulders, he would not have found in their favour as he has done. See in particular the passages beginning " If it had been shown that the fire was caused by neglect, " " There is nothing to show second defendant was aware. The incidence of the onus in a case of destruction by fire appears to have been the subject of controversy among the old jurists. Grotius (Introduction, Bk. III., chapter XIX., section 11; Maasdorp 395, citing the Digest, Bk. XIX, 2, 9, 3) lays the burden on the lessee to prove unavoidable accident. In the analogous case of the contract of pledge, the same learned author says that the loss of the pledge by fire or robbery is considered as due to negligence, unless the defendant proves the contrary (Bk. 3, 8, 4, and compare Van der Keesel, Thesis 540). Voet (Bk. 9, 2, 20: Simpson, p. 325) takes the opposite view, on the ground that the onus lies by the general rule on the plaintiff, and that negligence, like fraud, will not be presumed. His reasoning is not without force, but in the conflict of authority I am disposed to follow the ruling of Withers J., who, in the case of Bastian Pillai v. Gabriel,1 held that the onus lay upon defendant to prove that the destruction of the property hired by him was occasioned by unavoidable accident.

 

The defendants' evidence is that the first defendant (the husband) was out of the house at the time of the fire, and that the second defendant, his wife, was lying down ill after her recent confinement. The little girl mentioned by the District Judge was one of two little sisters of the first defendant, who were apparently regular inmates of his house. First defendant was said to have stated in the presence of the Vidane that his sister was cooking in a shed, and the fire s

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