The Colombo Electric Tramway Company V. The Colombo Gas And Water Company,Limited

Present  : Wood Renton C.J. and De Sampayo J.   1915.

THE COLOMBO ELECTRIC TRAMWAY COMPANY v. THE
COLOMBO GAS AND WATER COMPANY, LIMITED.

104-D. C, Colombo, 38,009.

Action for damages against gas company-Negligence-Nuisance-Is gas company exempted from liability for nuisance?-Gas Company Ordinance (No. 1 of 1869), s. 25-Continuing nuisance-Not taking precaution to stop the nuisance-Civil Procedure Code, s. 174-Experts-Evidence-Production of documents.

The plaintiff company (the Colombo Electric Tramway Company) sued the defendant company (a gas company) for damages caused to the plaintiff company's electric main by an explosion consequent on leakage of gas. The explosion was due to a crack in the defendants syphon-box, through which gas escaped, and Another crack in plaintiffs' junction-box. The cracks in both boxes were caused by a steam roller belonging to the Municipal Council of Colombo.

Held, (1) In the circumstances of this case the plaintiffs' claim on the ground of negligence in regard to the original leakage must fail.

(2) The circumstances prior to and attendant upon the explosion disclosed a nuisance in the eye of the law.

(3) The gas company (defendant company) were not exempt from liability for nuisance in view of section 25 of Ordinance No. 1 of 1869 (Ordinance incorporating the gas company).

(4) As the act constituting the nuisance was not done by the defendant company, but by the Municipal Council, over whom the defendant company had no control, and whose acts they could not reasonably be expected to foresee or guard against, the defendant company were exempted from liability in respect of it.

(5) The defendant company would be liable for the continuance of the nuisance If they knew of the nuisance, and were in a position to prevent its farther continuance, and did not do so.

WOOD RENTON C.J.-In spite of the language of section 174 of the Civil Procedure Code, the Court has a discretionary power to allow experts, whose presence was practically necessary in order that the case of one side or the other might be adequately put forward, to remain in Court.

WOOD RENTON C.J.-Whenever it appeared that reports which had been made by the defendants' manager to the Board of Directors in London, had been so made with a view to their submission to the company's legal advisers, and related solely to the defendants" case, the plaintiffs' counsel was not entitled to compel their production, although there might have been nothing to prevent him from asking defendants' manager whether in those reports he had stated that the defendants or their employees had been to blame for the accident.

APPEAL from a judgment of tie Acting District Judge of Colombo (G. S. Schneider. Esq.). The facts appear from judgment:-

Elliott (with him R. L. Pereira), for plaintiffs, appellants.

Bawa, K.C. (with him F. J. de Saram), for defendants, respondents.

Cur. adv. vult.

August 5, 1915. WOOD RENTON C.J.-

This appeals has been argued by both sides on the basis of the findings by the learned District Judge that the explosion was due to a crack in the defendants' syphon-box, through which gas escaped, and another crack in the plaintiffs' junction-box, through which that gas forced an entry into the junction-box, and that the damage to both boxes was caused by a fifteen-ton steam roller belonging to the Municipal Council, which had been at work about the scene of the accident on October 21 and 22. I see no reason to differ from the finding of the learned District Judge that the plaintiffs' claim on the ground of negligence in regard to the original leakage must fail. The next question is whether the plaintiffs' action can be maintained, apart from negligence of that character on the ground that by their statute of incorporation1 the defendants are responsible for nuisance. Although there is no express reference to nui

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