Korossa Rubber Company V. Silva

[Privy Council.]       1919

Present: Viscount Haldane, Lord Buckmaster, and Lord Dunedin.

 KOROSSA  RUBBER  COMPANY  v.   SILVA   et  al.

Damage by fire-Action for damages-Proof of negligence-Evidence Ordinance, ss. 32 and 33-Hearsay evidence-Statement by person who cannot be found-Report of Korala who was dead-Method of assessing damages.

A destructive fire spread from defendants' land to plaintiffs' estate and destroyed a number of rubber trees. In an action for damages plaintiffs sought to prove that the fire was caused by the act of the defendants' kangany P, who admitted to the Arachchi and to the Korala that he set fire to a heap of rubbish or jungle near his hot on defendants' land. The Korala made a report, in which was recorded the admission. The report was written nearly one month after P made the statement. P disappeared before trial; the process server made a return to the effect that a subpoena could   not   be   served   on   P. The Korala was dead before   the   trial.

Held, (1) that the evidence of the Arachchi that P had admitted that he had set fire to the jungle was admissible.

(2) That the report of the Korala was admissible in evidence.

The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending  to his  neighbour's property.

The method of assessing damages indicated.

THE  facts are set out in the judgment of the Supreme Court (20 N.L.R.65).

May 16, 1919.    Delivered by Lord Dunedin : -

This is an action for damages at the instance of the plaintiff rubber company against coterminous proprietors, from whose property a forest fire invaded the plaintiffs' property and injured the rubber trees. The learned District Judge found that negligence had been proved against the defendants, and gave judgment for a certain sum of damages. The Appeal Court affirmed on the merits, but reduced the amount of damages by Rs. 5,000. From this judgment appeal and cross-appeal had been taken by the defendants and plaintiffs, respectively.

As regards the merits, it was not matter of controversy that the fire originated on the property of the defendants and spread to the property of the plaintiffs. It was alleged, and held to be proved by both Courts, that the origin of the fire was the setting on fire of a heap of rubbish by one Pulle, a servant of the defendants. In their argument the defendants made two points. First, they said that the fact of Pulle's having set fire to a heap of rubbish was only proved by evidence which ought not to have been admitted. Secondly, they said that the setting on fire of the rubbish heap did not infer negligence, and that, without negligence on the part of the defendants' servant, they could not be held liable. Pulle, who was a watcher in the defendants' employment, and lived in a hut not far removed from the boundary of the two properties, disappeared two days after the fire, and could not be found at the time of the trial of the action. It was supposed that he had gone back to India. In these circumstances, the plaintiffs tendered as a witness the Arachchi or headman of the village, who sent for Pulle and questioned him, and to whom Pulle admitted that he had set fire to a rubbish heap. They also tendered in evidence a report made by the Korala, the superior officer of the Arachchi, in which he stated that Pulle had made the same admission. The Korala had died before the trial. The admissibility of this evidence depends on the provisions of the Evidence Act of 1895. Section 32 of the Act is as follows: -

Section 32.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of  giving evidence,

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