Present : Bertram C.J. and De Sampayo J.    1920

WINTER v. MUDIANSE.

33-D. C. Kandy, 26,497.

Buffalo straying on the road-Car sustaining damages in attempt to avoid collision-Action against owner of buffalo for damages-Negligence-Noxal action.

The plaintiff, going along a road in a car, applied the brake to avoid a collision with a stray buffalo crossing the road. The car skidded, struck a building, and sustained damage. The plaintiff sued the owner of the buffalo for damages.

Held, that the claim was bad as the defendant was not guilty of negligence, as there was neither a common law duty nor at the date of the accident (before December, 1918) a statutory duty not to allow a buffalo to stray on the public road.

The principle of a noxal action does not apply to a mere capricious or unexpected act of an animal not in itself of a nature to cause damage.

THE facts appear from the judgment.

Cooray, for the appellant.

Croos-Dabrera (with him Arulanandan), for the respondent.

July 22, 1920. BERTRAM C.J.-

This is an interesting but very simple case. It is the case of some motorists coming along a public road and a stray buffalo crossing the road immediately in front of them. The chauffeur applies the brakes to avoid a collision. Unfortunately, the car is at a muddy or grassy spot. The car skids, and is propelled with some violence into a neighbouring ambalam, suffering considerable damage. The District Judge has found there was no negligence on the part of the defendant in the ordinary sense, but that, if there was any breach of any common law or statutory duty, he considers that the plaintiff was guilty of contributory negligence and so cannot recover.

First of all, in regard to the alleged negligence on the part of the defendant. The defendant was the owner of a buffalo, and it is suggested that it was negligence on his part to allow his buffalo to be on the public road. If there was any negligence, it must consist in a breach of a common law duty, for, at the time when this collision occurred, there was no statutory obligation for the owner of a buffalo to lake measures to prevent his animal straying on the

public road. Since the accident occurred there has been an amendment of the law. Section 94 (1) of the Road Ordinance, No. 10 of 1861, originally did not apply to buffaloes. By a subsequent amendment of the law introduced in the year 1918 the provision was extended to include all animals. That amendment has since been embodied in the new Local Government Ordinance, No. 11 of 1920, and by section 102 (1) of that Ordinance it is enacted, for the first time, in express terms, that " whosoever shall turn or suffer to be turned loose any buffalo . . . . or other animal on to or into any thoroughfare shall be guilty of an offence." That, however, was not the state of the law at the time of this occurrence. In the circumstances of this country, in agricultural districts buffaloes are allowed to stray freely into paddy fields, not under actual cultivation, and may make their way to the roads, and I do not think that, in view of the customs of the country, there was any obligation on the owner of this buffalo to keep it under restraint. I do not see, therefore, that the fact of this animal being upon the public road is in itself proof of negligence on the part of its owner. So far, therefore, as this action rests on this supposed negligence I think it must fail.

Mr. Cooray, who appeared for the appellant, attempted, as an alternative, to rest his case upon the principle which is expounded in Voet 1, 9, 1, namely, on the principle of the noxal action, and cited the case of De Soysa v. Punchirala.1[(1907) 10 N. L. R. 254.] He said that, independently of any question of negligence, if an animal belonging to any person does a wrongful act which causes damage, the owner of the animal is liable in damages to the extent at least of its value. He cited, howev