Khundkar, J.

1. This is an action for damages for injury caused to theplaintiff by the fall, from the roof of the defendants premises, of a cinemaadvertising device, called a banner, which is an article made of the clothwithin a wooden frame. According to the defendants witness Amitava Roy, theframe is of pinewood 2 inches wide by l/2 an inch thick.

2. The defendant is the proprietor of a motion picture exhibitionestablishment called the Rupali Cinema situated in Ashutosh Mookerjee Road. Theportion of the building which abuts on the street is one-storied. On the roofof this, about four feet from its western edge, overlooking the street, therestands a sky sign which is a more or less permanent structure consisting of asteel frame held firmly in place in an upstanding position by means of masonryand iron attachments. It is 12 feet high by 36 feet wide. On this framework andfirmly attached to it in a vertical position there is galvanized iron sheeting,the surface of which, facing westwards towards the street, was intended tocarry advertising designs. The galvanized sheeting covers, according to thedefendants manager, B. N. Basu Mullick, the whole surface of the framework.The defendant obtained a licence to erect this sky sign from the CalcuttaMunicipality in December 1938. The plan which he submitted along with hisapplication for a licence was a plan of the construction above described. Itdid not show any specific advertising sign as a part of the construction,although the definition of a sky-sign under S. 3, cl. (65), Calcutta MunicipalAct, for which, under the Act, a licence has to be taken out, includes theadvertising sign itself and not the framework only. The construction describedabove advertised nothing, and, as just stated, the intention was thatadvertising designs would be displayed on or against the galvanized sheeting.It appears that both the defendant and the Municipal authorities entertainedthe idea that paper posters would be pasted on the galvanized sheeting. Theevidence is that this was what was frequently done. But the defendant alsoproceeded to advertise the entertainments provided at the Rupali Cinema in asomewhat different manner. Banners similar to the one with which we areconcerned in this case were displayed from the sky sign. There is in theframework of the sky sign no contrivance by means of which such banners couldbe held firmly and securely in place no slots, bolts, grooves, flanges orscrews. The banners were held against the galvanized sheet by means of cheepcoir ropes which were fastened to the four corners of the wooden frame whichcontained the cloth design, and these ropes were then carried over and under themetal frame of the sky sign, and knotted to certain angles and iron rodsbehind. The lower portion of the wooden frame of the banners did not rest onthe ground.

3. On the 5th July 1943, at about 7.15 P. M. a banner(produced in Court and found to measure twelve feet in length and three andhalf feet in width) within a wooden frame, fell from its position against thesky sign of the Rupali Cinema. A very narrow space according to the evidencefor the defendant, four feet intervened between the sky sign and the edge ofthe roof, so that there was nothing to intercept or break the fall. Thecontraption fell on the plaintiff, who was passing along the pavement.Apparently the wooden frame struck him on the head, for he sustained a cutthereon, which the medical evidence has described as severe, and which bledprofusely. On behalf of the defendant it was sought to be suggested that theplaintiff was struck not by the banner but by a corrugated iron sheet,described as a shade, one or more of which fell at the same time, the weatherbeing stormy, from the roof on an adjoining shop. The evidence in support ofthis suggestion is totally insufficient, and as a defence it was indeed notseriously pressed.

4. The manager of the cinema establishment, B. N. BoseMullick, who has deposed as a witness for the defendant, came out on to thepavement, and his evidence is that he invited the plaintiff to come into thecinema, but the plaintiff declined. Three constables of the armed police whowere off duty, and were passing by, went to the plaintiffs assistance andrendered first aid. By one of them he was removed to the Sambhu Nath PanditHospital, where he was bandaged and put to bed. As haemorrhage continued, anoperation had to be performed to tie the severed blood vessels, late at night.The plaintiff remained in the hospital for five days. His case is that, afterhis discharge, he was bed-ridden for about one month during which period he wasattended on daily by Dr. A. M. Datta. His case further is that he has had painand suffering both mental and physical; his general health which was goodbefore the occurrence has been seriously undermined, and his expectation oflife shortened. The accident has injuriously affected his efficiency andcapacity for work, and his chances of promotion to a higher official post thanthat which he at present holds have in consequence disappeared. He claims Rs.10,450 as damages under the following heads :

Rs.

(1) Doctors fees... 240

(2) Cost of medicine and special

diet... 200

(3) Cost of conveyance for going

to and returning from hospital... 10

(4) For pain and suffering, shortened expectation of lifeand permanent injury... 10,000.

5. The defence, apart from the faint suggestion that theplaintiff was not struck by the banner but by something else, is as follows: Inthe first place, it is for the plaintiff to establish that there was negligenceon the part of the defendant or his servants which caused the fall of thebanner. Not only has the plaintiff not established this, but the evidenceadduced on behalf of the defendant shows that all reasonable care was exercisedby the defendants manager who personally supervised the tying of the banner tothe sky-sign frame on 12th June 1943. A new rope purchased on the 11th June wasused. On the 5th July, the manager examined the banner and found, it inposition and intact. Each of the four corners of the frame of the banner wastied to the sky-sign by 3 strands of this rope which was securely knotted tothe supports of the sky-sign frame. No one could be expected to do more, andthe banner fell because of a storm of unusual severity which occurred in theafternoon of the 5th July. The injury which the plaintiff sustained was notsevere and he is not entitled to any damage.

6. The following issues were framed :

Issues:1. Has this Court jurisdiction to entertain thissuit 2. Was the plaintiff injured on the 5th of July 1943, as alleged in theplaint 3. What was the nature and extent of the plaintiffs injuries 4. Wasthe occurrence due to storm or to some other unavoidable and unexpected cause 5. Was it due to negligence or carelessness of the defendant 6. To whatrelief, if any, is the plaintiff entitled

7. The objection as regards jurisdiction was withdrawn andissue No. 1 does not arise. The plaintiffs case is that the banner would nothave fallen but for the defendants negligence in not having it properlysecured. He has called no evidence, but relies on the doctrine of res ipsaloquitur which places the burden of proving due care on the defendant, andcontends that for injury caused by the fall from the defendants premises of anarticle which was potentially capable of causing harm, and which had beenbrought into those premises by the defendant, the latter is liable under theprinciple laid down in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L.330 : 37 L. J. Ex. 161: 19 L. T. 220.

8. The defendant denies that the maxim res ipsa loquitur orthe rule in (1868) 3 H. L. 3301 applies to the facts here established and inthe alternative contends that, even if that be so, the evidence adduced by himshows that he took every reasonable precaution, and that the fall of the banneroccurred in spite of that and because of a storm, which brings this case withinthe exception of act of God or vis major. To this the plaintiff replies thatthere was no storm such as would exempt the defendant from liability, and thatthe fall of the banner was due to the failure of the defendant to take ordinaryprecautions. The cause of action is founded on negligence, and as stated, theplaintiff invokes the rule in (1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, which is a special though very strictapplication of the law relating to negligence, for, as the Lord Justice Clerkin dealing with (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37L. J. Ex. 161: 19 L. T. 220 said in (1876) 3 R. 461 Chalmers v. Dixon (1876) 3R. 461 at p. 464, "I think that culpa does lie at the root of the matter."Alderson B. described negligence as

the omission to do something which a reasonable man, guidedupon those considerations which ordinarily regulate the conduct of humanaffairs, would do, or doing something which a prudent and reasonable man wouldnot do: (1856) 11 Ex. 781 Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781: 25 L. J. Ex. 212 at p. 784.

This is the definition of negligence most often quoted, butBeven in his well-known work on Negligence considers that, though as adescription it is invaluable, the formula is too wide, for a definition.Pollock, in his book on Torts, states with reference to this definition, that

we have always to remember, that negligence will not be aground of legal liability unless the party whose conduct is in question isalready in a situation that brings him under the duty of taking care."

9. In (1883) 11 Q. B. D. 503 Heaven v. Fender (1883) 11 Q.B. D. 503 : 52 L. J. Q. B. 702 : 49 L. T. 357 at p. 607, Brett M. R. laid downthe following definition of negligence :

Actionable negligence consists in the neglect of the use ofordinary care or skill towards a person to whom the defendant owes a duty ofobserving ordinary care and skill, by which neglect the plaintiff, withoutcontributory negligence on his part, has suffered injury to his person orproperty.

10. In (1860) 5 H. & N. 679 Vaughan v. Taff Vale By. Co.(1860) 5 H. & N. 679 : 29 L. J. Ex. 247 : 2 L. T. (N.S.) 394: 8 W. R. 549at p. 688, Willes J. defined negligence as "the absence of care according tothe circumstances;" and Bowen L. J. in (1887) 18 Q. B. D. 685 Thomas v.Quartermine (1887) 18 Q.B.D. 685:56 L.J. Q.B. 340:57 L.T. 587 : 35 W. R. 555 atp. 694, said that it was simply "neglect of some care which we are boundby the law to exercise towards somebody."

11. These definitions bring into prominence the element of aduty which the defendant owes to another person. Who that person may be, isindicated by Lord Atkins in (1933) A. C. 562 Donoghue v. Stevenson (1932) 1932A. C. 562 :101 L.J.P.C. 119 : 147 L. T. 281 at p. 580 :

You must take reasonable care to avoid acts or omissionwhich you can reasonably foresee would be likely to injure your neighbour. Who,then, in law is my neighbour The answer seems to be persons who are soclosely and directly affected by my act that I ought reasonably to have them incontemplation as being so affected when I am directing my mind to the acts oromissions which are called in question.

12. Professor Winfield in his "Text-Book of the Law ofTort" has expressed the essentials of negligence in the following words:

Negligence as a tort is a breach of a legal duty to takecare which results in damage undesired by the defendant to the plaintiff. Thusits ingredients are : (1) A legal duty on the part of A towards B to exercisecare in such conduct of A as falls within the scope of duty; (2) breach ofduty; (3) consequential damage to B.

13. In determining whether the first ingredient herementioned is established in the present case, one has to ask whether the defendant,an occupier adjoining a public thoroughfare, owed any duty to the plaintiff whowas a passer-by thereon. In considering whether the second ingredient ispresent, one has to start with the fact that the plaintiff has offered noevidence to show that the defendant had kept the banner on the roof of thepremises in a manner which argued want of due care. It has accordingly to beseen whether want of such care may be inferred from the mere fact that thebanner fell into the street, that is to say, whether the maxim res ipsaloquitur applies. After referring to the cases which illustrate this maxim,Pollock (Law of Torts, Edn. 14, at p. 418) says :

Construing the principles affirmed in these authorities, wesee that the proprietor of property abutting on a highway is under a positiveduty to keep his property from being a cause of danger to the public by reasonof any defect either in structure, repair, or use and management, whichreasonable care and skill can guard against.

14. This learned author explains the maxim res ipsa loquituras exemplified in the decided cases in the following words (P. 415) :

Where damage is done by the falling of objects into ahighway from a building, the modern rule is that the accident, in the absenceof explanation, is of itself evidence of negligence. In other words the burdenof proof is on the occupier of the building. If he cannot show that theaccident was due to some cause consistent with the due repair and carefulmanagement of the structure, he is" liable.

15. In Salmonds Law of Torts (Edn. 9 at p. 470) the matteris stated in this general form:

The rule that it is for the plaintiff to prove negligence,and not for the defendant to disprove, it, is in some cases one of considerablehardship to the plaintiff; because it may be that the true cause of theaccident lies solely within the knowledge of the defendant who caused it. Theplaintiff can prove the accident, but he cannot prove how it happened so as toshow its original in the negligence of the defendant. The hardship is avoidedto a considerable extent by the rule res ipsa loquitur. There are many cases inwhich the accident speaks for itself, so that it is sufficient for theplaintiff to prove the accident and nothing more. He is then entitled to havethe case submitted to the jury, and it is for the defendant, if he can, topersuade the jury that the accident arose through no negligence of his.

16. This maxim is really a rule of evidence relating to theburden of proof and may be compared with the provisions of S. 106 of the IndianEvidence Act.

17. To continue the quotation from Salmond:

The maxim res ipsa loquitur applies whenever it is soimprobable that such an accident would have happened without the negligence ofthe defendant that a reasonable jury could find without further evidence thatit was so caused... On the other hand, if the defendant produces a reasonableexplanation, equally consistent with the negligence and no negligence theburden of proving the affirmative, that the defendant was negligent and thathis negligence caused the accident, still remains with the plaintiff.

18. I would refer briefly in their historical sequence tothe important cases which illustrate the maxim res ipsa loquitur. In (1863) 2H. & C. 722 Byrne v. Boadle (1863) 2 H. & C, 722 : 33 L. J. Ex. 13 : 9L. T. (N. S.) 450 : 12 W. R. 279, a barrel of flour fell from a window in thedefendants warehouse and knocked down, and injured the plaintiff who waswalking below along the public street. It was held that this was enough toraise against the defendant a presumption of negligence which it was for him torebut, it being the duty of persons who keep barrels in a warehouse to see thatthey do not roll out. Pollock C. B. said (p. 727):

There are many accidents from which no presumption ofnegligence can arise, but I think it would be wrong to lay down as a rule thatin no case can a presumption of negligence arise from the fact of an accident.

19. In (1865) 3 H. & C. 596 Scott v. London and St.Katherine Docks Co. (1865) 3 H & C. 596 : 34 L. J. Ex. 220: 13 L. T. (N.S.) 148 : 13 W. R. 410, the plaintiff was a Customs House Officer, who, whileon his way from one part of the docks to another, was knocked down by some bagsof sugar which fell on him from a crane which was lowering them from thedefendants warehouse. Erle C. J. in the Court of Exchequer Chamber said:

Where the thing is shown to be under the management of thedefendant or his servants, and the accident is such as in the ordinary courseof things does not happen if those who have the management, use, proper care,it affords reasonable evidence, in the absence of explanation by thedefendants, that the accident arose from want of care.

20. In (1866) 4 H. & C. 403 Briggs v. Oliver (1866) 4 H.& C. 403 : 35 L. J. Ex. 163 : 14 L. T. 412 : 14 W. R. 658, a packing casebelonging to the defendant which was insecurely propped against his premisesfell on the plaintiff. The majority of the Court, Piggott and Bramevell B.B.,held that these facts constituted evidence of the defendants negligence:

Parking-cases carefully placed in a proper position do notnaturally tumble down of their own accord; and we have no right to assume thatthe fall of this packing-case was caused by the act of someone who was not thedefendants servant.

21. (1871) 6 Q. B. 759 Kearney v. London & Brighton Ry.Co. (1871) 6 Q. B. 759 : 40 L. J. Q. B. 285 : 24 L. T. 913 : 20 W. R. 24, whichwas chronologically a later case than (1868) 3 H. L. 330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 extended the principle of(1868) 2 H. & C. 722 Byrne v. Boadle (1863) 2 H. & C, 722 : 33 L. J.Ex. 13 : 9 L. T. (N. S.) 450 : 12 W. R. 279 to the falling of a brick from thearch of a railway bridge in consequence of which a person walking on a highwayspanned by the bridge received an injury. A train had passed immediatelybefore. There was no evidence as to the condition of the bridge and thebrickwork, except that after the accident other bricks were found to havefallen out. The maxim res ipsa loquitur was held to apply:

The defendants were under the common law liability to keepthe bridge in safe condition for the public using the highway to pass under it.

The fact that a brick was loose and "fell out of thepier of the bridge without any assignable cause except the slight vibrationcaused by a passing train" afforded prima facie a presumption that thedefendants had not used reasonable care and diligence to keep the bridge insafe repair.

22. I come now to (1868) 3 H. L. 330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 which, strictly speaking,is not an illustration of the mere principle of res ipsa loquitur because theliability arising from that principle can be repelled by proof that thedefendant was not negligent, whereas under the rule in (1868) 3 H. L. 330Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 it isno defence to say that the defendant took every possible precaution to preventthe escape of the injurious thing. The facts of the case are sufficientlystated in the head-note of the report :

A was the lessee of mines. B was the owner of a millstanding on land adjoining that under which the mines were worked. B desired toconstruct a reservoir and employed competent persons, an engineer and acontractor, to construct it. A had worked his mines up to a spot where therewere certain old passages of disused mines; these passages were connected withvertical shafts which communicated with the land above, and which had also beenout of use for years, and were apparently filled with marl and earth of thesurrounding land. No care was taken by the engineer or contractor to block upthese shafts, and shortly after water had been introduced into the reservoir itbroke through some of the shafts, flowed through the old passages and floodedAs mine :

23. Held that A was entitled to recover damages from B, inrespect of this injury.

24. The Court of Exchequer had by a majority decided infavour of the defendant. The Court of Exchequer Chamber unanimously reversedthis decision and held the defendant liable, and the House of Lords affirmedtheir decision. The judgment of the Court of Exchequer Chamber was delivered byBlackburn J. It was quoted with approval by Lord Chancellor Cairne in the Houseof Lords, and has become classical. Blackburn J. said:

We think that the true rule of law is, that the person who,for his own purposes, brings on his land and collects and keeps there anythinglikely to do mischief if it escapes, most keep it in at his peril, and if hedoes not do so, is prima facie answerable for all the damage which is thenatural consequence of its escape. He can excuse himself by showing that theescape was owing to the plaintiffs default, or, perhaps, that the escape wasthe consequence of vis major, or the act of God; but as nothing of this sortexists here, it is unnecessary to inquire what excuse would be sufficient...and it seems but reasonable and just that the neighbour who has broughtsomething on his own property (which was not naturally there), harmless toothers so long as it is confined to his own property, but which he knows willbe mischievous if it gets on his neighbours, should be obliged to make goodthe damage which ensues if he does not succeed in confining it to his ownproperty. But for his act in bringing it there no mischief could have accrued,and it seems but just that he should at his peril keep it there, so that nomischief may accrue, or answer for the natural and anticipated consequence. Andupon authority this we think is established to be the law, whether the thingsso brought be beasts or water, or filth or stenches.

25. I shall deal with act of God or vis major later on, inits proper place, in the sequence of the present argument, but, here, I wouldpause to call attention to the fact that Blackbarn J. expressly mentions it asa possible defence to the principle of liability which he was expounding. Ashas been elsewhere pointed out (see Pollock 14th Edn., p. 393),

act of God does not necessarily mean an operation of naturalforces so violent and unexpected that no human foresight or skill couldpossibly have prevented its effects. It is enough that the accident should besuch as human foresight could not be reasonably expected to anticipate; andwhether it comes within this description is a question of fact.

26. It is this element which distinguishes (1875) 10 Ex. 255Nichols v. Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 : 33 L. T. 265 : 23 W.R. 693, cited on behalf of the defendant in the present case from (1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220,and I will refer to it later when I come to deal with the alternative answer ofthe defendant which is that the fall of the banner was due to a storm.

27. At the moment, I am considering the first position uponwhich the defence has taken its stand, which is that the facts of the presentcase take it completely out of the principle of (1868) 3 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 and also the ruleexpressed in the maxim res ipsa loquitur, so that the onus of provingnegligence by affirmative evidence of acts or omissions by the defendantshowing want of the due care lies on the plaintiff.

28. I shall refer now to cases which illustrate the strictrule of liability enunciated in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 and in some of which the maxim resipsa loquitur also has generally been applied. Before I do so, however, I willcall attention to what, I think, are the essential features of the cases inwhich the rule of strict liability of which (1868) 3 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 is a type has beenapplied. They are expressed in the following words: By Lord Moulton in (1913)A. C. 263 Rickards v. Lothian (1918) 1913 A. C. 263 : 82 L. J. P. c. 42 : 108L. T. 225 at p. 280: "It must be some special use bringing with itincreased danger to others....." By Atkin L. J. in (1920) 2 K. B. 487Belvedere Fish Guano Co. v. Bainham Chemical Works (1920) 2 K. B. 487 : 89 L.J. K. B. 631 : 123 L. T. 211 at p. 502:

Where a person brings upon land of which he is in de factopossession for purposes of his business dangerous materials which would notnaturally be upon the land, he is under an obligation to keep those materialsunder control, so as not to cause mischief to his neighbours.

29. By Scott L. J. in (1938) 1 ALL E.R. 579 Hale v Jennings(1938) 1 All E. R. 579:

The fundamental rule of the principle is that the liabilityattaches because of the occupier of land bringing on to the land somethingwhich is likely to cause damage if it escapes.

30. These observations cover the cases of articlespotentially dangerous, that is to say such as are likely to cause injury uponescaping, or while in the process of escaping from their places of confinement.

31. In (1876) 1 Q. B. D. 314 Tarry v. Ashton (1976) 1 Q. B.D. 314 : 45 L. J. Q. B. 260: 34 L. T. 97, the defendant was the occupier of ahouse from which a lamp projected over the street, and he had employed acompetent person who was not his servant to put it in repair. The lamp fell andinjured the plaintiff. It was found as a fact that there had been negligence onthe contractors part and that the lamp had fallen because of the decayedcondition of the attachment of the lamp to its bracket, which had escapednotice. Lush and Quinn JJ. held that the defendant was liable on the groundthat although he had employed an apparently competent person to repair thelamp, yet that did not excuse him from his duty to maintain it in a safecondition. This view is undoubtedly an application of the rule in (1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220.In Beven on Negligence (Edn. 4, p. 22) the case is cited as an illustration ofthe proposition that, if

the injury had arisen from an ordinary casualty of thehighway, negligence in addition to accident would have to be proved to affectthe defendant with liability. So soon as it is clear that the accident is notone of those incident to the highway, the occurrence of it raises a presumptionof the defendants default.

32. This observation has to be borne in mind in connectionwith some of the cases cited by Mr. Mukerjee for the defendant which are casesin which injury had resulted from street accidents.

33. In (1921) 1 A.C. 521 Attorney General v. Cory Brothers& Co. (1921) 1 A. c. 521 : 90 L. J. Ch. 221 : 125 L. T. 98, a collierycompany had deposited colliery debris on a hill side under licence from theowners of the land. After heavy rain a landslide occurred. As the evidenceshowed that the landslide was caused by the weight of the debris, the collierycompany were found liable under the rule in (1868) 3 H.L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 for damage causedby the escape of the debris. (1936) 1 ALL E. R. 557 Shiffman v. Venerable Orderof St. John Jerusalem (1936) 1 All E. R. 557 was a case in which the Order ofSt. John of Jerusalem had, on the occasion of a national holiday, erected acasualty tent in a public park where large crowds gathered. Outside the tentthey had put up a flag pole which was insecurely kept in position by guy ropes.As the result of children, who could not be kept away, swinging from the ropes,the pole fell and injured the plaintiff. In holding that the defendants wereliable to pay damages on the ground of negligence, Atkinson J. said:

I do not think it is necessary to decide it, but there isanother ground upon which I think liability may well rest. I cannot myself seewhy this is not within the rule in (1868) 3 H. L. 330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220. The defendants erectedsomething exceptional, something which would be easily caused to fall, andsomething which, if it fell, was likely to do mischief to others, for if itfell it was certain to fall on land of which they were not in occupation, andupon which the public had a right to be.

The italics, which are mine, bring out points of closeresemblance with the facts out of which the present action has arisen.

34. In (1938) 1 ALL E. R. 579 Hale v Jennings (1938) 1 AllE. R. 579 the defendant had erected in a public amusement park an apparatussimilar to a roundabout called a Chair-O-plane. While this was in the processof rotation, one of the chairs became detached and struck and injured theplaintiff who was the proprietor of a neighbouring shooting-gallery. In holdingthat the defendant was liable on the fundamental principle enunciated in (1868)3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T.220 the Court of Appeal found that the Chair-O-plane was an inherentlydangerous thing in the sense that it was likely to cause damage if it escaped.(1868) 3 Q. B. 733 Jones v. Festiniog Rly. Co. (1868) 3 Q. B. 733 : 37 L. J. Q.B. 214 : 18 L. T. 902 : 17 W. R. 28 at p. 736 was a case of damage caused bysparks from a railway engine. Blackburn J. in this case said:

The general rule of common law is correctly given in (1865)1 Ex. 265 Fletoher v. Rylands (1865) 1 Ex. 265 : 35 L. J. Ex. 154 : 14 L.T. (N.S.) 523 : 14 W. R. 799 that where a man brings or uses a thing of a dangerousnature on his own land he must keep it in at his peril; and is liable for theconsequences if it escapes and does injury to his neighbour. Here thedefendants were using a locomotive engine with no express parliamentary powersmaking lawful that use, and they are therefore at common law bound to keep theengine from doing injury, and if the sparks escape and cause damage, thedefendants are liable for the consequences, though no actual negligence beshown on their part.

35. This case was followed in (1880) 5 Q. B. D. 597 Powellv. Fall (1880) 5 Q. B. D. 597 : 49 L. J. Q. B. 428 : 43 L. T. 562 which was acase of damage caused by sparks from a traction engine. In (1936) A.C. 108North Western Utilities Ltd., v. London Guarantee & Accident Co. Ltd. (36)23 A.I.R. 1936 P. C. 27 : 159 I.C. 704 : 1936 A. C. 108 : 105 L. J. P. C. 18 :154 L. T. 89 : 52 T.L.R. 93, a public utility company was held liable for thedestruction of a building by a fire occasioned by the escape of gas from one ofits pipes which had been fractured, although the fracture was caused by theoperations of the city authority in constructing a sewer. It was stated in thiscase that the rule in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330: 37 L. J. Ex. 161: 19 L. T. 220 was not limited to cases where the defendanthad been carrying or accumulating the dangerous thing on his own land.

36. I turn now to the cases cited by Mr. Mukerjee on behalfof the defendant in his endeavour to show that neither the maxim res ipsaloquitur nor the rule in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L.330 : 37 L. J. Ex. 161: 19 L. T. 220 apply to the facts of the present case. In(1890) 63 L. T. 756 Crisp v. Thomas (1890) 63 L. T. 756 the plaintiff was a scholarin a voluntary school who was injured by the fall of a blackboard from itseasel, and the action was for damages on the ground of negligence on the partof a girl who, deputising for a teacher, had put the blackboard on the easel.It was held that the mere fall of the blackboard was not evidence ofnegligence. Lord Esher M. R. said:

The application of the maxim res ipsa loquitur depends uponwhether the judge in each particular case can see that the mere fact of a thinghappening is more consistent with there having been negligence than not. Thefacts of the case here are not more consistent with negligence than withaccident.

Lopes L. J. distinguished the case from that of (1865) 3 H.& C. 596 Scott v. London and St. Katherine Docks Co. (1865) 3 H & C.596 : 34 L. J. Ex. 220: 13 L. T. (N. S.) 148 : 13 W. R. 410 by saying that whathad happened in the latter case and other similar cases was more consistentwith there having been negligence in someone than otherwise. Kay L. J. observedthat there was no comparison between the case and (1865) 3 H. & C. 596Scott v. London and St. Katherine Docks Co. (1865) 3 H & C. 596 : 34 L. J.Ex. 220: 13 L. T. (N. S.) 148 : 13 W. R. 410:

To say that every accident in a school is to be likened tothat, and to say that there must be negligence whenever an accident happened,is a contention quite untenable. It is not a dangerous thing to use ablackboard.

37. The ratio decidendi of (1890) 63 L.T. 756 Crisp v.Thomas (1890) 63 L. T. 756 in substance was that a blackboard is not apotentially dangerous article. The contrast between the facts in (1890) 63 L.T. 756 Crisp v. Thomas (1890) 63 L. T. 756 and those in (1865) 3 H. & C.596 Scott v. London and St. Katherine Docks Co. (1865) 3 H & C. 596 : 34 L.J. Ex. 220: 13 L. T. (N. S.) 148 : 13 W. R. 410 being noted, it remains only tocall attention to certain admitted circumstances of the present case, such asthe size, shape and material of the thing called a banner, the proximity of theposition which it had occupied to the public street, and the height from whichit fell. These circumstances make it impossible for me to hold that (1890) 63L.T. 756 Crisp v. Thomas (1890) 63 L. T. 756 has any application here. (1862)142 E. R. 926 Hameck v. White (1862) 143 E.R. 926 : 31 L. J. C. P. 129 : 10 W.R. 230 : 5 L. T. 676 is a case which has been illuminatingly discussed invarious passages in Beven on Negligence, and I do not think I can do betterthan to quote what that learned and distinguished commentator says about thiscase :

Defendant, in order to try a horse which he had bought atTattersolls the day before was riding it in Finsbary Circus at a slow pace.The horse was restless and the defendant held the rains tightly, omittingnothing to avoid an accident. The horse, however, swerved on to the pavement,where the deceased was walking, knocking him down, and injured him fatally. Anaction was brought under Lord Campbells Act. The Court thought the facts didnot disclose any cause of action... I am of opinion, said Erle C. J., that aman is not to be charged with want of caution because he buys a horse withouthaving had any previous experience of him. There must be horses without numberridden every day in London of whom the riders know nothing. A variety ofcircumstances will cause a horse to become restive. The mere fact ofrestiveness is not even prima facie evidence of negligence.

38. The witness who deposed to the fact of the defendantbeing on the footpath, also deposed to the fact that he was there unwillingly,and thus displaced the presumption of negligence that his evidence had raised.The only question was as to the effect of restiveness in a horse unaccompaniedby any other fact implying negligence. The decision of the Court in effect was,that the use of horses for riding and driving being recognised, and certainplaces being proper for them to be used in, while their natural disposition isuncertain, those who ride them do not guarantee against the effects of thewaywardness of their dispositions. A doubt has been suggested whether FinsburyCircus was a proper place to try a horse in. Though it was not contested soto be in the year 1862, the point might be disputed today.

39. In another passage Beven distinguishes (1862) 142 E. R.926 Hameck v. White (1862) 143 E.R. 926 : 31 L. J. C. P. 129 : 10 W. R. 230 : 5L. T. 676 from (1863) 2 H. & C. 722 Byrne v. Boadle (1863) 2 H. & C,722 : 33 L. J. Ex. 13 : 9 L. T. (N. S.) 450 : 12 W. R. 279 by pointing out thatin the one case the cause of injury was animate and in the other inanimate:

A man who has barrels on his premises is bound to put themin such a position that they will not fall out on the highway; if they do, asthey have no power of motion in themselves, the very fact of movement arguesnegligence. A man who has a horse is also bound to take care that he does notdo damage; but since the horse has a power of motion of his own which it is notnecessary for the owner in all cases to provide against his exerting, anaccident caused by the exercise of this power does not necessarily argue wantof care in the owner; for the motion of a horse may arise from his ownunforeseen impulse, in which case the owner is not liable; thus, while in thecase of a barrel it is enough to show that it moved from its position andcaused the injury, in the case of a horse mere unexplained movement will notwarrant the same conclusion.

40. The passages I have quoted make it sufficiently plainthat different considerations arise, and the principles of liability are notthe same when a horse is ridden through a thoroughfare, and when a largeadvertising device falls from a sky-sign into the public roadway. (1875) 10 Ex.261 Holmes v. Mather (1875) 10 Ex. 261 : 44 L.J. Ex. 176 : 33 L.T. 961:23 W.R.364 was another case of injury resulting from equine vagaries. A groom wasdriving his master, the defendant, in a carriage drawn by a pair of hismasters horses, when the animals bolted, and in spite of the best endeavoursof the groom to bring them under control, they knocked down and injured theplaintiff. It was held that the action was not maintainable. Bramwell B. said:

If I am being run away with, and I sit quiet and let thehorses run, wherever they think fit, clearly I am not liable, because it isthey, and not I, who guide them, but if I unfortunately do my best to avoidinjury to myself and other persons, then it may be said that it is my act ofguiding them that brings them to the place where the accident happens : Surelyit is impossible.

Cleasby B. said:

I sum up all in these words: in my opinion the horses werenot driven there by the defendants servant, but they went there in spite ofhim, so far as he directed them at all.

41. In my judgment, (1875) 10 Ex. 261 Holmes v. Mather(1875) 10 Ex. 261 : 44 L.J. Ex. 176 : 33 L.T. 961:23 W.R. 364 may bedistinguished in the same way as that indicated in (1862) 142 E. R. 926 Hameckv. White (1862) 143 E.R. 926 : 31 L. J. C. P. 129 : 10 W. R. 230 : 5 L. T. 676.In (1875) 10 Ex. 261 Holmes v. Mather (1875) 10 Ex. 261 : 44 L.J. Ex. 176 : 33L.T. 961:23 W.R. 364, Bramwell B. made the following observation:

For the convenience of mankind in carrying on the affairs oflife, people as they go along the roads must expect, or put up with suchmischief as reasonable care cannot avoid.

This was said with reference to mischief incidental to theordinary traffic on a highway. Reference has been made above to Bevan commenton (1876) 1 Q. B. D. 314 Tarry v. Ashton (1976) 1 Q. B. D. 314 : 45 L. J. Q. B.260: 34 L. T. 97. This author has further remarked (Beven on Negligence, Edn.4, p. 138):

The maxim res ipsa loquitur does not apply to an accident ona highway. Those who go on a highway or have their property adjacent andsustain personal hurt there or damage to their property lying beside it can onlyshow a right to recover by affirmative evidence of fault in the person doingthe damage. The fact of an accident raises no presumption. A man crossing theroad is knocked down by a cart. Merely to prove this shows no cause of action.The plaintiff must go further and specify some breach of duty on the part ofthe defendant; the cart was driven too fast, or was on the wrong side of theroad, or swerved, or was not properly constructed, or was overloaded hencethe accident: some fact imputing blame as the cause of the accident. It is asmuch the duty of foot-passengers attempting to cross-street or road to look outfor passing vehicles as it is the duty of drivers to see that they do not runover foot-passengers.

See in this connection (1860) 8 C. B. (N. S.) 568 Cotton v.Wood (1868) 8 C. B. (N.S.) 568 : 29 L. J. C. P. 333 per Erle C. J. at p. 571.

42. (1909) 2 K. B. 652 Wing v. London General Omnibus Co.(1909) 2 K. B. 652: 78 L. J. K. B. 1063: 101 L. T. 411 was a case arising outof an injury sustained by a passenger in a motor omnibus which had skidded on agreasy roadway and struck a lamp post. There was no evidence of negligence onthe part of any servant of the defendants in control of the vehicle or of anyfault in its construction. The case was conducted on the assumption that, whena road is in a slippery condition, a motor omnibus has a tendency to skid, andit was this circumstance which afforded the basis for the decision of the Courtthat the defendants were not liable. Vaughan L. J. said:

I do not think that an accident resulting from the tendencyof motor omnibuses, however well constructed and designed, to skid is anyevidence of negligence or nuisance.

Fletcher Moulton L. J. (pp. 663 & 664) observed :

Without attempting to lay down any exhaustive classificationof the cases in which the principle of res ipsa loquitur applies, it maygenerally be said that the principle only applies when the direct cause of theaccident, and so much of the surrounding circumstances as was essential to its occurrence,were within the sole control and management of the defendants, or theirservants, so that it is not unfair to attribute to them a prima facieresponsibility for what happened. An accident in the case of traffic on ahighway is in marked contrast to such a condition of things. Every vehicle hasto adapt its own behaviour to the behaviour of other persons using the road,and over their actions those in charge of the vehicle have no control.

At p. 666 there is the following passage in the judgment ofFletcher Moulton L. J.:

No witness was called to prove either that this particularmotor omnibus was or that motor omnibuses generally were unmanageable, ordangerous to such an extent as to constitute a nuisance in the eye of the lawor to call into play the doctrine in (1868) 3 H. L. 330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220.

43. What has been said is, I think sufficient to dispose ofany supposed similarity between the present type of case and cases which areconcerned with accidents occurring in course of traffic moving in the streets.

44. As regards the remaining cases on which Mr. Mukherjeehas relied in support of his argument that neither the rule in (1863) 3 H. L.330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 northe doctrine res ipsa loquitur apply, the distinction between those cases and acase like the present, which arises out of the escape from the defendantspremises of a potentially dangerous thing brought there by the defendanthimself, should be reasonably apparent from a brief statement of the facts ofthe cases relied upon, and a bare indication of what the decision in eachinstance really amounted to

45. (1891) 1 Q. B. D. 86 Stanley v. Powell (1891) 1 Q. B. D.86: 60 L. J. Q. B 52: 63 L. T 809: 39 W. R. 76 was a case illustrative of whathas been called "inevitable accident." The defendant, who was one ofa shooting party, tired at a pheasant. One of the pellets from his gun glancedoff the bough of a tree, which was between him and the bird and not in linewith the plaintiff, and the pellet accidentally wounded the plaintiff, who wasengaged in carrying cartridges and game for the party. The jury found that thedefendant was not guilty of any negligence in firing as he did, and Denman J.,held that the defendant was not liable for negligence because there was none,nor for trespass to the person because the harm was accidental in the sensethat there was no neglect or want of due caution on the defendants part. It isinteresting to note that Beven (Edn. 4, p. 710) has made the following commentupon this decision:

If, then, the reasoning of Denman J., in (1891) 1 Q. B. D 86Stanley v. Powell (1891) 1 Q. B. D. 86: 60 L. J. Q. B 52: 63 L. T 809: 39 W. R.76 is correct, it is manifest that the contention of the present chapter iswrong, and that in effect the law of England is that a man must in allcircumstances be on the alert to avoid receiving injury and cannot, unless inexceptional cases, throw the risk of acting on him doing the act: That the lawof England is not so must be apparent to every student of the judgment ofBlackburn J., in (1865) 1 Ex. 265 Fletcher v. Rylands (1865) 1 Ex. 265 : 35 L.J. Ex. 154 : 14 L.T. (N. S.) 523 : 14 W. R. 799

46. Inevitable accident according to Pollock, (Law of Torts,Edn. 14, p. 107), means an accident not avoidable by any such precautions as areasonable man, doing such an act then and there, could be expected to take.In (1932) 146 L.T. 391 Fardon v. Harcourt Rivington (1932) 146 L. T. 391, LordDunedin said: "People must guard against reasonable probabilities but theyare not bound to guard against fantastic possibilities." It is plain thatthe phrase "fantastic possibilities" was evoked by the special factsof that case which were of a most unusual kind. The headnote of the report isin these terms:

The defendant parked his saloon car in a street with itsback against the pavement The car was left shut with a dog inside it. There wasno evidence that the dog had a vicious propensity. When the plaintiff, who hadparked his car near the defendants car, was walking fast the defendants carthe dog, which had been barking and jumping about the car, jumped up againstthe window in the rear of the defendants car, smashing a panel, whereby aglass splinter flew out and entered the plaintiffs eye, with the result thatthe plaintiff lost his eye. In an action for damages for personal injuries:

Held, that the danger of a piece of glass being knocked by adog out of small window at the back of the car, and of a splinter of glasshitting a passerby on the pavement, was such an unlooked for event that noreasonable man could say that a person ought to be convicted of negligence fornot taking any precautions against it.

47. In the House of Lords, Lord Dunedin referred to (1868) 3H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T.220 as having no bearing on the facts.

(1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 :37 L. J. Ex. 161: 19 L. T. 220 dealt with the duty cast upon a person who puton his land something which was dangerous if it escaped to the land of another,to keep the thing on his own land at his own peril, and, if it escaped, then hewas answerable for the consequences, whether the escape was due to negligenceor not; but there is nothing that is parallel to that circumstance in thiscase.

48. In (1932) 48 T. L. R. 577 Jones v. London County Council(1932) 48 T.I.R. 577, the headnote of the report is sufficient to indicate howobviously that case is distinguishable :

The infant plaintiff, who was 17 years of age and was anunemployed person undergoing a compulsory course of instruction at a countycouncil instruction centre, was ordered by the councils instructor, a man ofexperience, to take part in an organised game called "riders andhorses," in which one boy mounted the back of another and endeavoured tobring to the ground the foot of the boy who was acting as "rider" inan opposing pair. Caring the game the infant plaintiff, who was taking the partof a "horse," fell on the wooden flour and seriously injured his arm.In an action against the Council for negligence, on the ground that the gamewas so dangerous in itself that to order a boy to play it amounted tonegligence, the evidence of the instructor was that for 20 years he had seenthe game played without serious accident.

Held, that there was no evidence of negligence, andtherefore the action failed.

49. Scrutton L. J. thought there could hardly be anyphysical exercise in which an accident might not happen, and to say thatphysical exercises were dangerous because an accident might happen at some timeseemed to go beyond what a jury could reasonably find.

50. (1932) A. C. 562 Donoghue v. Stevenson (1932) 1932 A. C.562 :101 L.J.P.C. 119 : 147 L. T. 281 was a case which does not in any viewhelp the defendant. The plaintiff in that case had suffered ill effects fromdrinking ginger beer from a sealed bottle which contained the decomposedremains of a snail. The manufacturer of the beverage was held to be under alegal duty to the ultimate purchaser or consumer to take reasonable care thatthe article was free from defect likely to cause injury to health.

51. In (1933) 2 K. B. 297 Culter v. United Dairies Ltd.(1933) 2 K. B. 297 : 102 L. J. E. B. 663: 149 L. T. 436 the defendants servantwhile endeavouring to secure his employers horse which was displayingrestiveness in a field, cried out for help, whereupon the plaintiff went overan intervening hedge and attempted to hold the animal, which reared and threwhim to the ground thereby injuring him. The horse had been employed to draw thedefendants milk van, and there being evidence that it had bolted on twoprevious occasions, the jury found that the defendants were negligent in employingthat particular horse to draw their van. It was held that the defendantsnegligence, if any, could not be said to be the cause of the accident, inasmuchas there was a novus actus interveniens, namely, the plaintiffs attempt to holdthe horse, which he must have known was attended with risk, and, therefore,that the principle of volenti non fit injuria applied and precluded theplaintiff from recovering. Scrutton L. J. observed:

If a horse bolts in a highway and a bystander tries to stopit and is injured, the owner of the horse is under no legal liability to theinjured person.

52. The circumstances of fact and the principle of lawinvolved in (1933) 2 K. B. 297 Culter v. United Dairies Ltd. (1933) 2 K. B. 297: 102 L. J. E. B. 663: 149 L. T. 436 render that case plainly inapplicablehere. In (1926) 2 K. B. 332 Noble v. Harrison (1926) 2 K. B. 332 : 95 L. J. K.B. 318; 135 L. T. 325 the facts were as follows : A branch of tree growing onthe defendants land and overhanging a highway broke and damaged theplaintiffs vehicle which was passing thereon. It was found as a fact thatneither the defendant nor his servants knew that the branch was dangerous, andthat the fracture was due to a latent defect not discoverable by any reasonablycareful inspection. It was held that the defendant was not liable inasmuch ashe had not created the danger and had no knowledge, actual or imputed of itsexistence. The precise scope of this decision and its real ratio are broughtout in a passage in the judgment of Rowlat J. in which the cases in (1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220and (1876) 1 Q. B. D. 314 Tarry v. Ashton (1976) 1 Q. B. D. 314 : 45 L. J. Q.B. 260: 34 L. T. 97 are referred to and distinguished :

There remains one other questionnamely, whether, inasmuchas the tree in fact overhung the road, the defendant was not under an absoluteobligation to support it. The point is suggested by the judgment of Lush andQuain JJ. in (1876) 1 Q.B.D. 314 Tarry v. Ashton (1976) 1 Q. B. D. 314 : 45 L.J. Q. B. 260: 34 L. T. 97. In that case a lamp attached to the defendantspremises overhung the highway, and it was held by the two learned Judgesreferred to that he was bound to prevent it falling at his peril. The reasoningproceeds really upon the same lines as that in (1868) 3 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 and I think, failsto apply to this case on the same grounds. It may be that where a heavy objectis suspended over a highway, and must fall into it unless supported byartificial means which can only be kept in order by the person in possession ofthe premises, such person is bound absolutely to maintain the attachments. Buta branch of a tree is not kept from falling by artificial attachments to bemaintained by man, but by the natural processes which develop the tree, and itis only when accident or decay interfere that human intervention is required Isee no ground for holding that the owner is to become an insurer of nature, orthat the default is to be imputed to him until it appears, or would appear uponproper inspection, that nature can no longer be relied upon.

53. (1926) 2 K.B. 332 Noble v. Harrison (1926) 2 K. B. 332 :95 L. J. K. B. 318; 135 L. T. 325 was followed in a very recent case, (1945) 1ALL E.R. 459 Cunliffe v. Banks (1945) 1 All E. R. 459, in which a motor cyclistran into a tree which had been growing upon the defendants estate and had,owing to its diseased condition, fallen across the highway. Both cases aredistinguishable in the same way. In the present case, it scarcely needs to bestated that the immediate cause of the fall of the banner was the failure of anartificial attachment for which the defendants servants were responsible, towit a rope, and there can be no question here of any latent defect in anything, natural or artificial, which was not discoverable by careful inspection.In (1938) 159 L. T. 408 Simons v. Winslade (1938) 3 All E. R. 774 : 159 L. T.408 the plaintiff, a customer of a public house, while going through the yardslipped on some vomit, and falling, sustained injuries. The yard had beeninspected by the defendant who was the proprietor of the establishment a fewhours previously and it was then in good order. It was held that the defendantwas not liable.

54. As regards the maxim res ipsa loquitur it is to be notedthat the plaintiff gave evidence only of the circumstances in which he fell,and that the defendant did in fact testify that he had inspected the yard priorto the occurrence. As regards the rule in (1868) 3 H.L. 330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 that question did notarise, as is apparent from the grounds on which the decision was based. GreerL. J., in delivering the judgement of the Court of Appeal said :

The duty of an invitor towards his invitee was expressedin (1866) 9 L. T. at p. 486 : 1 C. P. 274 Indermaur v. Dames (1866) 1 C. P. 274: 9 L. T. at p. 486 at p. 287 as follows : "The invitee was entitled tothe exercise of reasonable care by the occupier to prevent damage from unusualdanger of which the occupier knew or ought to have known. We think that therewas no evidence which enabled the Court to say that the danger to which theplaintiff was put was one of which the defendant either knew or ought to haveknown. He could only have known of it by keeping a man constantly in the yardof the licensed premises to warn him when any filth was deposited in the yard.That would be to place on the defendant as an invitor a greater duty than heowed to the plaintiff as an invitee.

55. It is very clear that this case is an illustration ofquite another principle from that underlying (1868) 3 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220. It relates to theduty of care which the occupier of premises owes to persons whom he invitesinto those premises. As Professor Winfield says (Test Book of the Law of Torts2nd Edn., P- 610) "It falls short of strict liability of the kind set upin (1868) 3 H.L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161:19 L. T. 220. " (1945) 1 ALL E. R. 106 Norah Read v. Lyons & Co. Ltd.(1945) 1 All. E. R. 106 was a very recent decision of the Court of Appeal onwhich strong reliance was placed by Mr. Mukerji. The relevant facts are statedin the judgment of Du Parq L. J. (p. 118):

The appellants in this action were in occupation of afactory at which high explosive shells were made. They managed the factory andcontrolled the manufacture of the shells. They admit that high explosive shellsare dangerous things. The respondent worked in the factory, though not as aservant of the appellants, and while she was there her position was that of aninvitee. On an occasion when she was present in the factory a shell exploded,whereby she suffered injuries. No negligence on the part of the appellants wasproved, or alleged. It is consistent with the case pleaded, and with theevidence, that they took the utmost care for the respondents safety. There isno doubt that they were carrying on a lawful business.

It was held that the appellants were not liable for damages.On behalf of the respondent it had been argued that the principle in (1868) 3H. L. 3301 applied because that principle was not escape from the defendantsland, but escape from the defendants control, so that there would be liabilityin the case of injury resulting from non-natural user of the land. As aformulation of the essential principle of liability underlying (1868) 3 H. L.330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 andother cases of that type, this argument did not find favour with the Court.Mackinnon L. J. (at p. 117) said with reference to the judgment of Blackburn J.in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex.161: 19 L. T. 220:

There can be, in my opinion, no doubt that, that doctrine,as so enunciated, was limited to the operation of the source of danger broughtby a plaintiff upon his land, if it caused damage outside the limits of hisland to the person or property of & neighbour.

Referring to (1894) 2 Q. B. 281 Pointing v. Noakes (1894) 2Q. B. 281 : 63 L. J. Q. B. 549 : 70 L. T. 842 : 42 W. R. 506, Du Parq L. J.pointed out (at p. 119) that in that case the Court showed no disposition toextend the rule in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 :37 L. J. Ex. 161: 19 L. T. 220 to cover dangerous things which had not escapedfrom the defendants land:

There is no instance recorded in the reports of anychallenge, either successful or unsuccessful, to the interpretation put uponthe rule in (1894) 2 Q. B. 281 Pointing v. Noakes (1894) 2 Q. B. 281 : 63 L. J.Q. B. 549 : 70 L. T. 842 : 42 W. R. 506 until, as recently as 1936, thatinterpretation was reaffirmed and adopted by Lewis J. in (1936) 2 All E. R. 781Howard v. Furness Houlder Argentine Lines Ltd. (1936) 2 All E. R. 781.

Du Parq L. J. also observed (at p. 118) :

There can be no doubt that a manufacturer of explosives, whichhe knows to be dangerous, is under a duty to take a high degree of care, but Ihad supposed it to be well settled that, if he fulfilled that duty, he wouldnot be liable to any person using his premises for the consequences of anaccidental explosion.

Scott L. J. summed up his conclusions in the followingwords, which express the gist of the decision in the cases :

In the result I hold that the particular doctrine of strictliability laid down in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330: 37 L. J. Ex. 161: 19 L. T. 220 has no application to accidents incidental tothe process of manufacture occurring to persons present on the premises,whether as servants or as invitees or licensees.

56. The questions which I have set out from the judgmentshould suffice to indicate certain important limits to the (1868) 3 H. L. 330Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 rulewhich the case in (1845) 1 ALL E. R. 106 Norah Read v. Lyons & Co. Ltd.(1945) 1 All. E. R. 106 has brought out. At the same time the words quotedserve also to underline those divergences in the circumstances which render thedecision in (1945) 1 ALL E. R. 106 Norah Read v. Lyons & Co. Ltd. (1945) 1All. E. R. 106 inapplicable to the present case. The plaintiff here was not aninvitee and was not on the defendants premises at all, the accident did notoccur in any process of manufacture, and the article which caused the injury tothe plaintiff, being potentially dangerous, had been brought by the defendanton to his premises, and had escaped therefrom. That the principle in (1868) 3H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T.220 is not to be unduly attenuated in consequence of the decision in (1945) 1ALL E. R. 106 Norah Read v. Lyons & Co. Ltd. (1945) 1 All. E. R. 106 isclear from the variety of the circumstances in which the principle has beensuccessfully invoked. It has for instance been applied to the bursting ofhydraulic mains. In (1914) 2 K. B. 772 Charing Cross Electricity Supply Co., v.Lon Hydraulic Power Co. (1914) 2 K. B. 772 : 83 L. J. K. B. 1352: 111 L. T.198, the plaintiff companys underground electric cables were damaged by waterescaping from mains of the defendant company which they had laid under thestreets, and which had burst. It was held that in the absence of statutoryauthorisation the defendants were liable notwithstanding that they had beenguilty of no negligence. (1915) 84 L. J. P. 161 Hatfield v. Glasgow (1915) 84L. J. P. 161:112 L.T. 703 was cited by Mr. Mukerji as an instance ofcircumstances which do not attract the maxim res ipsa loquitur. This was a caseof a collision between ships at sea, and I do not see how it can have anyapplication.

57. Two Indian cases were cited on behalf of the defendantwhich arose out of damage caused by water escaping from its confines on thedefendants lands and causing damage to the property of the plaintiffs. In 1 I.A. 364 Madras Railway Co. v. Zamindar of Carvetnagaram (73-74) 1 I. A. 364 : 3Sar 391 : 14 Beng, L. R. 209 (P. C.), a zemindar was held by the Privy Councilnot to be liable for damage caused by the overflow, due to an extraordinaryflood, of water tanks which it was his duty to maintain on his zemindary aspart of a system of irrigation recognised by law and custom as essential to thewelfare of the people. Their Lordships distinguished (1868) 8 H. L. 330 Rylandsv. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 on the groundthat the zemindar was charged under Indian Law with the duty of maintaining thetanks in question for the benefit of large numbers of people, and that hisrights and liabilities were analogous to those of persons or corporations uponwhom statutory powers had been conferred and statutory duties imposed. TheRight Hon. Sir Robert Collier, delivering the judgment of the JudicialCommittee, quoted the following words of Chief Justice Cockburn in (1860) 5 H.&. N. 679 Vaughan v. Taff Vale By. Co. (1860) 5 H. & N. 679 : 29 L. J.Ex. 247 : 2 L. T. (N.S.) 394: 8 W. R. 549,

where the Legislature has sanctioned and authorised the useof a particular thing, and it is used for the purpose for which it wasauthorised, and every precaution has been observed to prevent injury, thesanction of Legislature carries with it this consequence, that if damagesresult from the use of such a thing independently of negligence, the personusing it is not responsible.

Regarding (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L. J. Ex. 161: 19 L. T. 220 their Lordships said (page 385):

In that case the defendants for their own purposes broughtupon their land and there accumulated a large quantity of water by what istermed by Lord Cairos a non-natural use of their land. They were under noobligation, public or private, to make or maintain the reservoir; no rights init had been acquired by other persons, and they could have removed it if theythought fit.

In my opinion these observations apply with equal force tothe displaying by the defendant in the present case, of the advertising banneron the roof of his cinema house.

58. The other Indian case upon which Mr. Mukerji relied, 3Cal. 776 Ramlal Singh v. (sic) Dhary Muhton (77) 3 Cal. 776, was one in whichthe principle laid down by the Privy Council in 1 I. A. 364 Madras Railway Co.v. Zamindar of Carvetnagaram (73-74) 1 I. A. 364 : 3 Sar 391 : 14 Beng, L. R.209 (P. C.), was applied. In this case Ainslie J. observed as follows:

Now, the law as laid down in English textbooks is, no doubt,a very useful guide; but it must not be taken to override the customs of thiscountry, customs arising from the extreme necessity of preserving water andthereby preserving the means of cultivating large tracts of land which wouldotherwise be waste.

This case also involved the defence of act of God or vismajor with which I shall presently deal.

59. A careful consideration of the cases discussed above hassatisfied me that the maxim res ipsa loquitur applies to the facts relative tothe occurrence in the present case. The plaintiffs version of those facts,supported as it is by the evidence of Raj Deo Ojha, Ram Laish Singh, andSavajit Singh who are independent and, in my opinion, truthful witnesses mustbe accepted as a correct statement of the circumstances under which theplaintiff received his injury, and the suggestion that he was struck by anarticle or articles described as shades which fell from the roof of aneighbouring building at the same time as did the banner, must be dismissed asa theory which has no foundation and is opposed to the evidence. Thisconclusion casts the burden of proving exercise of due care on the defendant.Evidence to rebut the presumption of negligence has been given on his behalf,but I am not impressed by it. It is, however, unnecessary at the moment todiscuss its inherent infirmities, or to go to the length of saying, at thisstage, that what was stated by the defendants manager, Basu Mullick, regardingthe precautions which he took to see that the banner was properly fastened to theframe of the sky sign was materially untrue. I shall refer to this aspect ofthe matter later. This, in my judgment, is a case in which the indisputablefacts attract the rule in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L.330 : 37 L. J. Ex. 161: 19 L. T. 220, and that being so, the defendant iscalled upon to answer his liability for the injury caused to the plaintiff bythe falling banner not by merely showing that due care was exercised but in oneof modes which alone constitute a defence to liability in cases of the Rylandsv. Fletcher Rylands v. Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T.220 type. One of these is the defence of act of God or vis major, and thedefendant has in fact raised it by contending that the fall of the banner wascaused by a storm of unusual severity. The evidence adduced in support of thiscontention will have to be examined for the purpose of seeing whether it provesthat, such a storm took place as would amount to act of God or vis major asthat concept has been understood in the Law of Torts. Therefore beforeapproaching the evidence regarding the weather which prevailed at the time whenthe banner fell, it will be necessary first to consider the cases in which actof God or vis major has been discussed.

60. Professor Winfield, following Pollock, has defined actof God as "an operation of natural forces so unexpected that no humanforesight or skill could reasonably be expected to anticipate it." In(1917) A. C. 556 Greenock Corporation v. Caledonian Railway (1917) 1917 A.C.556: 86 L. J. P. C. 185: 117 L. T. 483 at p. 581, Lord Parker said:

(1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H. L. 330 :37 L. J. Ex. 161: 19 L. T. 220 saved the question whether the act of God mightnot have afforded a defence, and this question was answered in the affirmativein (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 :33 L. T. 265 : 23 W. R. 693 in which the act of God had been established by thefinding of the jury, though I have some doubt whether that finding was correct.

61. Mr. Mukerji has relied strongly upon (1876) 10 Ex. 255Nichols v. Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 : 33 L. T. 265 : 23 W.R. 693, in support of his contention that the state of the weather at the time whenthe banner fell was so stormy that the defendant may plead act of God as ananswer to the plaintiffs claim. The facts of that case were as follows: Therewere some artificial lakes on the defendants land which had been formed bydamming up a stream. Owing to an extraordinary rainfall, greater and moreviolent than any the witnesses could remember, the stream and the lakes bursttheir banks and the water inundated the plaintiffs land and carried away somecounty bridges. The plaintiff, who sued on behalf of the county, contended thatthe defendant was liable on the principle of (1868) 8 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, but the Court ofExcheaquer Chamber decided that the defendant could not be held liable for anextraordinary act of nature which could not be reasonably anticipated.

62. With reference to the view taken of act of God in (1876)10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 : 33 L. T.265 : 23 W. R. 693 Fry J. said, in (1878) 9 Ch. D. 503 Nitro-Phosphate andOdams Chemical Manure Co. v. S. London & St. Katherine Docks (1878) 9 Ch.D. 503 : 39 L. T. 433: 27 W. R. 267 at p. 516 :

In order that the phenomenon should fall within that rule,it is not in my opinion necessary that it should be unique, that it shouldhappen for the first time; it is enough that it is extraordinary, and such ascould not reasonably be anticipated. That appears to me to be the view whichhas been taken in all the cases, and notably by Lord Justice Mellish in therecent case in (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255 : 44 L.J. Ex. 134 : 33 L. T. 265 : 23 W. R. 693.

This statement was assented to by Lord Coleridge, C. J. in(1881) 7 Q. B. D. 418 Dixon v. Metropolitan Board of Works (1881) 7 Q. B. D.418 : 50 L. J. Q. B. 772 : 45 L. T. 312 : 30 W. R. 83 at pp. 421 and 422.(1876) 10 Ex. 255 Nichols v. Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 : 33L. T. 265 : 23 W. R. 693 was distinguished in (1917) A. C. 556 GreenockCorporation v. Caledonian Railway (1917) 1917 A.C. 556: 86 L. J. P. C. 185: 117L. T. 483. Professor Winfield has dealt with this matter in a short compass atp. 53 of his Text Book of the Law of Tort (2nd Edn.):

The principle underlying (1876) 10 Ex. 255 Nichols v.Marsland (1875) 10 Ex. 255 : 44 L. J. Ex. 134 : 33 L. T. 265 : 23 W. R. 693 isunquestioned, but the decision itself has aroused adverse criticism in latercases, notably in (1917) A.C. 556 Greenock Corporation v. Caledonian Railway(1917) 1917 A.C. 556: 86 L. J. P. C. 185: 117 L. T. 483. The corporation, inlaying out a park, constructed a concrete paddling pool for children in the bedof a stream and thereby altered its course and obstructed its natural flow.Owing to rainfall of extraordinary violence, the stream overflowed at the pondand a great volume of water, which would have been safely carried off by thestream, in its natural course, poured down a street and flooded the property ofthe railway company. It was held by the House of Lords that this was not damnumfatale (the equivalent in Scots Law of the act of God) and that theCorporation was liable. Some of the noble and learned Lords cast doubt upon thefinding of facts by the Jury in (1876) 10 Ex. 255 Nichols v. Marsland (1875) 10Ex. 255 : 44 L. J. Ex. 134 : 33 L. T. 265 : 23 W. R. 693.

In (1917) A. C. 556 Greenock Corporation v. CaledonianRailway (1917) 1917 A.C. 556: 86 L. J. P. C. 185: 117 L. T. 483 Lord Finlayobserved:

It is true that the flood was of extraordinary violence, butfloods of extraordinary violence must be anticipated as likely to take placefrom time to time.

and on this point Lord Dunedin said :

The appellants argue that.....if they can show that thisrainfall was much in excess of what had been previously observed in Greenockthat is enough. I do not think that you can rightly confine your view toGreenock alone. No one can say that such rainfall was unprecedented inScotland; and I think the appellants were bound to consider that some dayGreenock might be subjected to the same rainfall as other places in Scotlandhad been subjected to.

The italics are mine. They serve to remind one of the factthat, in the present case, the incident happened during the monsoon, a seasonin which stormy weather is not unusual and storms of considerable severity areby no means unprecedented. Whether the climatic disturbances of the 5th July1943 amounted to a severe storm at all is a question of fact which I shall dealwith later upon the evidence. The Great Western Railway of Canada v. Braid andThe Great Western Railway of Canada v. Fawcett (1863) 1 Moo. P. C. (N. S.) 101: 8 L. T. (N. S.) 31: 11 W. R. 444 were two appeals from Canada which wereheard together by the Privy Council. They arose out of two suits for damagesfor deaths occasioned by a railway accident which was caused by the collapse ofan embankment. The case was earlier than (1868) 3 H.L.330 Rylands v. Fletcher(1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, and it is interesting tonote that two of the matters which it involved are the principle of the maximres ipsa loquitur, and the defence taken on behalf of the railway company, thatthe collapse of the embankment was due to storm of such an extraordinary naturethat no experience could have anticipated its occurrence. Lord Chelmsford,delivering the judgment of the Judicial Committee, said regarding the formermatter (at p. 115 ):

There can be no doubt that when an injury is alleged to havearisen from the improper construction of a railway, the fact of its havinggiven way will amount to prima facie evidence of its insufficiency, and thisevidence may become conclusive from the absence of any proof on the part of thecompany to rebut it.

Regarding the second matter, his Lordship said (at p. 120):

Their Lordships, without attempting to lay down any generalrule upon the subject, which would probably be found to be impracticable, thinkit sufficient for the purposes of their judgment in these cases to say that therailway company ought to have constructed their works in such a manner as to becapable of resisting all the violence of weather which in the climate of Canadamight be expected, though perhaps rarely, to occur.

His Lordship referred to what the witnesses had said indescribing the storm, and then went on to make the following comment (p. 121):

In the whole of this evidence there is nothing more provedthan that the night was one of unusual severity, but there is no proof thatnothing similar had been experienced before, nor is there anything to lead to aconclusion that it was at all improbable that such a storm might at any timeoccur.

His Lordship after referring to the report of the companysengineer, said (page 122) :

Whatever his meaning may be, it is evident that theembankment was insufficiently provided with means of resisting the storm,which, though of unusual violence was not of such a character as might notreasonably have been anticipated and which, therefore ought to have beenprovided against by all reasonable and prudent precautions.

63. (1868) 1 Moo. P. C. (N. S.) 101 (1863) 1 Moo. P. C. (N.S.) 101 : 8 L. T. (N. S.) 31: 11 W. R. 444 as well as (1917) A. C. 556 GreenockCorporation v. Caledonian Railway (1917) 1917 A.C. 556: 86 L. J. P. C. 185: 117L. T. 483, were followed by the Privy Council in (1922) 3 A. C. 555 City ofMontreal v. Watt & Scott, Ltd. (1922) 2 A. C. 555 : 91 L. J. P. C. 239 : 38T. L. R. 1 where it was laid down that it was the duty of a municipality inconstructing sewers, to make them capable of coping with the amount of waterwhich might be expected from time to time in the course of years.

64. In 3 Cal. 776 Ramlal Singh v. (sic) Dhary Muhton (77) 3Cal. 776, Ainslie J. followed (1877) 2 Ex. D. 1 Nichols v. Marsland (1877) 2Ex. D. 1 : 46 L. J. Ex. 174: 38 L. T. 725 : 25 W. R 173, and said:

This case seems to us to apply distinctly to the present. Itappears from the judgment of the Judge that the damage in the present instancewas caused by an unusual inundation which he describes as bringing down fourtimes the ordinary quantity of water. It must be taken that the damage wascaused by the act of God, and not by the act of the defendants, who are notshown to have failed in making provision for properly dealing with suchquantities of water as might reasonably be expected to accumulate.

65. The cases considered above bring us back to thedefinition of act of God or vis major contained in Professor Winfields book,which, at the expense of repetition, I would quote again: "an operation ofnatural forces so unexpected that no human foresight or skill could reasonablybe expected to anticipate it." I shall now examine the evidence regardingthe "storm" which is alleged by the defence to have taken place onthe 5th July 1943.

66. It was suggested in cross-examination to the plaintiffswitnesses Raj Deo Ojha, Ram Laish Singh, and Savajit Singh, that there was astorm or strong wind at the time when the banner fell, but they allcategorically denied it. It was similarly suggested to Mr. S. N. Gupta that theweather was stormy on the evening of the 5th July, but he maintained thatthough there was cloud and rain there was no storm. The witness Raj Deo Ojhaconceded that when the banner fell there was a gust of wind, and the plaintiffadmitted that this might have been the case.

67. The defendants witness Basu Mullick, the manager of theRupali Cinema, deposed on the other hand that on the 5th July the weather wascyclonic. The question is set at rest by the evidence of Bishnupada Shaha, whois employed as the Chief Observer in the Weather Office of the MetereologioalDepartment at Alipore. This witness is a Master of Science of the CalcuttaUniversity and gave evidence as an expert. He impressed me as beingdisinterested and independent. From the records of his department he testifiedthat on the afternoon and evening of the 5th July there was not a great deal ofrain and that the velocity of the wind was as follows : From 5.30 P. M. to 7.14P. M. it was moderate, i. e. from 8 to 10 miles per hour. From 7.14 to 8.40P.M. it was rather high, the maximum gust being about 27 miles per hour atabout 7.46 P. M. From 8.40 P. M. to 11.30 P.M. the wind was again moderate, i.e. from 8 to 10 miles per hour. The witness described the phenomena which occurin different states of wind velocity: at 22 to 27 miles per hour, largebranches of trees are put in motion, whistling is heard in telegraph wires, andumbrellas are held with difficulty. At 28 to 33 miles per hour whole trees arein motion and inconvenience is felt in walking against the wind. At 34 to 40miles per hour, twigs are broken off and walking is impeded. At 41 to 48 milesper hour slight structural damage occurs, and loosely fastened corrugated ironis removed from roofs. The witness further stated that wind velocities of from31 to 48 miles per hour are sometimes experienced in Calcutta during norwestersqualls, and that gusts of from 28 to 38 miles per hour are not uncommon in themonsoon season. This evidence puts an end to the plea of act of God, for, if itis accepted, as I think it must be, then it is idle to say that the force ofthe wind was so unexpected that no foresight could reasonably be expected toanticipate it.

68. Although this conclusion is sufficient to fastenliability on the defendant upon the principle in (1868) 3 H. L. 330 Rylands v.Fletcher (1868) 3 H. L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, I would gofurther and hold that the presumption of want of due care on the part of thedefendant or his servants which the maxim of res ipsa loquitur raises againstthem has not been rebutted. In not taking precautions against winds which arenot unusual during the monsoon months, the defendants were prima facienegligent, and the fact that the banner fell in a wind which was not above 27miles per hour in velocity, goes a long way to discredit all the elaborateevidence of Basu Mullick and Amitava Boy regarding the tying of the banner tothe framework of the sky sign on the 11th June by three strands of new coirrope. I cannot believe this evidence, for, if it is true, the banner would nothave fallen. As stated before, it was made fast in a position flat against thegalvanised sheeting of the sky sign structure. If the wind was from the west,that would have pressed against the sky sign frame, not torn it away fromthere. If the wind was from the east, the banner would have been in the lea ofthe sheeting, which would have kept the wind away from it. I find that there issome confusion in the transcript of the evidence of Bishnupada Shaha as towhether the wind that evening was from the south-west or a south-east, but, forthe reason just stated, I do not think that matters much. It certainly does notsupport the explanation advanced by Basu Mullick, that a strong wind eitherfrom the north or the south tore into the narrow space between the galvanisedsheeting and the banner, and caused the ropes to part in spite of their havingbeen securely tied. Port or starboard, windward or leaward, it makes nodifference to Basu Mullick. And then the ropes at all the four corners partedat the same time. Had one gone, and the others held, the banner would not havefallen into the street, and the evidence given to show that every precautionwas taken to see that the banner was securely fastened to the sky sign framemight not have been so transparently untrue. I hold that the defendant isliable upon the principle in (1868) 3 H. L. 330 Rylands v. Fletcher (1868) 3 H.L. 330 : 37 L. J. Ex. 161: 19 L. T. 220, and I further find that there wasnegligence on the part of his servants for which he is responsible in law,inasmuch as proper care was not taken to secure the banner in such a way as toprevent it from being blown into the street during monsoon weather.

69. I come now to the question of damages. The plaintiff,who is 51 years of age, is employed as a clerk in the Department of theViceregal Estates which is under the Public Works Department. His salary andallowance amount to Rs. 228 per month, and he is entitled to free quarters.

70. The plaintiffs evidence is that when the banner fell onhim, it felted him to a sitting posture and stunned him. On regainingconsciousness he discovered that he was bleeding profusely from the head. Twoor three persons, who turned out to be armed police constables, and who wereoff duty at the time, came to his assistance and lifted the banner off hisperson. One of these men bandaged his head, and he was then taken by one ofthem in a rickshaw to the Shambhunath Pundit Hospital. There he was againbandaged, admitted as an indoor patient, and put to bed. As the bleedingpersisted, he was operated upon under a general anaesthetic that night. Heremained in the hospital for five days till the 10th June, when, at his ownrequest, he was allowed to go home. Dr. A. M. Dutta, from this hospital,attended him daily at his house for more than one month. He paid Dr. Dutta Rs.240 for his services, and he had to spend Rs. 200 on medicines and specialdiet, and Rs. 10 for conveyance to and from the hospital. He had to apply forone months leave of absence from his post, and was unable to return to it tillafter the 8th August 1943, on which date he was examined by Lt. Col. Thakur whocertified him as fit to resume his duties.

71. The plaintiffs evidence regarding the occurrence issupported by the witnesses, Raj Deo Ojha, Ram Laish Singh and Savajit Singh.His evidence regarding the subsequent facts finds corroboration in thetestimony of the following witnesses. Mr. S. N. Gupta, the Supervisor of the ViceregalEstates, and the plaintiffs immediate official superior, Dr. S. K. Mitra,Resident Medical Officer of the Shambhunath Pundit Hospital, Dr. A. M. Dutta,House Surgeon at that hospital, and Dr. N. N. Chanda, another House Surgeon atthe same hospital.

72. The cut on the plaintiffs head is described by thedoctors as three and a half inches long, one inch wide, and bone-deep. There isno doubt that the wound bled for several hours before the hemorrhage wasstopped by the tying of certain blood vessels. Apart from pain in the head, theplaintiff said he suffered for a few days from severe pain in the shoulder. Hisevidence further is that before the accident he had enjoyed perfect health, andhad taken no leave for about 8 years, that since the mishap his health hasdeteriorated to such an extent that he suffers from nervousness when he goesout, be cannot concentrate on his work as before, he is not capable ofprotracted effort, his memory has been affected and his eyesight impaired. Hestated that, in the usual course, he had a chance of being selected to fill ahigher official appointment upon a salary which might have reached Rs. 400 permonth, but as his efficiency has been reduced his superior officer, Mr. Gupta,was unable to recommend him for such a selection. This statement is fullyendorsed by Mr. Gupta, who also deposed that the plaintiff was a hard-workingand experienced man who enjoyed perfect health before the accident, but thatsince then the state of his health has been such as to have caused aconsiderable falling off in his efficiency.

73. Dr. A. M. Dutta, who treated the patient while he was inhospital, and later attended upon him at his house, has testified that thecondition of the wound which was healing nicely for the first few days,suddenly deteriorated. Upon examination the witness found that the plaintiffhad both diabetes and high blood pressure. In the witness opinion the diabetesmight possibly have been the result of a disturbance of the automatic nervoussystem brought on by a shock to the brain caused by the head injury. I mighthere say that on this point the witness has been contradicted by a Dr. Treu,who was examined as a medical expert on behalf of the defence, but who hadnever examined the plaintiff. I do not take Dr. Dattas opinion as to the causeof the diabetes from which the plaintiff was suffering into consideration inassessing damages, and in estimating that I shall leave diabetes out of accountaltogether. But Dr. Datta asserted that the plaintiffs injury was, by reasonof its location and extent, a serious injury. The effect of Dr. Dattasevidence was that, in his opinion, the state of health to which this injury hadbrought the plaintiff was symptomatic of a shortened expectation of life and areduced capacity for work. I have no reason whatever for not accepting thetestimony of the witnesses referred to above in all the particulars justindicated, save and except the statement of Dr. Datta that the diabetes, andperhaps the blood pressure, from which he found the plaintiff to be suffering,may possibly have been due to his injury. This is a pure matter of speculativeopinion and it would be safer not to place any reliance upon it. But as it isonly that, it reflects in no way upon the rest of Dr. Duttas evidence, whichfinds ample support in the evidence both of the plaintiff and of his immediateofficial superior, Mr. S. N. Gupta.

74. A number of cases have been cited by both sides upon thequestion of assessment of damage, but not all of these have application here. Ishall refer briefly to certain decisions which, in my opinion, afford someguidance in the special facts of the present case.

75. (1879) 4 Q. B. D. 406 Phillips v. L. & S. W. Ry.(1879) 4 Q. B. D. 406 was a case which arose out of a railway accident in whichthe plaintiff, an eminent medical practitioner, sustained injuries, for whichhe claimed damages against the railway company. The jury awarded the plaintiff7,000. The Queens Bench Division directed a new trial on the ground of inadequacyof damages. An appeal from that order was dismissed by the Court of Appeal,reported in (1879) 5 Q. B. D. 78 Phillips v. L. & S. W. Ry. Co. (1879) 5 Q.B. D. 78 : 41 L. T. 121 : 28 W.R. 10. The second trial took place before LordColeridge C. J., and the jury awarded the plaintiff 16,000 as damages. Thedefendant again moved for a retrial, but a rule was refused, and this decisionwas upheld by the Court of Appeal reported in (1879) 5 C. P. D. 280 Phillipsv. L. & S. W. Ry. Co. (1879) 5 C. P. D. 280 : 49 L. J. Q. B. 233 : 42 L. T.6. Bramwell L. J. referred (p. 287) to the summing up of Lord Coleridge at thesecond trial, and said:

I think that the direction of Lord Coleridge was such as isusually given and was right. I have tried as Judge more than a hundred actionsof this kind, and the direction, which I, in common with other Judges have beenaccustomed to give the jury has been to the following effect; you must give theplaintiff a compensation for his pecuniary loss, you must give him compensationfor his pain and bodily suffering; of course it is almost impossible for you togive to an injured man what can be strictly called a compensation; but you musttake a reasonable view of the case, and must consider under all thecircumstances what is a fair amount to be awarded to him. I have never known adirection in that form to be questioned.

76. In (1936) 1 K.B. 192 Owen v. Sykes (1936) 1 K. B. 192 :105 L. J. K. B. 32 : 154 L. T. 82 the plaintiff, a medical practitioner, whowas thirtynine years of age and an athlete, sustained through the negligence ofthe defendants servants, injuries having permanent results which necessitatedhis employing an assistant to help him to carry on his practice for the rest ofhis life, and also prevented him from following his athletic career. The actionwas tried without a jury, and the Judge awarded 10,000 as damages. The Court ofAppeal held, that although if they had tried the case in the first instance,they would probably have awarded a smaller sum as damages, yet they would notreduce the amount awarded by the trial Judge, as they were not satisfied thatthe Judge acted upon a wrong principle of law, or took an erroneous view of theevidence as to the damage suffered by the plaintiff, or made some mistake in givingweight to evidence that ought not to have affected his mind, or in leaving outof consideration something that ought to have affected his mind, or that theamount was so high or so low as to make it an erroneous estimate of the damageto which the plaintiff was entitled.

77. This decision adopted the criterion laid down by GreerL. J. in (1935) 1 K. B. 354 Flint v. Lovell (1935) 1 K.B. 354 : 104 L. J. K. B.199 : 152 L. T. 231 at p. 360, which case is an authority for the propositionthat in assessing damages, a Judge is entitled to take into consideration asone of the elements of damage, the fact that the plaintiffs normal expectationof life has been materially shortened. That principle was approved by the Houseof Lords in (1937) A. C. 826 Rose v. Ford (1937) 1937 A. C. 826 : 106 L. J. KB. 576 : 157 L. T. 174 : 1937-3 All E. R. 359 where Lord Wright said (p. 847):

I think he has a legal interest entitling him to complain ifthe integrity of his life is impaired by tortious acts not only in regard topain, suffering and disability, but in regard to the continuance of life forits normal expectancy. A men has a legal right that his life should not beshortened by the tortious act of another. His normal expectancy of life is athing of temporal value, so that its impairment is something for which damagesshould be given.

In (1938) 3 ALL E.R. 483 The Aizkarai Mendi (1938) 3 AllE.R. 483:1938-P 263 :107 L.J.P. 141 : 159 L. T. 490, the principle enunciatedin (1937) A.C.826 Rose v. Ford (1937) 1937 A. C. 826 : 106 L. J. K B. 576 : 157L. T. 174 : 1937-3 All E. R. 359 regarding assessment of damages or loss ofexpectation of life was applied. In (1938) 1 K.B. 257 Roach v. Yates (1938) 1K.B. 257 : 107 L.J.K.B. 170: (1937) 3 All E.R. 442, a bricklayer, agedthirty-two, sustained such serious injury to the brain as to render himpermanently unfit for work, and so incapable of looking after himself that hiswife and sister-in-law, whose total wages amounted to 3 a week, had to give uptheir employments to attend on him day and night, and his expectation of lifewas shortened from thirty to sixteen years. At the time of the accident he wasearning an average wage of 3-10-0 a week. Damages to the extent of 6542including special damage of 542 were awarded. In this case it was held by theCourt of Appeal that in assessing damages, it was proper to take into accountthe following amongst other elements: in respect of the mans prospective lossof wages, the sum which he would have earned during what, but for the accident,would have been his normal life according to actuarial tables; in respect ofhis physical and mental pain and suffering, and the shortening of his life, asum in estimating which it should be kept in view that no amount of money couldfully compensate him for his injuries, and that the most that could be done wasto award him such compensation as was reasonable in all the circumstances ofthe case.

78. In (1904) 2 K.B. 250 Johnstone v. G. W. Railway (1904) 2K. B. 250 : 73 L. J. K. B. 568 : 91 L. T. 157 : 52 W. R. 612, the plaintiff, aman of twenty-eight years of age, had qualified as a marine engineer and had agood prospect of obtaining an appointment as a superintending engineer. Owingto injuries received in a railway accident he was rendered incapable of fillingsuch a position, and the jury awarded him 3,000 as damages. In declining tointerfere with the verdict, the Court of Appeal held that the jury wereentitled to take into consideration the possibility that the plaintiff wouldnever be able to accept the position of a superintending marine engineer.Yaughan Williams L. J. approved of the direction given to the jury by the trialJudge, which was based on (1873) 8 Ex. 221 Rowley v. London & N. W. Railway(1873) 8 Ex. 221 : 42 L. J. Ex. 153 : 29 L.T. 180 : 21 W. R. 869;

There are the accidents of life and other elements whichhave to be taken into consideration which ought to prevent you giving him sucha sum as would be simply an investment for him, and enable him to do nothing.Still he is entitled to a fair sum, considering the position for which he wasfitted, and the position in which he is now.

79. (1941) A. C. 157 Benham v. Gambling (1941) 1941 A. C.157 : 110 L. J. K. B. 49 : 164 L. T. 290 : (1941) 1 All E.R. 7, was a case inwhich a father brought an action claiming damages in respect of the death ofhis child aged 2« years, who was so injured in a motor accident that he diedthe same day. Lord Simon L. C., delivering the judgment of the House of Lords,observed with reference to the shortening of life as a consideration inassessing damages (at p. 166) :

it is necessary for the Court to be satisfied that thecircumstances of the individual were calculated to lead, on a balance, to apositive measure of happiness, of which the victim has been deprived by thedefendants negligence.

80. These cases make it apparent that considerations whichmay be permitted, in circumstances where they arise, to influence an assessmentof damages include; (1) pain and suffering, (2) loss of earnings or loss of aprospect of lucrative employment, and (3) a shortened expectation of lifeprovided that life held a positive measure of happiness. Upon the evidence towhich I have referred, and which I accept as representing a strictly truthfulaccount of the condition to which the plaintiff has been reduced by theaccident I am bound to hold that he has suffered, firstly, bodily pain, thephysical discomfort and mental anguish of greatly impaired general health anddisability; secondly, loss of the prospect of enjoying for 4 or 5 years a morelucrative position than that which he now holds, and, thirdly, a shortenedexpectation of life that held promise of the happiness which flows from labourefficiently and easily performed. I do not think Rs. 5,000 would be either toolarge or too small a figure in which to express an estimate of the injury whichthe plaintiff has suffered.

81. As regards special damages, I accept the plaintiffsevidence that he had to spend Rs. 450 in connection with medical treatment, andI think it is a moderate estimate. In the result, my findings upon the issuesraised at this trial are as follows :

82. On issue No. 1This Court has jurisdiction to try thissuit. As stated before jurisdiction was conceded, but I should also say thatthe defendants admission that he used to receive his business letters, byappointment with the post-man at 5, Dhurrumtolla Street places the matterbeyond doubt. On Issue No. 2 The plaintiff was injured on 5th July 1943, asalleged in the plaint. On Issue No. 3The plaintiff sustained a cut on the head3« inches long, 1 inch wide, and bone deep which has brought about a generaldeterioration of his health, and a reduction of his power to concentrate on hiswork. On issue No. 4 The occurrence was not due to a severe storm or to anyunavoidable or unexpected cause. On issue No. 5 It was due to the negligenceof the defendants servants. On issue No. 6The plaintiff is entitled to adecree for Rs. 5450. I decree the suit for that amount with costs. Before Ileave this case there is a word I wish to say in the public interest.

83. The plaintiff, an inoffensive passer-by in publicthoroughfare, was severely injured by an advertising device consisting of apicture on cloth in a wooden frame 12 ft. by 3« ft. which fell from itsattachment on a sky sign framework erected on the roof of the Rupali CinemaHouse. I have found that the mishap was due to the negligence of the person orpersons who had caused this contrivance to be fastened to the frame of the skysign by means of ropes, and I have awarded the injured man a sum of Rs. 5450 asdamages both general and special.

84. If the present lot of the pedestrian in Calcutta is tobe aggravated by danger from the falling of articles attached to licensedsky-signs in such a way that a monsoon gust will blow them into the streets,then a new terror will be added to life. This is a matter which the CalcuttaMunicipality can control.

85. It is not helpful to say, as the Chief Law Officer orthe Corporation, who was called as a witness by the Court, has said, thatbecause a sky sign is, according to its definition in the Act, not a sky-signtill an advertisement is displayed from it, the licensee has the right to tiethings to the framework and that he commits no violation of the conditions ofhis licence unless he has neglected to take proper precautions. The factremains that the Municipality can, if it will, enforce frequent and regularsupervision of licensed sky-signs so as to prevent occurrences like the onewhich has given rise to this action for damages. An unsatisfactory state ofthings is disclosed by the evidence of the Municipalitys District BuildingSurveyor, who deposed as follows :

Q. 73. Is it not the duty of the Corporation to inspect fromtime to time to see whether the proprietor of the cinema is making proper useof the sky signs or not

Ans. The difficulty is this, there is only one buildinginspector for 2/3 wards and when something wrong happens to it they dont gettime to inspect it.

Q. 74. Did the Corporation take any steps against the ownerof the Rupali

Ans. I dont find anything in the record.

86. Winfield cites the instance of the eighteen Jews uponwhom the Tower of Siloam fell, narrated in the New Testament, as anillustration of a tendency to regard the catastrophe as a punishment for thesins of the injured person. I am sure the Citizens of Calcutta would not wishto see sky-signs embellishments classified as instruments of destiny in thesame category as the biblical tower. I hope the matter will receive the earlyconsideration of the Municipal authorities.

87. There is one other matter. It is pleasant to be able tobring to the notice of the police authorities an instance of laudable conductby constables. The men of the armed police, Raj Deo Ojha, Ram Laish Singh, andSavajit Singh, especially the first named, (that they were all off duty at thetime), displayed commendable initiative as well as kindness in rendering firstaid to the injured man, and in removing him with promptitude to the hospital.Conduct like this deserves praise and encouragement, and one hopes it may beemulated by others in the rank and file of the Indian Constabulary.

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Manindra Nath Mukkerjee vs. Mathuradas Chatturbhuj (10.07.1945 - CALHC)