[1947] EACA 85

#### ORIGINAL CIVIL

#### Before BOURKE, J.

# THE MUHORONI SUGAR COMPANY, LIMITED, Plaintiffs

$\pmb{\nu}.$

# CHEMEROS, LIMITED, Defendants

# Civil Case No. 9 of 1947 of Kisumu District Registry

Damage by fire—Negligence—Absolute liability of owner of land on which fire started—Control of Grass Fires Ordinance, 1941—Damages.

During the absence of the defendants' farm manager and without his authority the African headman employed on the farm ordered the defendants' servants, who were under his sole direction and charge while the manager was away, to clear by fire a portion of land to prepare it for ploughing. No precautions were taken to prevent or control the spread of the fire. The fire spread and consumed fifty acres of sugar cane on the adjoining farm of the plaintiffs.

The fire was lit in contravention of the Control of Grass Fires Ordinance, 1941.

The plaintiffs sued the defendants in damages.

Held (6-6-47).—(1) That there was negligence on the part of the defendants' servant in causing the lighting of the fire without taking proper precautions

(2) That the rule of absolute liability established by Rylands v. Fletcher applied and the defendants were responsible for the damage caused by the spread of the fire to plaintiffs' land.

(3) That the liability of the defendants was not affected by the Control of Grass Fires Ordinance, 1941.

The plaintiffs were awarded Sh. 3,300 with half costs.

Cases referred to: Black v. Christchurch Finance Co. (1894) A. C. 48; Cullinan v.<br>Vair (1922-23) IX L. R. E. A. 46; Rylands v. Fletcher L. R. 3 H. L. 330; Turberville v.<br>Stampe (1697) 1 Ld. Raym 264; Huzzey v. Field (1835) 2 C. M

**Dhanwant Singh for the Plaintiffs.**

C. M. Patel for the Defendants.

JUDGMENT.—On the 16th November, 1946, a fire was kindled upon the land of the defendant company (Chemeros, Ltd.) which spread and consumed sugar cane growing upon fifty acres of the adjoining farm belonging to the Muhoroni Sugar Co., Ltd. This action is brought to recover as damages the amount of Sh. 12,000 alleged to be the value of the sugar cane destroyed. The circumstances are that upon the day in question Mr. Toft, the farm manager for Chemeros, Ltd., was absent in Nairobi, leaving the headman Orona s/o Ouma in charge of the labour upon the farm. Earlier in the same month Mr. Toft had said to the headman that maize stalks remaining upon the land would have to be burnt in order to permit of ploughing. I am satisfied that Mr. Toft gave no instruction to Orona to proceed with the burning and I accept his evidence to the effect that it was his intention to follow his usual practice of causing a fire to be kindled for husbandry purposes under his personal supervision and after complying with the requirements of the Control of Grass Fires Ordinance, 1941. It is evident that Mr. Toft fully realized the danger of firing grass and stubble and appreciated the necessity for taking due precautions to prevent a spread to neighbouring property. I accept that he did not on this occasion expressly authorize and would not consent to allow a native employee to fire the land unless he was present to supervise the operation. However, on the 16th November the headman Orona instructed a native labourer, Agunjo s/o Minyania, with six young boys, to burn the stalks of maize. They carried out the order and the

fire so caused spread to the plaintiff's farm and destroyed thereon a thirteen months' old crop of sugar cane covering, for the purposes of this claim, fifty acres. No precautions were taken to prevent or control the spread of the fire. The defendants' manager said in evidence that he thought the headman must have ordered the burning through an excess of zeal and in the mistaken belief, for which he had been given no cause, that his master would be pleased. Orona Ouma told that he directed the firing of the maize stalks because at the time ploughing was being done with a tractor and it was necessary for this purpose to get the stalks out of the way by burning. I have no reason to think the witness was not speaking the truth. He recounted how the manager had said to him: "One day we will have to fire the shamba—we are getting very late". He admitted that Mr. Toft did not authorize him to burn the shamba in his absence, but did not tell him that he was not to do so.

So the position is that servants of the defendant lit the fire on the order of the defendants' headman, Orona, under whose sole direction and charge they were placed while the manager was away. The fire was lit to clear a portion of land of maize stalks to enable the tractor to be moved onto it and continue the ploughing there. It is evident that there was negligence on the part of the defendants' servant in causing the lighting of a fire on open maize and bush-land, an operation attended with great danger, and failing to discharge the duty to see that all proper precautions were taken (see Black v. Christchurch Finance Co. (1894) A. C. 48). But the case, as in *Cullinan v. Vair* IX L. R. E. A. (1922-23) 46, is clearly one in which the principle applicable is that laid down in Rylands $v$ . Fletcher L. R. 3 H. L. 330—"when a man brings or uses a thing of a dangerous nature on his own land he must keep it at his own peril and is liable for the consequences if it escapes and does injury to his neighbour". It is pressed for the defendants that the servant was not acting within the scope of his employment, that there was no authorization express or implied and so the defendant cannot be held liable.

"The authority which a master really intends the servant to have is rarely defined in express terms; it is generally left either partially or wholly to be inferred from the surrounding circumstances and the nature of the business in which the servant is employed" (Clerk & Lindsell on Torts 9th Ed. p. 74). In Tuberville v. Stampe (1697) 1 Ld. Raym 264 (and see Bevan on Negligence 4th Ed. Vol. 1 p. 721), Holt, C. J., said that: "if my servant throws dirt into the highway, I am indictable. So in this case if the defendant's servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended that the servant had authority from his master, it being for his master's benefit"; and in Huzzey v. Field (1835) 2 C. M. & R. 440: "The servant was acting at the time in the course of his master's service and for his master's benefit; and his act was that of the defendant, although no express command or privity of his master was proved". I understand the argument advanced on behalf of the defendants to be that the act of the servant was unlawful having regard to the provisions of the Control of Grass Fires Ordinance, 1941, and that accordingly no authority should be held to be implied on the part of the master. The law is stated in Clerk & Lindsell (op. cit. p. 74) as follows: "In considering what acts the servant has an implied authority to do, it seems that no intention is to be inferred on the part of his master to authorize the doing of any acts which he might not lawfully do himself".

Accepting that as the law, can it have any bearing in the circumstances of this case so as to free the defendant from responsibility? The act of the servant in causing the fire to be started was unlawful under the provisions of the Ordinance and similarly had it been Mr. Toft, the manager, who himself started the fire and failed to observe those provisions his act would be equally unlawful. Mr.

Toft, it is argued, as representing the defendant company, cannot be properly held to have impliedly authorized an act which he might not lawfully do himself and so the defendant is not liable. If that contention is sound then it seems to me that the effect of the Ordinance would in many such cases be to leave a large loophole of escape in civil liability for the occupier or owner where his farm worker without express authority fires vegetation on the farm in non-observance of the requirements of the Ordinance but in the cause of good husbandry and for the benefit and advantage of the master. But I think the argument, for what it is worth, is sufficiently met by the terms of section 16 of the Ordinance: "Nothing in this Ordinance contained shall be deemed to affect the right of any person aggrieved to receive damages by civil action for any loss sustained by him". It would accordingly seem that any right of the plaintiffs to recover in this action falls to be determined as if the Ordinance had not been promulgated at all.

In this case the rule of absolute liability established by Rylands v. Fletcher applies and I accept the submission made in the course of the following passage from Salmond on Torts, 9th Ed. p. 589, as an accurate statement of the law:

"It is equally clear that the term stranger does not include any person employed or authorized by the defendant to deal in any way with dangerous things on his land; for the acts of such a person, even though he is an independent contractor, and even though he acts in excess or disregard of his authority, the occupier is vicariously liable. But what shall be said of persons lawfully upon the defendant's land with his permission, but without authority to bring upon it, or to deal with, dangerous things—for example, the members of his family, his servants, his guests, or licensees permitted to use the land? It is submitted that for the acts of all such persons in bringing or keeping dangerous things on the premises, or in meddling with such things already on the premises, the occupier is liable under the rule in Rylands v. Fletcher."

In my judgment the plaintiffs have on the evidence established their case. for the recovery of damages against the defendants. The claim is for Sh. 12,000 as representing the market price of the cane destroyed five months subsequent to such destruction, i.e. in April, 1947, when it might normally be expected to reach a stage of growth making it fit for cutting. The estimate of loss given in evidence by Mr. Guy Notidge, the general manager of the plaintiff company, is 1,000 tons of cane, i.e. the grown crop in April, 1947, over fifty acres at 20 tons to the acre and at a price value of Sh. 12 a ton. I prefer the testimony, which I accept, of the independent and obviously highly qualified valuer, Mr. Burnett Bourke. He tells that the ordinary market price of grown cane has been Sh. 8/50 a ton for many years and assesses the value of the cane burnt, being 13 months old at the time, in relation to its value at maturity. The figure he arrives at is Sh. $5/50$ a ton and I accept that as a fair and reasonable estimate of the value of the cane as it stood just prior to the burning. The roots were not harmed and<br>a fresh crop sprang from them after the fire. The cane was being grown for crushing and I do not take the figure given as the value of the cane for cutting.

I find the weight of the cane burned on the 16th November, 1947, was 12 tons to the acre, and it extended over 50 acres. The damages are, therefore, fixed at Sh. 3,300 and I give judgment for the plaintiff against the defendant for the said amount with half costs and interest at the legal rate from the date of judgment to date of final payment.