PIGNEGUY Vs. YEMEN LTD

JUDGEMENT

(1.) In this action the appellants claimed to recover from the respondent damages for injury by fire to their estate called Barachois in Mauritius. The fire, they alleged, began on the respondent's estate and spread to the appellants' property, doing considerable damage but to an extent not yet ascertained, since the Court of first instance by agreement between the parties dealt only with the question of liability and left the quantum of damage to be ascertained later. It was common ground in argument before their Lordships that the principles upon which liability depended were to be found in the French Civil Code, sections 1382 to 1384, and that in accordance with those principles the mere fact that the fire originated on the premises of the respondent and spread to those of the appellants was not enough. In order to establish liability it was necessary to prove "faute," which for this purpose bears the same meaning as does "negligence" in English law, i. e., the neglect of such care as the law enjoins. Probably the extent of the obligation can be generally defined as a duty to act as a reasonably prudent man would in the circumstances, and this is best judged by those who are familiar with the local conditions. The appellants admitted that the onus was on them to prove such negligence, but said that the proper conclusion from the evidence as a whole was that this onus had been discharged.

(2.) Their story was that on the afternoon of Saturday, 29 October 1938, a fire broke out on the respondent's estate called Yemen. In addition to this estate, the respondent owns another property known as the Tamarin estate, between which and the Yemen estate runs the river Tamarin. Next to the Tamarin estate and on the same side of the river lies the appellants' Barachois estate, which is divided from the Tamarin estate only by a "balisage" or cutting in the trees of about 20 feet in width. Saturday's fire, the appellants say, was never put out, though its strength fluctuated. According to their account, it continued to burn all Saturday night, and, as a result of the increasing heat of the day and a high wind, flared up on Sunday the 30th, crossed the river to the Tamarin estate about 11 o'clock and spread through that estate to the balisage, which it reached about 1 P.M. There, in spite of the efforts of the appellants employees, who had been marking its progress and preparing to meet its onset, it leapt across the 20 foot gap and gained a firm footing on the appellants' property. The respondent's story was a different one. It was said on its behalf that the original fire, which broke out on Saturday, was completely extinguished late that night or early the following morning: that Sunday's fire originated not on the Yemen estate but on the appellants' property Barachois and spread thence to the Tamarin estate, but never touched the other side of the river or the Yemen estate. In this conflict of evidence, their Lordships must necessarily be guided by the views of the Court in Mauritius unless there is some strong reason to the contrary, more particularly in a case where the members of that Court are not only acquainted with the local conditions but, as they say, have visited the locus in quo. Their findings are as follows: The fire which commenced on the Saturday evening continued to burn during most of the night : Steps were taken by the defendant company to put out that fire and by 7 A. M. on Sunday morning those concerned in putting it out were satisfied that they had effectively done so and left the scene. They had done all that they had thought necessary. Nevertheless, there must have been some smouldering embers or stumps which escaped the vigilance of the men and with the increasing heat of the day these embers again got ablaze and with the increasing velocity of the wind the fire spread not only to the banks of Tamarin River but beyond. When once the fire had reached the dry bushes on the north side of the river it blazed fiercely and spread rapidly and any likelihood of its then being checked was indeed remote.

(3.) To these findings there should be joined the later passage where the learned Judges say : We are satisfied that the defendants' servants had done all that could have been reasonably expected of them in endeavouring to extinguish the first conflagration : that believing the fire had been extinguished there was no obligation on their part to leave some one on guard : and that they did not become aware of the second conflagration until after it had swept over most of the plaintiff's land.