(COURT OF APPEAL)

HASSAN ABU MIREIN vs. MUKHTAR NUREIN

AC-Revision-248.-58

Revision

Principles

  Tort—Nuisance—Excavations—Right to support—Strict liability—Damages—Vicarious liability—Liability for tort of independent contractor

  Damages—Duty of plaintiff to mitigate damages

(i) An action lies in nuisance for injury to adjoining buildings caused by      excavations on the land of the defendant.
Hamza Ali Kameir vs. Mohammed Hassan El Shawahli (1956) S.L.J.R. 74 approved.
(ii) An employer is liable for the tort of his independent contractor when the injury arises from the doing of the very thing which he has delegated to the independent contractor.
Dalton vs. Angus (1861) 6 App.Cas. 740 and Bower vs. Peate (1876) 1
Q.B.D. 321 followed.

(i) An action lies in nuisance for injury to adjoining buildings caused by      excavations on the land of the defendant.
Hamza Ali Kameir vs. Mohammed Hassan El Shawahli (1956) S.L.J.R. 74 approved.
(ii) An employer is liable for the tort of his independent contractor when the injury arises from the doing of the very thing which he has delegated to the independent contractor.
Dalton vs. Angus (1861) 6 App.Cas. 740 and Bower vs. Peate (1876) 1
Q.B.D. 321 followed.

Judgment

Advocates: Henry Riad …………………………… for applicant

                   Siddik Ahmed Kheir …………………..for respondent

      2 1st April M. A. Abu Rannat C.J.: —This is an application for revision against the decision of the Judge of the High Court, Khartoum, in his Rev. No. 400/1958 dated 16th December 1958 dismissing summarily an application against the decree of the District Judge, Khartoum, dated 10th September 1958 awarding the plaintiff (respondent) £S.188 damages and £S.28.950m/ms costs.

     The applicant, who was the defendant in the District Court, is represented by Advocate Henry Riad, and the respondent is represented by Advocate Siddik Ahmed Kheir.

    The facts of this case are quite simple and I shall set them out here: — The plaintiff was occupying Shop No. 46 Block 20 inOmdurman Market, which is adjoining the defendant’s shop. On 30th January 1958 the defendant made an agreement with an independent contractor to pull down and rebuild six shops, one of which was adjoining the shop occupied by the plaintiff. While the contractor was digging the foundation of the adjoining shop, the partition wall of the shop occupied by the plaintiff fell down and the plaintiff was compelled to remove his goods from the shop. The plaintiff claimed that some of his goods were damaged, and claimed the value of the damaged goods and loss of profits during the period he was unable to occupy his shop.                                                                                                                                  

      The defendant denied liability on the ground that he delegated the work to an independent contractor, who was fit and qualified for the performance of such work, and that proper instructions were given to him to avoid the dangers incidental to the work. The defendant refers to the passage contained in the contract between him and the independent con tractor which reads: “I [the contractor] shall be fully responsible for any damage that may be caused to the buildings of neighbours”.                                       

      I think it has been settled law that the occupier of property cannot escape liability by the mere employment of another:

(a) when the work he imposes on another is illegal,

(b) when the injury arises from doing the very thing which he has delegated,

(c) when the thing to be done arises out of a statutory duty or public authority,

(d) when the thing to be done is necessarily dangerous.

    It appears to me that condition (b) above applies to the facts of this case, and in support of this view, I refer to a passage in the judgment of Lord Blackburn in Dalton vs. Angus (1881) 6 App.Cas. 740. He said at page 829:—

                                                                              
“a person causing something to be done, the doing of which casts upon him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed, by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it”.                                                                                                                                              

      The leading authority for the liability of an employer who employs an independent contractor who interferes with support accorded to land or buildings is Bower vs. Peate (1876) 1 Q.B.D. 321. In that case the defendant employed a contractor to pull down his house, and in the course of the operations, damage was caused to the plaintiff’s house owing to the inadequacy of the temporary support. Cockburn C.J. at page 326 said: —

    “The answer to the defendant’s contention may, however, as it appears to us, be placed on a broader ground, namely, that a man who orders a work to be executed, from which in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else—whether it be the contractor to do the work from which this danger arises, or some independent person—to do what is necessary to prevent the act he has ordered from becoming wrongful”.                                                                           

     In our view the defendant is liable for the damage caused to the plaintiff’s property, and he cannot escape liability by delegating the work to an independent contractor. We also approve of the principle contained in Hamza Au Kameir vs. Mohammed Hassan El Shawahli which is reported on p. 74 of the Sudan Law Journal and Reports (I956).1                                                                                                                                          

    The next point at issue is the quantum of damages. The District Judge awarded the plaintiff:                                                                                                               

£S. 30.000m/ms Value of damaged goods.                                                                  

£S. 20.000m/ms for damaged shelves.                                                             

£S.120.000m/ms Loss of profits calculated at £S.2 per day for 60 days.                      

£S. 18.000m/ms Loss of profits of a sewing machine.                                       

      In the first place, no reliable evidence was produced that any goods were damaged, and if so neither their description nor their quantity was given by the plaintiff. We cannot in the circumstances allow this head of                                                        

1   “When buildings are injured by subsidence in the soil underneath, caused by the actions of the occupier in adjoining land, he is held liable for the injury. Thus the case coming under the tort of nuisance, liability exists irrespective of negligence or                  motive.” Per Osman El Tayeb P.J. (1956) S.L.J.R. 74, 75.                                                                                                                                                                                                                               

damages. For the “takhsheeba” I think the evidence produced by plaintiff’s witnesses is reasonable and £S.20 may be allowed for it.                                                  

       As to loss of profits, we think that there is no justification for paying the plaintiff for sixty days. The plaintiff is bound to mitigate the damages, and he stated in his own words, that the falling wall could have been rebuilt in fifteen days. He may therefore be given £S.30 for fifteen days at a daily profit of £S.2.000m/ms. As to the sewing machine, no evidence was led by the plaintiff to prove any loss in respect of the work of a sewing machine and we feel that we cannot allow him any amount for this head of claim.                                                                                                               

The plaintiff is therefore allowed a total amount of £S.50 and costs taxed as follows: —                                                                                                                                    

                  £S.2.030m/ms Court fee.                                                   

                  £S.2.750m/mS Advocate costs.                                         

                   --------------------    

                       £S.4. 780m/ms 

    The parties bear their own costs in the High Court and also in this Court

M. I. El Nur J.: —I concur.

                                                                                              (Order varied)