(COURT OF APPEAL)*

NICOLAS GINNIS v. SUDAN GOVERNMENT

AC-APP-8-1964

 Principles

·  Damages—Remoteness of damages—Damages as a result of passing a new law is not reasonably foreseeable

Due to the negligence of port officials at Port Sudan, the goods of the applicant were delayed at the port. During such delay a new law has been passed increasing the customs duties. Accordingly applicant paid more money than he ought to have paid if he had received the goods without delay. Applicant brought this action claiming damages on the ground of negligence of the port officials. Province Judge dismissed the claim on the ground that the officials were not liable because their liability is limited to damages caused by their wilful misconduct within the scope of their duties.
Held: Damages sought to be recovered by applicant are too remote, because the passing of the new law increasing the customs duties was not reasonably fore seeable by the port authorities, therefore the claim is dismissed.

Judgment

Advocates: Salah Marhoum                                         for applicant

Bakri Sir El Khatim for Attorney-General                      for respondent

Mohamed El Amiri S. Gassouma 1. June 7, 1966: —This is an appeal against the decree and judgment of His Honour the Province Judge, Port Sudan, in CS-14

Appellant was the consignee, of three lorries, which arrived at Port Sudan quays, on April 27, 1958, aboard a ship called City of Johanesburge. Two days later another ship, called Ingrid Breden, arrived at the quays and its goods were off-loaded alongside with the goods of the former ship. While the port officials were preparing their turnout receipts, they enlisted the three lorries with the goods off-loaded from Ingrid Breden by mistake. As a result of this mistake the appellant could only take delivery of the lorries on May 29. 1958. On this date a new law increasing the custom duties came into force and appellant accordingly paid the sum of £S.99o.ooom/ms. in excess of what he ought to have paid if he had received the goods beforoe that date.

Appellant accordingly raised a case in the Province Court at Port Sudan for the sum paid in excess, but His Honour the Province Judge, dismissed his case on the ground that the liability of the port authority is limited to loss or damage caused by the wilful misconduct of its employees acting within the scope of their duty. (Port Sudan Harbour (General Regulations, S. 39.)

From this decision the appellant is now appealing to this court. Before this court appellant is represented by Advocate Salah Marhoum while respondcnt is represented by Sayed Bakri Sir El Khatim for Attorney- General.

Appellant’s advocate contended that respondents admitted the negli gence when giving on May 15, 1958, wrong advice under the Port Sudan Harbour (General) Regulations. s. 52 that the lorries arrived aboard a different ship: and that this mistake was registered on the records of respondents. It is true that respondents are under no duty to issue such advice under the Port Sudan Harbour (General) Regulations, s.51, but once they is a such advice it should be correct and it should be correctly entered in the books. Thus respondents are liable under the general law of negligence as they were under a duty to give appeilant accurate and correct information and keep a proper register and that it is not necessary that there should be physical injury to property as decided by His Honour the Province Judge (Mavne & McGregor, Damages (12th ed. 1961), p. 68.

Respondent’s advocate in reply argued that the English law is not appi to this case as by our Sudan Statute Law and the Port Sudan Harbour (General) Regulations, s. x. the respondents are relieved from liability for any loss or damage incurred by an person n consequence of any delay in clearing any goods consigned to him and that respondents are under no duty to issue any advice in respect of any goods in hand. He added that on the assumption that respondents are held liable under the general law of negligence, the damage was too remote as the test is now the foreseealbility of the damage. He cited the following cases and authnrities:

1.Cullerne v. The London and Suburan General Permanent Building Soc. (1890) 25 Q.B.D.485.

2. Lord and anather v. pacific Co.Ltd. The Oropeas [1943] 1 All E.R

3. Mayne & McGregor, Damages (12th ed., 1961), p. 68.

4. Winfield, Tort (7th ed., 1963). Pp. 247 and 248.

In my view, this appeal should be dismissed, as the general rule is to limit recovery in the toft of negligence to foreseeable damage.

In this case it cannot be supposed that the passing of a new law increasing the custom duties was reasonably foreseeable to the port authorities when they negligently delayed the cl of the lorries.

‘However, in view of the Judicial Committee’s decision in The Wagon Mound limiting recovery in the tort of negligence of foreseeable damage, it would now seem to he necessary in negligence cases to adopt a rationale which will bring the cases as far as possible within the reason able foreseeability test.” Mayne & McGregor, Damages (12th ed., 1961), p. 68.

This decision was upheld in a very recent case in which it was decided that though the act of defendants was a negligent one, yet, they were not liable for the damage resulting from the act because it was not damage of such a kind as could reasonably have been foreseen.

Doughty v. Turner Manufacturing Co. Ltd. [1964] 2 W.L.R. 240.

In my judgment, I therefore, dismiss the appeal with costs.

Babiker Awadaila C.J. June 7. 1966: —-I concur. I have nothing use ful to add to the judgment of His Honour Gassouma P.J. I think that appellant’s claim is bound to fail whether the defence relies on the pro visions of the regulations or the general principles of liability in tort. Assuming for the sake of argument that appellant has a cause of action then no doubt the damage sought to be recovered is too remote. Damage due to a change in the law does not arise directly as a result of the negIig act and has no causal connection with it.

El Rayah El Amin I. June 7, 1966: —I agree, I have nothing more to add.