Defendant liable for water damage under Civil Wrongs Law; Rylands rule rejected due to natural land use.

[*470] 1982 May 7

(PAPAS,D.J.)

IN THE DISTRICT COURT OF PAPHOS

ċostas K. Lemoniatis, .

Plaintiff,

v.

costas Ioannou Kayias,

Defendant.

(Action No. 537/78).

Negligence

- Damage to field from water escaping from adjoining field - Onus of proof of negligence - Section: 52 of the Civil Wrongs Law Cap. 148 - Rule in Rylands and Fletcher not applicable because defendant has not made a non-natural use of his land.

E. Korakides, for the plaintiff.

Chr. Demetriou, for the defendant.

JUDGMENT

The following judgment was delivered by:

PAPAS, D.J.: The plaintiff is

[*471]suing for damages caused to his plantation of beans in a field at Koukliawhich he at all material times to this action possessed as a tenant from the "Kouklia Collectiva" the damages, in the plaintiff's allegation, have been the result of the flooding of this field by water which had flowed therein from an adjoining field occupied by the defendant and located on a higher level than his own.

The plaintiff in his testimony before the Court stated, inter alia, that oh/or about the 10th of August 1976 he planted, beans in the aforesaid field and that on the 15th or the 16th of August 1976 he found this field flooded with water and he saw water flowing from defendant's adjoining said field into his own, the defendant's field in the plaintiff's allegation, having been planted with nuts and being watered at the time by the method of flooding (plimanta). He further stated that as a result of the flooding of his field, the beans due to the humidity were destroyed and thus did not shoot; he further stated that he gave instructions to P.W.3 to assess the damage that he has suffered and that he paid the sum of £15.- to P.W.3 for such services. He further stated that on the 15th or the 16th of August 1976 he invited the members of the Village Committee to visit the field and assess the damage. The plaintiff further stated that in order to plant his said plantation of beans he used 25 okes of beans which he bought at £0.500 mils per oke.

P.W. 2, Vladimiros Lontos, stated on oath that at all material time to this action he was a member of the Village Committee and upon the invitation of the plaintiff [*472]in August 1976, he with other members of this Committee, visited the plaintiff's said field and they found it flooded, that is, it looked like mud and that he saw water flowing into the plaintiff's said field from the said field of the defendant. Furthermore, he stated that the plaintiff's beans had not shoot. He further stated that the water must have flowed from the defendant's field because the two fields have a common boundary.

P.W. 3, Michael Tapakoudis, an agriculturist, stated to the Court that on the 22.8.76 after instructions received from the plaintiff he went to the plaintiff's said field and found the field flooded (plimasmenon) to the extent of 2/3rds, i.e. looking like a lake, the other third having absorbed the water. Moreover, he stated that he searched into the ground and he found beans having been dissolved (liomena) and that he assessed the plaintiff's damages to £157.500 mils as being the gross income which the produce of beans would have fetched. He also stated that £6.- are required for the field to be recultivated and that he was paid by the plaintiff the sum of £15.- as his remuneration for the assessment of the damage. In cross-examination this witness described how a field should be treated before one plants beans, stating, inter alia, that if the field is planted with beans without first having been tilled (kaliergithi), the produce therefore will be lessened. It is pertinent to mention at this stage that the plaintiff upon being cross-examined stated to the Court that before planting his beans, he did not till the field. The evidence of this [*473] witness, i.e. P.W.3,.does not disclose whether the assessment of the damages that he made was on the assumption that the plaintiff's filed has not been tilled before planting the beans. This witness stated that he made his assessment on the basis of average weather conditions. He further stated that the plaintiff was unable to cultivate the said field with any other kind of plants because September was coming and the plaintiff should cultivate it with peas later on.

The defendant in his defence stated upon oath that he did not know what the plaintiff planted in the said field; he stated, however, that his field was about 2-3 ft. higher than the plaintiff's and that at all material times to this' action he had planted in his field nuts which he watered from a system which he described to the Court and for this purpose he paid one named Panayiotis Michael of Kouklia who gave evidence on his behalf as D.W.2. This witness expressed complete ignorance of the plaintiff's complaint and he futher stated that the water could not flow from his field into the plaintiff's field, because of an "ohtos" between the two properties and a ditch around his field; had his field, as he alleged, been flooded with water, the extra water would have escaped through another channel. Upon cross-examination this witness admitted that his field has been planted with nuts and that he first watered his field on the 4.8.76 and that the next time he watered the field . was on the 25.8.76.

D.W. 2 Panayiotis Michael, stated on oath that he [*474]was the person who was paid by the defendant in order to water the said defendant's field which was planted with nuts and that the last time he watered the said field was on the 24th or the 25th of August 1976. He further stated that he is 73 years old and that the previous watering of the field took place at the beginning of August of 1976. He expressed complete ignorance as to what the plaintiff planted: in his fielf and he denied that water left defendant's field and flowed: into the plaintiff's field. He further stated that after a few days, he heard of the plaintiff's complaint. Upon' cross-examination he stated to the Court that he remembers that the last watering he carried out was on the 24th or 25th of August 1976.

The burden is cast on the plaintiff to establish his claim and in a civil action, such as the present, this burden could be discharged if I was satisfied on the basis of the plans and probabilities that the claim of the plaintiff was well founded. (See Savvides v. Georghiou, (1975) 1 C.L.R., p.140 at p. 143).

I have considered the whole evidence before the Court and I have watched very closely the demeanour of the witnesses in the witness box including the parties to this action. I must say from the start that the plaintiff impressed me favourably as a truthful witness and I accept his evidence. I also accept the evidence of P.W.2 as truthful. As to the evidence of P.W.3, Michael Tapakoudis relating to the plaintiff's damages, I wish to say from the start that I am not prepared to act upon this witness's [*475]assessment of the damage caused to the plaintiff for the reason that it is not before the Court whether his assessment of the damages was made on the basis that the plaintiff's field has not been tilled before planting the beans. This witness upon cross-examination stated in very clear terms that when a field is not tilled before planting beans, the produce is diminished and the plaintiff stated' in his evidence in this connection that before planting his beans he did not till the field. I therefore reject the assessment of the damages made by this witness. However, I accept the rest of the evidence of this witness as truthful.

On the other hand, the defendant and his witness made the worst impression upon me and I reject their testimony in toto. The defendant on cross-examination stated that he watered his field on the 4.8.76 and on the 25.8.76 insisting that on the

22.8.76 (i.e. the date that P.W.3 visited the field of the plaintiff to make his assessment of the damages,),, his field was not watered. I am indeed unable to comprehend, in the absence of any explanation, how the defendant could have been in a position to remember the aforesaid dates after the lapse of more than five years since the time of the alleged wrong. The same holds true as regards the D.W.2's persistance that the last watering of the defendant's field took place on the 24th or the 25th August 1976 and that the previous watering took place at the beginning of August of the same year.

From the totality of the evidence which I have [*476]accepted, I find that the said field planted with beans in possession by the plaintiff was flooded as a result of water which flowed into this field from an adjoining field occupied by the defendant. I further find that as a result of the flooding of the plaintiff's field, the beans planted in the ground were destroyed. I also find that the plaintiff planted 25 okes of beans in the said field which he bought at £0.500 mils per oke and that he paid to P.W.3 the sum of £15.- for the latter's services as an agriculturist.

I will now consider the law in relation to the issues arising out of this factual situation. The relevant provision is s.52 of Cap. I48 which reads as follows:

" In any action brought in respect of any damage in which it is proved -

"(a) that such damage was caused by any dangerous thing other than fire or an animal, or by the escape of anything which if it escapes is liable to cause damage, and

(b) that the defendant was the owner of or the person in charge of such thing or the occupier of the property from which such thing escaped, the onus shall be upon the defendant to show that there was no negligence for which he is liable in connection with such dangerous thing or the escape of such thing."

The aforesaid provision of the Civil Wrongs Law [*477]shifts the onus upon the defendant to show that there is no negligence for which he is liable in connection with the escape of the water from the defendant's field, into the plaintiff's field.

I find in my judgment that the defendant failed to discharge this onus of proof, for, the defence's evidence which I have rejected in toto, denies that water flowed from the defendant's field, into the plaintiff's field and thus the defendant failed to prove that he was not negligent at the particular time when the water flowed into the plaintiff's field from his field.

Counsel for the plaintiff in his final address to the Court submitted that the defendant is liable to the plaintiff for the damage caused also on the ground of the Common Law Rule of the Rylands & Fletcher.

In the Rylands & Fletcher, Blackburn J., said:

"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in his peril, and, if he does not do, so, is prima facie answerable for all the damage which is the natural consequence of its escape."

Lord Cairns in the House of Lords concurred in this judgment but restricted the Rule to circumstances where the defendant had made a non-natural use of the land. [*478]Lord Porter said in the same:- case:-

"Each case seems to be a question of fact subject to a ruling of the judge as to whether. ..... the particular use can be non-natural, and in deciding this question I think that all the circumstances of the time and place and produce of mankind must be taken into consideration so that what might be regarded as … non-natural may vary according to those circumstances".

Having in mind the evidence before me, I am of the opinion that the defendant did not at the time make a non-natural use of his field and in my judgment the principle in Rylands & Fletcher is not applicable in this case. However, in my judgment in the light of my findings, the defendant is liable to the plaintiff in damages by virtue of B. 53 of the Civil Wrongs Law.

As to the question of damages that the plaintiff is entitled to receive from the defendant, those should be in my opinion limited, having rejected the assessment made by P.W.3, to the price of the 25 okes of beans at £0.500 mils per oke which the plaintiff planted in the said field and to another £15.- which the plaintiff paid to P.W. 3 for his services as an assessor. It was reasonable under the circumstances for the plaintiff to engage P.W.3 as an expert to make an assessment of the damages caused to him. I do not intend to act upon the assessment of P.W.3 as to [*479]the plaintiff's damages, for the reasons I have referred to previously in this judgment

In the result, I give judgment in favour of plaintiff for the sum of £27.50.0 mils with costs, to be assessed by the Registrar on the scale of £100.- £200.-

Judgment in favour of plaintiff

for £27.500 mils with costs.-