Facts : The defendant is the proprietor of a poster exhibition enterprise. It is a one storied building on the roadside. On the roof the building there stands a more or less permanent sky sign which is firmly held in place by the means of strong iron attachments. There is iron sheeting on the mentioned framework. The proprietor has positioned the framework facing towards the street which the intention of displaying advertising designs. The has received a license from the municipality of Calcutta to erect this particular sky sign. The defendant used to paste paper posters on the iron sheeting , which was frequently done and to be noted it never caused any kind of problem.
But the defendant wanted some change in his way of displaying the posters. So, instead of pasting posters on the iron sheeting the defendant started displaying using a wooden frame banner without actually securing it by proper means. There were no means by which the banner could have been firmly secured; there were no bolts, screws, grooves, etc. The wooden banner was held against the galvanized sheets by the means of cheap coir ropes which were fastened along to all or any of the four corners of the wooden frame which contained the cloth design, these ropes were then carried over and under the metal framework of the sky sign, and knotted to certain angles and iron rods behind. The lower portion of the wooden did not rest on the ground. There was this very narrow space which was intervened between the metal setup and the edge of the roof of the building. The metal sky sign was quite a firm setup and there was nothing to intercept or anything which could make it fall.
On 5 july 1943, the wooden framed banner fell on the, plaintiff, who was passing by the defendant’s building along the public pavement. Unfortunately, the wooden banner struck the plaintiff on the head due to which he sustained a cut. The plaintiff was admitted to a hospital where his treatment took place. According to the medical evidence provided the injury suffered by the plaintiff was severe. The cut was deep and it bled profusely for several hours after which he suffered a brain hemorrhage. It took the plaintiff about five weeks to recover and to get back to his routine life.
- If the defendant owed some responsibility to the complainant who was a passerby i.e. whether the maxim res ipsa loquitur applies to the given facts?
- Were the weather disturbances of the 5th of July 1943 were a serious storm at all?
Professor Winfield described the act of god as the action of natural forces so unforeseen that no one human foresight or ability could reasonably be expected to predict it.
In reference to the first ingredient no doubt the defendant owed a duty to the plaintiff a passerby. With consideration to the second ingredient the maxim res ipsa loquitur definitely applies to the facts relating to the occurrence in the given case and thus casting the burden of proof of due care on the defendant. The evidences presented by the defendant regarding the precautions taken were materially untrue. Thus, the evidences to rebut the presumption of negligence became insufficient. An important fact which is to be noted in this case is that the velocity of the wind was 27 miles per hour when the wooden banner struck the plaintiff in the head. The velocity of the wind itself shows that the defendant was guilty of negligence and was therefore, liable for the damges. The defendant claimed that the unusual that day which was again not true as such storms were a normal weather condition in Calcutta.
It was held that there was negligence on the part of the defendant’s servant and also proper was not taken by him to secure the banner so as to prevent it from being blown away into the street by the storm. The plea of ‘act of God’ is not acceptable as the severity of the storm was not so unusual. The Chief observer in the Weather Office of the Meteorological Department, who is an expert, testified that on the day of happening there was not so intensified raining and the velocity of the wind was 27 miles per hour, it was concluded that the defendant’s prima facie was negligent.
Thus, the judgement must be ordered in favor of the victim i.e. the plaintiff.