It was submitted, although it formed no ground of appeal, that the award of "general" damages was wrong.

Regarding the complaint about special damages, I think that if the trial magistrate was right in finding that negligence had been established and that the plaintiff was entitled to compensation for the damage to his articles of trade there was sufficient evidence of the value of what damage to support the award of what was called special damages. This might be an appropriate place to deal with the award of "general" damages. For this award, I can find no lawful warrant. The defendants can only be liable for the damage caused by their acts. Indeed, there is no liability in negligence in the absence of damage: see Overseas Tankship (U.K.) Limited v. Morts Dock Engineering Co., Limited (The Wagon Mound) 1961 A.C.388, 425.

If by the payment to him of "special" damages the plaintiff is fully compensated for his articles of trade lost as a foreseeable result of the defendants' tortuous acts, the basis of an additional award of general damages is difficult to understand.

Turning to the liability of the defendants, I set out the relevant portion of the magistrate's judgment:-

"I hold therefore that the 2nd defendant is the servant of the 1st defendant and that he cut the branches of tree during May 1962 on the instruction of his master, the 1st defendant and the branches in truth and in fact fell on the roof of the plaintiff's store and caused the damages complained of by the plaintiff and for which this action was instituted."

The first point of note is that nowhere in the evidence of all the witnesses was it suggested that it was the first defendant who instructed the second defendant to cut down the branches. Indeed in his evidence the plaintiff said, "I further told him (the 2nd defendant that he should tell his master on his return to mend my store. 'This evidence suggests that the "master" was not present when the branches were cut down, and appears to contradict an earlier piece of evidence of the same witness to the effect that he saw the "2 defendants" at 10:00 am on 19th May, 1962. I suspect that there is a typing error in the record and that "2 defendants" should read "2nd defendant." The rest of the sentence in that portion of the plaintiff's evidence strengthens this suspicion.

There is no evidence of the nature of the duties of the second defendant, assuming he was a servant of the first, and it is impossible to say whether he was acting in the course of his employment in trimming the branches of the tree, or whether he was acting for the best, on his own, but quite outside the scope of his employment.

The onus of proving facts which would establish the vicarious liability of the first defendant was on the plaintiff and there is, on the record, no evidence whatever of these facts. Except for the bare assertion that the second defendant was a servant of the first, nothing was said to link the first defendant with the acts of the second which caused damage to the plaintiff. No one said what kind of servant he was. Was he, for instance, a driver? Was he a domestic servant? Was he a gardener? The term servant is extensive in its connotation and covers a wide variety of employees with different duties. Nothing whatever is known of the second defendant's duties.

I find no material on the record to support the finding that the first defendant was liable for the negligence of the second in this case.

On the issue of the extent of liability, two matters are to be noted. The plaintiff claimed that four sheets of asbestos were broken but in his evidence he swore that only two sheets were broken. The sheets were broken on the 19th of May, and the damage could have been put right and further damage averted if two sheets of asbestos had been bought. The plaintiff in his evidence said:-

"We then all left the police station and went home together the three men asked the 1st defendant to run to Jankara to buy two Asbestos to replace the broken ones as that time was the rainy season. The 1st defendant did not act on the advice until 21-5-62 when there was a heavy rain."

The plaintiff knew it as rainy season and there was a duty on him to minimise the damage. No reason was offered why he did not himself procure two sheets of asbestos to replace those broken. It was his failure to minimise his damage which led to the further damage caused by rain water getting into his store and destroying his articles of trade. For this further damage, the defendants are not liable, since any damage which must be ascribed to the plaintiff's failure to minimise his damage cannot be recovered from the defendants: see British Westinghouse Co. Limited v. Under ground Railways Limited (1912) A.C. 673 and Macrae v. H.G. Swindells (1954) 1 W.L.R. 597.

I think that the appeal of the defendants must be allowed. The judgment of the magistrate is set aside and in place of it there will be judgment for the plaintiff against the second defendant for £1-10s.

The first appellant will have the costs of this appeal assessed at £17-17s and of the trial in the magistrates' court assessed at £5-5s.

No order is made as to the costs of the second appellant here or below.

Appeal allowed: Judgment of trail Court set aside and judgment for the plaintiff against the second defendant for £1-10s substituted.