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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

3RD NOVICE MOOT COURT COMPETITION, 2015-2016

BEFORE

THE HONOURABLE SUPREME COURT OF INDIA, NEWDELHI

(UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION)

Kalyan $ Anr ………………………………………………………. APPLICANT


Vs.

Mr Pavan……………………………………………………………- RESPONDENTS

ON SUBMISSION TO THE “ HONOURABLE SUPREME COURT OF INDIA”

MATTERS CONCERNING “ TORT LAW DISPUTES”

MEMORANDUM ON BEHALF OF THE APPLICANT


3rdINTRA UNIVERSITY MOOT COURT COMPETITION 2015

TABLE OF CONTENTS

1. Index of Authorities

i. Table of Cases

ii. Books and Articles

iii. Statues and Internet links

iv. List of Abbreviation

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of Issues

5. Summary of Arguments

6. Arguments Advanced

7. Prayer

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Table of Cases

 Rylands v. Fletcher , (1868) L.R 3 H.L. 330.

 Crowhurst v. Amersham Burial Board , (1878) 4 Ex. D. 5;

 Home and Colonial stores Ltd .,( 1936) All . E.R. 200

 Miller v. Addie & Sons Collieries , 1934 S.C. 150.

 Hoare & co. v. Mc Alpine , (1893) 1 Ch 167 .

 Fletcher v. Rylands , (1866) L.R. 1 Ex. 265

 Read v. Lyons & co

 Shiffman v. Graud Priory , etc .,( 1936) 1 A

 Ponting v. Noakes , (1894) 2 Q.B . 281.

 T.C Balakrishnan v. T .R Subramaniam , A.I.R. 1968 Kerala 151;

 West v. Bristol Tramways co ., (1908) 2 K .B. 14

 Firth v. Bowling Iron co., (1878) C.P.D 254.

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Books and Articles

 Ratanlal & Dhirajlal , The Law Of Torts , Twenty Sixth Edition, LexisNexis
, A Division of Reed Elsevier India pvt Ltd

 Dr. R.K. Bangia , Law of Torts, Twenty Third Edition , 2010, Allahabad law
Agency , Mathura Road , Faridabad (Haryana)

 P.M. Bakshi , The Constitution Of India , twelth edition, universal Law


publishing co. Pvt. Ltd. 2013, New Delhi,

Statutes and Internet Links

 STATUTES :
 Constitution of India
 Pesticides Act 1968

 INTERNET LINKS :
 http://www.manupatrafast.in/pers/Personalized.aspx
 http://login.westlawindia.com/maf/wlin/ext/app/tocectory?stnew=true&sttype=std
template&sp=inapu-1
 www.wikipedia.org
 www.indiankanoon.org

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LIST OF ABBREVIATIONS

& And
AIR : All India Reporter
All. ER ; All England Law Report
Anr Another
Art Article
Ch Chapter
CO. Company
D.S Defendant
ER England Reporter
Etc : Et Cetera
EWHC England and Wales High Court
H.L House of Lords
Hon’ble Honorable
INC. Incorporation
K.B King Bench
L.R Law Report
PVT. Private
Q.B Queen Bench
SC Supreme Court
SCC Supreme Court Cases
UKHL United Kingdom House of Lords
Vs. Versus

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STATEMENT OF JURISDICTION

The appellant Kalyan&Anr humbly submits for the Jurisdiction in “Honourable Supreme
Court of India” under article 136 of constitution of India.

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STATEMENT OF FACTS

Factual background

1. Mr. Pavan is software engineer working at M/s Satyam in Vishakhapatnam. He


resides in the posh locality of MVP colony. His neighbour is Mr. Kalyan, a
businessman, there houses are adjacent to each other and their gardens are separated
by a wooden fence.

2. Mr. Pavan has a hobby of raising different types of flowering plants in his garden and
had a heart shaped flower bed adjacent to the wooden fence, on the other hand
Mr. Kalyan was fond of growing vegetables which lay alongside the fence.

3. In the rainy season a lot of weeds started growing in and around the flower bed, to
get rid of them Mr. Pavan purchased a powerful weed killer called ‘Slaughter’. Since
it was a poisonous substance there were express warnings on the canister which stated
that ‘Slaughter’ was poisonous to humans and also clearly stated “Wash hands
thoroughly after use”.

4. Mr. Pavan sprayed ‘Slaughter’ liberally on his flower beds. However, later that day,
rain washed some of the weed killer under the fence onto Kalyans’ vegetable patch
which currently consisted of a patch of lettuce. There were no visible signs of damage
to the crop and they were eventually consumed by the Kalyan Family.

5. The following day Mr. Kalyan’s six year-old son, Akira Anand, began to complain of
stomach pains and was later admitted into the hospital due to his deteriorating
condition. The medical evidence conclusively traced the cause of the illness to the
weed killer.

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STATEMENT OF ISSUES

The issues raised are as follows:


1).Whether the use of the weed killer was a non-natural use of Mr. Pavans’ land?

2) Whether the rule in Ryland’s vs. Fletcher could be used to obtain personal injury?

2.1) Whether Mr. Pavan was negligent or not?

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SUMMARY OF ARGUMENTS

1 Whether the use of the weed killer was a non-natural use of Mr. Pavans’ land?

The counsel humbly submits that, the use of weed killer in garden by Mr. Pavan ,was non
natural use of land because , he liberally sprayed weed killer named ‘Slaughter’ for removal
of small amount of weeds around a flower bed ,which he could have removed by other
process and used a powerful weed killer .

2)Whether the rule in Rylands vs Fletcher could be used to obtain damages for personal
injury?

The counsel humbly submits that ,there was escape of dangerous thing which is the
powerful weed killer ‘Slaughter’, and escape resulted in illness of the son of Mr. Kalyan ,
Akira Anand, which is quite evident in the medical certificate that the stomach pain of the six
year old boy was due to eating those vegetables which were affected by the weed killer which
had escaped with the rainy water,and has caused personal injury,so personal injury can be
claimed.

2.1)Whether the the respondent was negligent or not?

The counsel humbly submits that ,respondent was aware of the fact that it was rainy season
and the rain water can wash away the weed killer and can affect his neighbours ,instead of
knowing the fact he had sprayed a powerful weed killer Slaughter liberally on the flower beds
so, there was negligence on the part of respondent and personal injury can be claimed here
through.

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ARGUMENTS ADVANCED

1.Whether the use of the weed killer was a non-natural use of Mr. Pavans’ land?

It is humbly submitted that in the present case there is non natural use of land in the
landmark case of Rickards v. Lothian1 LORD MOULTAN stated that “non-natural use”
must be some special use bringing with it into play increased damage to others and must not
be merely the ordinary use of land. It was also stated that the concept of non-natural use is
flexible. A particular use which was non-natural a centaury back may be deemed as natural in
present scenario. In the impugned case it is common prudence that if in a flower garden
weeds start growing any rational man would never use a powerful weed killer to remove
weeds which could be easily removed by other techniques/which were not dangerous and
amounted to non natural use of land.

1.1 INGREDIENTS FOR BEING A NON NATURAL USE


As derived from the statement given in the case of Rickards v .Lothian2 for any act or
usage that was done on the land and is to be proved “non-natural” use of land the
following factors must be considered
(a) Special use

In impugned case there is special use of land as Mr. Pavan has Sprayed a highly
poisonous weed killer which was very powerful and using weed killer in a garden ,becaus
it was no way of public use ,he had sprayed the weed killer for his own use ,and it is
special use of land , as the term “Special use” in itself is an ambiguous term. Its meaning
depends on the facts and the situation of the case. In case of Rickards v. Lothian3 the
facts were that the owner of the building was sued because some third-party wrongfully
blocked all sinks and turned on all taps in the floor above defendant’s floor. For this the
defendant sued the owner. As the judgment of case came it was stated that not every
object that was not “naturally” there comes under the rule of Rylands v. Fletcher.4 It was
held in the case that it was reasonable to have proper water supply at various parts of
house thus it amounts to non special use of land . In the impugned case the use of weed

1
(1913) AC 263:108 LT 225 : 29 TLR 281 (PC)
2
Ibid
3
Ibid
4
(1868) L.R. 3 H.L. 330.

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killer which is highly poisonous and powerful weed in a garden amounts to special use of
land.

(b) Extra ordinary use of land

“Ordinary use” or “normal use” is also an ambiguous term which derives its meaning
from circumstances. Basically “normal use” in context with land is any act that a rational
man would do in order to enjoy his land. The proper maintenance of one’s garden also
comes under the same but maintenance does not mean we can bring on dangerous thing to
our garden and that dangerous thing can cause harm if escaped. Thus the defendant in
present case must be held liable on the ground of “non-natural” use of land, as he has
brought the dangerous substance to his land and Mr. Pavan has used the land extra
ordinarily by using powerful weed killer named ‘Slaughter’ on his land because weeds
could be removed by other techniques but he switched to spraying of poisonous weed
killer liberally on his land on his land which amounts to the extra ordinary use of land.

1..2. Judgements Regarding Non Natural Use of Land

a). In the House of Lords ,Lord Cairns Laski LC, laid down the requirement that there must be non
natural use of land. In Mason vs. Levy Auto Parts Ltd 5.The DS stored flammable material on
their land. It ignited the fire spread to neighbouring property. The DS were held liable as the
storage of inflammable material was non natural use of land. Here Mr. Pavan has sprayed a
poisonous weed killer which is very powerful and can cause damages if it escapes ,and Mr.
Pavan has brought a dangerous thing which is the powerful weed killer and has caused harm
to Akira Anand son of Mr. Kalyan .

b) In the case of Crowhurt vs. Amersham Burail Board, the defendent has grown a poisonous
tree and the branch escaped from the land and the horse plaintiff died after eating the leaves
of those poisonous trees ,the plaintiff filed a suit against the defendant and it was held that
,growing poisonous tree was non natural use of land and escape of which caused harm to the
other person.In impugned case the respondent has sprayed the poisonous weed killer just

3. Langan v. Valicopters, Inc., (Wash. 1977).


4 Bella v. Aurora Air, (Or. 1977).
5.Crowhurt vs. Emerson Burriel Board All ER (1878)

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like the above case ,in which defendant has grown poisonous tree, and that poisonous tree has
caused harm to the horse of plaintiff, here harm has been caused to thwe son of Mr. Kallyan.

Mr. Pavan has brought a dangerous thing which is the weed killer which is poisonous in
nature ,as it is mentioned in the fact that it was a powerful weed killer named ‘Slaughter’,
and there was a warning on the canister that “ wash hands properly after use” which imply
that weed killer was highly poisonous in nature and if hand was not to be cleaned properly
then it was going to cause harm to any person .It was most likely that the person could die if
unwashed hand come in contact of the mouth ,which show the gravity of dangerous
substance used in the land .

1.3

c) Courts in Oregon, Oklahoma, Louisiana, and Washington6 have concluded that strict
liability concepts may apply to aerial application of pesticides as an “inherently” or
“abnormally”
dangerous activity. Courts in Oregon and Washington have employed the most thorough
analysis. The court did, however, examine the concept of “abnormally dangerous,”
which can be found “when the harm threatened by the activity is very serious even
with a low probability of its occurrence .” Even when the risk is only moderate, if the
activity can be carried on “only with a substantially uncontrollable likelihood that the damage
will sometimes occur,” the activity may be “abnormally dangerous.”

The Washington Supreme Court also addressed the question in Langan v.


Valicopters, Inc.7 The Langan court closely analyzed the six factors of the
Restatement and concluded aerial application was “non natural use of land”,It
recognized the prevalence of crop dusting in the area where the application
occurred. It specifically found crop dusting was “not a matter of common usage”
because it was carried on by a comparatively small number of persons. This
conclusion has been questioned as “remarkable” with the suggestion . “The court found
strict liability despite the common sense intuition that spraying of pesticide was coomon in
valley which was quite prevalent”.

For example, an Oregon court applied strict liability to pesticide drift in the 1961
case of Loe v. Lenhardt8. In 1977, the court reaffirmed this position in Bella v.
Aurora Air, Inc.3 Without using the full six-factor analysis of the Restatement
“abnormally dangerous” formulation, the court analyzed the question of liability.
The case involved the spraying of 2,4-D in the vicinity of broad-leafed crops.
Given legislation regulating the aerial application of the pesticide, the court required
no proof to decide the activity was “abnormally dangerous” when damage from use of
pesticide was evident there.

6
Drake law Journal
7
.ibd
8
ibd

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Another decision in pesticide cases is that of the Arkansas. Appellate Court of Appeals in J.L. Wilson
Farms, Inc. v. Wallace125 in which the court found spraying of 2,4-D in rice fields near the plaintiff’s
cotton involved risk of serious harm, regardless of care, in which defendants were held liable

Here in different cases it is quite evident that the judgement was given on the basis of
Reylands vs. Fletcher and the defendants are liable if they have sprayed pesticide in their
farmland ,the use of pesticide in this cases are held when all the elements of strict liability has
been followed so, use of weed killer in the garden was non natural use of land. Thus the
respondent here will be liable as there was non natural use of land and has used a dangerous
thing on his land which escaped with the rain water clearly proves that he was using his land
non naturally .

2.Whether here strict liability is applicable or not?

According to BLACKBURN, J., strict liability9 is “The rule of law is that the person who for
his own purpose ,brings on his land and collects and keeps any thing on his land likely to do
mischief if it escapes ,must keep it in at his peril ;if he does not do so is prima facie
answerable for all the damages which is the natural consequence of escape.

The basic requirement of strict liability10 are :

A) As stated by BLACKBURN11, .J, there must be dangerous thing, It is quite evident in the
fact that the weed killer was dangerous as weed killer is a poisonous in nature and the weed
killer used by respondent here was powerful and express warning was there that “wash hands
properly after use” which is enough to prove that the weed killer used was very poisonous
and was a dangerous thing.

B)As stated by BLACKBURN, .J, that there must be escape of dangerous thing,here the weed
killer escaped with the help of rain water into the grounds of Mr. Kalyan which made the
vegetables toxic up to that extent when a child eats the vegetable it was enough to cause
harm and here the harm was caused to the 6 year old child as a consequence of consumption
of vegetables intoxicated by weed killer as per the medical report provided.

c)Non natural use of land has been been dealt previously in above arguments and there is non
natural use o12f land.

3. ) Whether the rule in Ryland’s vs. Fletcher could be used to obtain personal injury?

The counsel humbly submits that as in Rylands vs. Fletcher13, the case was brought to the
court of Exchequer claiming that there was negligence on the part of independent contractors,

9
Ratanlal & Dhirajlal
10
RATANLAL &DHIRAJLAL
11
ibd
12
Rylands vs. Fletcher All ER (1868)

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as they failed to seal properly the disused mine which they had come across during the
construction the reservoir and it was through those shafts the water flooded the plaintiff’s
mine .

Here the DS. no where held liable as they were not negligent in hiring the independent
contractor. The Court of Exchequer dismissed the claim as showing that no cause of action
as there vicarious liability could not be claimed on the independent contractor. The court of
exchequer allowed an appeal and the judgement of BLACKBURN ,J. Which laid down a
new basis of liability was approved by the house of lords , it is very much clear that rule of
strict liability originated from negligence as the Rylands vs. Fletcher was first claimed on the
basis of negligence later Justice identified new liability as strict liability.

We can confer here that the origin of Strict liability arises from negligence and here
Mr.Pavan is negligent also ,because he was aware of the fact that it was rainy season and he
sprayed weed killer liberally , which was powerful l weed killer and in rainy season,it was
quite evident that if rain comes it will lead to escape of the poisonous weed killer ,which can
cause damage to land or person.

Akira Anand was ill and admitted to hospital due to consumption of the intoxicated
vegetables and the vegetables became intoxicated because the weed killer was washed away
with the rain water and escape of weed killer with rain water led to intoxication of
vegetables .

3.1 Whether there was negligence on the part of Mr. Pavan?

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in
like circumstances .14Negligence is caused by carelessness not by intention .

3.1(a)

In negligence to occur there must be existence of duty, the existence of a duty situation or a
duty to take care is thus essential before a person can be held liable in negligence.15LORD
ATKIN in the celebrated case of Donghue vs.Stevenson 16 “you must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour .here respondent is totally negligent and has not reasonably foresee the
consequence of escape of weed killer in the rainy season ,which has caused into injury of
neighbour .

14
Blacks’ law dictionary
15
Jeet kumarI Poddar v. Chittagang Engineering and Electrical Supply Co. ltd.(1946)ILR 2Cal 433
16
1932 AC 562:147 LT 281:48TLR 494 HL

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Mr. Pavan is totally careless about the season that it is rainy season and he is also careless
while using powerful weeds ,which are very poisonous in nature and sprayed the weed killer
liberally on the flowers. In consequence of which rain washed away the weed killer with it
and intoxicated the patch of lettuce and later consumed by the family of Mr. Kalyan in which
son of Mr. Kalyan complaint of stomach pain and condition deteriorated and admitted in
hospital. Later It was found in the medical report that the illness of Akira Anand was
consequence of consumption of vegetables ,due to negligence of Mr. Pavan damage occurred
in which there was strict liability also so Mr. Pavan is negligent while spraying the weed
killer.

3.1(b)Breach of duty

In negligence it is to be proved that defendant owes a duty to take care to his neighbour, and
and in the impugned case the respondent has duty to take care of his neighbour and he has
failed to take care of his neighbour and he has liberally sprayed a weed killer ,escape of
which has caused injury to the neighbour or appellant Mr. Kalian and his son Akira Ananad.

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is
most humbly and respectfully requested that this Hon’ble Supreme Court to adjudge and
declare that:

1. There was non natural use of land by Mr.Pavan.

2. Rylands vs Fletcher could be used to obtain damages for personal injury.

3. There was damage occurred to aggrieved party, Akira Anand son of Mr.Kalyan and
compensation should be granted to Akira Anand on the basis of strict liability.

All of which is respectfully affirmed and submitted.


The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in the light of justice, equity and good conscience

Sd/-

(Counsel for the Appealant)

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