ARMY INSTITUTE OF LAW, MOHALI

BEFORE

(Under )

MR. DIXIT …………………………………………PLAINTIF

Vs.

RAGHUNATH …………………………………………………………….DEFENDANT

MEMORANDUM ON BEHALF OF THE DEFENDANT

 7th SEMESTER AIL INTERNAL CLASS MOOT, 2019

TABLE OF CONTENTS

1. Index of Authorities

i. List of Abbreviation

ii. Table of Cases

iii. Books and Articles

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

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

2. Dr. Ashok vs. Union of India and others, AIR 1997 SC 2298

3. Kennedy v. City of Sawyer, (1980)228 kan. 439

4. M.P. Electricity Board v. Shail Kumar, A.I.R. 2008 S.C. 46

5. Ponting v. Noakes, (1849) 2 Q.B. 281

6. Rickards v. Lothian, (1913) A.C. 263

7. Rylands v. Fletcher (1868) L.R. 3 H.LL 330

8. Sochacki v. Sas, (1947) 1 All E.R. 344

9. T.C. Balakrishnan Menon v. T.R. Subramanian, A.I.R. 1968 Kerala, 151

10. West v. Bristol Tramways Co., (1908) 2 K.B. 14

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Books and Articles

1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, Gurgaon 26th edn. 2010

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

3. P.M. Bakshi, The Constitution of India, Twelfth Edition, Universal Law Publishing
Co. Pvt. Ltd. 2013, New Delhi

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List of Abbreviations

1. AIR All India Reporter

2. All. ER All England Law Report
3. Edn. Edition
4. L.R. Law Report
5. Q.B. Queen’s Bench
6. K.B. King’s Bench
7. Kan. Kansas
8. CO. Company
9. ER England Reporter
10. SC Supreme Court
11. SCC Supreme Court Cases
12. UKHL United Kingdom House of Lords
13. V Versus

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STATEMENT OF JURISDICTION

The Appellants humbly submits this memorandum for appeal filled under
this Honourable Court under Article 136 of Constitution of India.

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STATEMENT OF FACTS

1. Mr. Rahunath was an avid botanist.His passion for collecting and growing rare
plants grew to such an extent that he made a profession out of him. He had a 6
acre sprawling nursery on the border pf Chandigarh and mohali, selling rare,
unusual and exotic plants.
2. He travelled the world to looking for starnge varieties of fruits and flower trees to
bring back to India.
3. On one of his trips to singapore, he found a tree for a fruit called Durian. The
sellere warned him that the thought that the fruit was very healthy, it gave off a
horrible stink. SO much so that it was illegal to transport the fruit in the city limits
of singapore.
4. He got a sapling of the same and planted it in the corner of his nursery.After about
two years in september of 2016, durian tree bore fruit for the first time. It indeed
gave off an unbearable strench but was very tasty as well as healthy
5. He made a huge profit out of it and soon had many trees on his premises.
6. His immediate neighour MR. DIXIT who also had a plant nursery in mohali was
not doing as well as Raghunath. They had fought many times on trivial issues but
when Mr dixit brought a suit for compensation against raghunath, which claimed
that it had become impossible to live because of the horrible smell which
emanated from the durian tree, Raghunath was shocked. Hetried to reason with
dixit that it was only a liuttle smell and also it was entirely planted in his
compound but to no avail
7. Thus raghunath decided not to reason with dixit and contest the claim.

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STATEMENT OF ISSUES

1 WHETHER THE USE OF WEEDKILLER WAS A NON-NATURAL USE OF

PAVAN’S LAND?

2 WHETHER ALL ELEMENTS OF STRICT LIABILITY WERE SATISFIED OR NOT?

2.1. WHETHER ALL ELMENTS ARE SATISFIED IN TOTO?

2.2. WHETHER REASONABLE FORESEEABLITY IS APPLIED IN THIS CASE?

3 WHETHER THE RULE OF RYLANDS V. FLETCHER COULD BE USED TO

OBTAIN DAMAGES FOR PERSONAL INJURY?
3.1 WHETHER MR. PAVAN WAS NEGLIGENT IN HIS ACTIONS?

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SUMMARY OF ARGUMENTS

1. WHETHER THE USE OF WEED KILLER WAS A NON-NATURAL

USE OF PAVAN’S LAND?

The appellant submits that using highly poisonous weed killer was non-natural
use of Pavan’s land. For the use to be non-natural, it must be some special use
bringing with it increased danger to others, and must not be merely by the
ordinary use of land or such a use as is proper for the general benefit of
community.

Liberal use of a highly poisonous substance in kitchen garden is a non-natural

use of land.Here liberal use of weedicide which is used in agricultural activities
in garden is non-natural use of land.

2. WHETHER ALL ELEMENTS OF STRICT LIABILITY WERE

SATISFIED OR NOT?

All the conditions put down under Rylands v Fletcher for the strict liability rule are satisfied
in this case. Weed killer is a dangerous thing which escaped from Pavan’s land and using
weed killer in garden was non-natural use of land. So, all element laid down in rule of
Rylands v. Fletcher are satisfied ‘in Toto’.Also foreseeability is relevant in this cases only to
establish negligence on part of Mr. Pavan.

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3. WHETHER THE RULE OF RYLANDS V. FLETCHER COULD BE

USED TO OBTAIN DAMAGES FOR PERSONAL INJURY?

“Personal Injury” means a physical or mental injury. In India the rule of Rylands v. Fletcher
has been considered by Supreme Court in some cases and applied to personal injury. Also
negligence on part of Mr. Pavan is sufficient to apply the rule of strict liability for damages
against personal injury in the instant case. In case this case Akira Anand, Mr. Kalyan’s son
got stomach pains and was later admitted into the hospital due to his deteriorating condition.

The medical evidence conclusively traced the cause of illness to weed killer which shows a
physical injury to Akira Anand due to respondent’s negligence. Hence, rule of Rylands v.
Fletcher will be used to obtain damages.

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ARGUMENTS ADVANCED

1. THE USE OF WEED KILLER WAS A NON-NATURAL USE OF LAND:

Strict Liability is a liability that does not depend on actual negligence or intent to
harm, but that is based on the breach of an absolute duty to make something safe1.
Non-natural use of land is an essential element in rule of strict liability2. For a use
being non-natural, it must be some special use bringing with it increased danger to
others, and must not merely be ordinary use of land3. Bringing and liberally using a
highly poisonous weed killer in one’s garden is non-natural use of land.

In case of Crowhurst v. Amersham Burial Board4, growing of a poisonous tree was

considered non-natural use of land. So, it is established that using something that is
poisonous to humans, itself may also be inferred as non-natural use of land. Using a
weed killer which is poisonous to human may also be inferred as non-natural use of
land with the help of Insecticides Act, 19685.

Insecticide Act also define weedicides and fungicides as insecticides in section 3(3)
(e). Also section 36(2) (i) of The Insecticides Act defines the power of central
government to make rules regarding the methods of packaging and labelling different
pesticides. Insecticides Rules, 1971 section 19(4) (i) & (ii) define the warnings to be
put on insecticides of different degrees of toxicity. As per insecticides rules, word
poison should be stated on insecticides with high and extreme toxicity6.

There was express (written) warning on the canister stating that, “Slaughter was
poisonous to humans” and also“Wash hand thoroughly after use”, which makes
Slaughter a 1st class insecticide recognized as highly risky substance as per Insecticide
Act, 1968.

In case of Dr. Ashok vs. Union of India and others 7ban on sale, use and distribution
of 40 insecticides that were harmful to humans was appealed by Dr. Ashok. It was
held that “if the Central Government or State Government is of the opinion that the

1
Bryan A. Garner, Black’s Law Dictionary 04 (Thomas Reuters, USA, 9 th edn. , 2004)
2
Rylands v. Fletcher (1868) L.R. 3 H.LL 330
3
Sochacki v. Sas, (1947) 1 All E.R. 344
4
(1878) 4 Ex. D. 5
5
The Insecticide Act,1968 (Act No.46 of 1968)
6
Insecticides Rule, 1971
7
AIR 1997 SC 2298

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use of any insecticide is likely to involve risk to human beings, then the sale,
distribution or use of the insecticide or batch can be prohibited in such area.

Also in case of Kennedy v. City of Sawyer, 19808, Respondents were held liable when
Mr. Aubley acting on behalf of the city, sprayed herbicide solution along the fence
surrounding the 3.7 acre tract and six cattle of Appellants died under the rule of strict
liability.

Similarly in this case use of ‘Slaughter’ for killing weeds in an ordinary garden can be
inferred as non-natural use of land.

2. ALL ELEMENTS OF STRICT LIABILITY WERE SATISFIED:

All elements of strict liability were satisfied in Toto. First element that i.e. there
should be a dangerous thing is that the liability for the escape of a thing from one’s
land arises provided that the thing collected was a dangerous thing i.e. a thing likely
to do mischief if it escapes.9

In case of Ponting v. Noakes, 189410 leafs of a Yew tree were considered as

dangerous thing.Here, using of a dangerous weed killer which is also poisonous
shows that first element is satisfied.

Second element ‘escape’ says that to apply the rule in Rylands v. Fletcher, it is also
essential that the thing causing damage must escape to the area outside the occupation
and control of defendant.

In case of Rickards v. Lothian11there was escape of water due to blockage of wash

basin. Similarly in this case Mr. Pavan’s poison escaped his land and was consumed
by Mr. Kalyan’s son.
Third element that is non-natural use of land is already established in 1st contention.
Therefore all elements of Strict Liability are satisfied in Toto

8
228 kan. 439 (1980)
9
West v. Bristol Tramways Co., (1908) 2 K.B. 14
10
(1849) 2 Q.B. 281
11
(1913) A.C. 263

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Other thing is that Reasonable Foreseeability is not relevant in strict liability. In case
of M.P. Electricity Board v. Shail Kumar12, explaining the nature of strict liability, the
Hon’ble Supreme Court observed:

It differs from the liability which arises on account of the negligence or fault in this
way, i.e. the concept of negligence comprehends that the foreseeable harm could be
avoided by taking reasonable precautions. If the defence did all that which could be
done for avoiding the harm, he cannot be held liable when the action is based on
negligence attributed but “such consideration is not relevant in cases of strict liability
when the defendant is held liable irrespective of whether he could have avoided the
particular harm by taking precautions.”

In this case even though Mr. Pavan could foresee the result of liberally using
poisonous weed killer in rainy season i.e. escape. Still as per this judgement of
Supreme Court in 2008, it is not relevant in cases of strict liability when the defendant
is held liable irrespective of foreseeability.

3. THE RULE OF RYLANDS V. FLETCHER COULD BE USED TO OBTAIN

DAMAGES FOR PERSONAL INJURIES:

The Appellants humbly submits that the rule of Ryland v. Fletcher could be used to
obtain damages for Personal Injuries. As per the book ‘The Law of Torts’ by Ratanlal
& Dhirajlal, page no. 509, it is clearly stated that “In India the rule of Rylands v.
Fletcher has been considered by the Supreme Court in some cases and applied to
personal injuries”.

As per Personal Injuries (Emergency Provisions) Act, 1962 section 2(6), ‘Personal
Injury’ is defined as physical or mental injury13. In case of T.C. Balakrishnan Menon
v. T.R. Subramanian 14 strict liability was applied to physical injuries caused to
respondent and Kerala High Court held appellant liable for the application of the rule
in Rylands v. Fletcher.

12
A.I.R. 2008 S.C. 46
13
Personal Injuries (Emergency Provisions) Act, 1962
14
A.I.R. 1968 Kerala, 151

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Also, if the defendant makes ‘non-natural use of land’ in his occupation in course of
which there is escape of something which causes foreseeable damage to person or
property outside the defendant’s premises, the defendant is liable irrespective of any
question of negligence on the basis of the rule of strict liability propounded in
Rylands v. Fletcher 15. In the instant case, Mr. Pavan could reasonably foresee the
consequences of liberally using highly poisonous weed killer in rainy season i.e.
washing away of some of the weed killer under the fence onto Kalyan’s vegetable
patch.

Therefore, the rule of strict liability will be applied to gain application for personal
injuries in this case.

15
Ratanlal & Dhirajlal, The Law of Torts 10 (Lexis Nexis, Nagpur 26th edn. 2010)

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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 to adjudge and declare that:

1. The Compensation Amount of ₹10, 00,000 to be awarded.

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 Defendant)

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