Argument Advanced

1. That Defendant is not liable for negligence

The counsel humbly submits to this Hon’ble Court that the defendant is not liable for negligence
and thus the plaintiff is not entitled to damages

Negligence involve three constituent (1) A Legal duty to exercise due care on the part of the party
complained of towards the party complaining the former’s conduct within the scope of duty (2)
Breach of said duty ; and (3) Consequential damage.1

According to Winfield and Jolowicz “Negligence is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff.”.

Lord Wright states that “Negligence means more than headless or careless conduct, whether in
commission or omission; it properly connotes the complex concept of duty, breach, and damage
thereby suffered by the person to whom the duty was owed.”2

Defendant didn’t owe any duty towards plaintiff ?

"The degree of care for the safety of others which the law requires human beings to observe in
the conduct of their affairs varies according to the circumstances. There is no absolute standard,
but it may be said generally that the degree of care required varies directly with the risk involved.
Those who engage in operations inherently dangerous must take precautions which are not
required of persons engaged in the ordinary routine of daily life "3

It is humbly submitted to this Hon’ble Court that the Excel TV may have assume that Laura may
have taken ordinary precaution for her safety as she was a celebrity participant she may not have
got engaged in this these kind of event and if Excel TV had provided her special precaution it
will be unfair on the parts of other celebrity participants.

In Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co, Ltd 4 it was laid
down that "in determining whether or not a duty of care of particular scope was incumbent on a
defendant it is material to take into consideration whether it is just and reasonable that it should
be so”.

The counsel humbly submits to this Hon’ble Court that the As from the fact sheet it is clear that
Excel TV has proposed a new reality TV show called “back to nature “ as form the name of the
show it is clear that the contestant have to live in nature away from their urban luxurious life ,
1
Ratanlal & Dhirajlal, THE LAW OF TORTS 474 (GP Singh ed., 26th ,2010)
2
Lochgelly Iron & Coal Co. V. MC Mullan 1934 A.C 1
3
Glasgow Corp v. Muir [1943] A.C 448……………………7-11
4
1984 3All ER 529
away from their comfort .So the company reasonably foresee that the contestant should have
taken reasonable precaution to avoid the injury .and the does not obliged any specific obligation
towards Vinaya

According to Occupier Liability Act, 19575.

(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right
conferred by contract with a person occupying or having control of the premises, the duty he
owes them in respect of dangers due to the state of the premises or to things done or omitted to
be done on them, in so far as the duty depends on a term to be implied in the contract by reason
of its conferring that right, shall be the common duty of care.

The counsel humbly submits to this Hon’ble Court that as the contract was between Laura and Excel
TV regarding the show “Back to Nature” , they cannot fumigate the room as it is a chemical
process ,but the show concept was to back to nature

How far a mere omission to prevent harm can be said to be cause of the harm can be
problematic. Where there is an existing risk or danger to which the defendant fails to respond,
arguably the risk or danger alone is the cause of the harm which ensues. The defendant has not
contributed to the risk which simply continues to operate without interference on the part of the
defendant or anyone else.6

For example, in East Suffolk Rivers Catchment Board v Kent the defendant Board decided to
exercise its statutory power to repair a sea wall, but did the work so negligently that the
claimant's adjoining land remained flooded for far longer than would have been the case had the
work been done properly. It was held that the Board was not liable, because the damage was due
to natural causes.7

Similarly in this case the plaintiff as the reasonable man should have the knowledge of existing
danger on the island, which the plaintiff fail to respond and contributed to the injury.

No breach of any legal duty to take care

The counsel humbly submits to this Hon’ble Court that Negligence is the breach of a legal duty to take
care as it is mentioned in the prop and the defendant has not breached any legal duty to take care as
of reasonable and prudent man they have provided all the facilities which are concurrent to the
theme fo the show . Their may be moral duty to provide special care but not legal one..

Three different contexts. Assuming negligence on the part of the defendant the defence of volenti
can be considered in three types of circumstance:to

5
Occupiers Liability Act 1957 ;Implied Terms in contract
6
2-64 charles percly
7
1941 AC 74
(i) where the claimant does not see a danger created by the negligence of the defendant, although he
ought to have seen it;

(ii) where the claimant does see the danger and decides to run the risk of it.and

(iii) where the claimant sees the danger and agrees to exempt the defendant from liability

Here we are using the second the 2nd point ………………….can’t be used

Patri deekh lena 2nd point use kar sako too

Voluntary non fit injuriya ; harm suffered voluntarily does not constitute a legal injury and is
not actionable . A man can complain of harm to the chances of which he has exposed himself
with knowledge and of his free will for eg ; A trespasser , having knowledge that there are spring
guns in a wood , although he may be ignorant of the particular spot they are placed cannot
maintain an action for an injury received in consequences of his accidentally trading on the latent
wire communicating and therby letting if off , for he voluntarily expose himself to the mischief
which has happened.8

Similarly in the present case the plaintiff voluntarily exposed herself to the risk she was
supposed to be aware as a reasonable and prudent man and as the show name suggest” Back to
Nature” she must be aware of that she would not be getting luxurious facilities and most of the
things they are going to use are form the nature itself . So the company is under no obligation to
furmentaion the room because it goes against the concept of the show.

As regard participation in the sports they must be held to accept risk which are inherent in that
sport9the same situation applies here as she has voluntary accept the risk of the show

The maxim applies, in the second place, to consent to run the risk of harm which would
otherwise be actionable. The maxim, be it observed, is not scienti non fit injuria' but 'volenti".
Knowledge is not a conclusive defence in itself. But when it is a knowledge under circumstances
that leave no inference open but on namely, that the risk has been voluntarily encountered, the
defence is complete.10It is necessary to prove that the person injured knew of the risk, and
voluntarily took it11.Thus a person willingly undertaking to do work which is intrinsically
dangerous , notwithstanding that care has been taken to make it as little intrinsiccally dangerous
as possible, cannot, if he suffers, complain that a wrong has been done to him.12

Laura as a reasonable person could have foreseen what could happen with her in case of any
insurgency and what impact it could have on his global tour sidelining all these things she
voluntary exposed herself to such harsh environment knowing all the risk she might go through .
8
Ratanlal & Dhirajlal, THE LAW OF TORTS 94 (GP Singh ed., 26th ,2010)
9
Ratanlal & Dhirajlal, THE LAW OF TORTS 97 (GP Singh ed., 26th ,2010)
10
Thomson v. Quartermaine, [1887] 18 QBD 685
11
Osborne v. London and North Western Ry Co., [1888] 18 QBD 685
12
Smith v. Baker & Sons, (1891) AC 325.
When a person has done nothing to put himself in any relationship with another person in
distress or with his property , mere accidental propinquity does not require him to go to that
person’s assistance.There may be a moral duty to do so but it does not make it a legal duty .13

Examples where consent can be implied include particaipation in sporting activities14

Impliedied agreement will not be found unless the claimant had full knowledge of
the risk and extent of the risk to the run.

No damages as thereof
The counsel humbly submits to this Hon’ble Court that

Subject to the question of remoteness, causation is a question of fact them could not have
happened but for the particular fault, then that fault is cause of the damage, if it would have
happened just the same fault or no fault, the fault is not the cause of the damage It is to be
decided by the ordinary plain common sense of the business15

As the bacterial infection was very common in the island the defendant can’t protect the plaintiff
in and out as she may have got infected with bacterial infection outside the premises, if it would
have happened just the same fault or no fault, the fault is not the cause of the damage.

Further, a risk produced by a negligent act or omission of an adverse condition arising at some
time in the future does not constitute damage sufficient to complete a tortious cause of action.
The victim of the negligence must wait for the event when the risk materialises. The risk of the
further disease is not actionable and neither is psychiatric illness caused by contemplation of that
risk.16

Roshwell v. Chemical & Insulating Co. Ltd. Re Pleural Plaque Litigation 17"The claimants in the case had
been negligently exposed to asbestos in the course of this employment and developed pleural plaque
which are areas of fibrous thickening of pleural membrane which surrounds the lungs. They cause no
symptoms nor other asbestos related diseases. But a diagnoses of pleural plaques discloses the
presence of in the lungs of asbestos fibres which cause life threatening diseases and may cause the
person to contemplate his future with anxiety or even suffer clinical depression. The claims in these
cases were rejected by the House of Lords for want of actionable injury

Similarly in the present case as the plaintiff got infected with bacterial infection, which is very comman
and owing to the bacterial infection in the future she got infected with lyrangitis which is not actionable
as it is the pure game of probabilities.
13
Ratanlal & Dhirajlal, THE LAW OF TORTS 490 (GP Singh ed., 26th ,2010)
14
4-90 c n p
15
Cork Kirby Maclean Ltd [1952] 2 All ER 402 at 406
16
Ratanlal & Dhirajlal, THE LAW OF TORTS 475 (GP Singh ed., 26th ,2010)
17
(2007) 4 All ER 1047 (H.L.)
“ The claim filed when the epidemiological evidence was that despite the possibility of synergistic effect.
the relative risk of developing the cancer from asbestos fibres wasmuch lower than the relative risk from
his smoking "Knowing that inhaling asbestos can cause cancer does not entail that in this case it
probably did"18

In this case bacterial infection may cause lyrangitis but in all probability it cause it can not be entrail.

Hence, it is established before this Hon’ble Court that the plaintiff has not come to the court with clean
hands as the plaintiff himself contributed to the injury complained of and is not entitled to the damages
as sought.

18
In Amaca Pty Lid v. Ellis, (2010] HCA 5