PANDIT RAVISHANKAR SHUKLA UNIVERSITY

BEFORE

THE HON’BLE SUPREME COURT OF ZINDIA

Civil Appellate Jurisdiction

CIVIL APPEAL NO. __ OF 2021.

IN THE MATTER OF

MR. AAUNGA --- APPELLANT

Versus

MR. JAUNGA --- RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF APPELLANT

Name – SHUBHENDU PRAKASH RAI

Class – Part V (1st Semester)

Roll no. – 0001653679

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 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 & Ca v. Mc Alpine, (1893) 1 Ch 167.

➢ Fletcher v. Rylands, (1886) 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 I ronca, (1878) C.P.D 254.

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 Books and Articles

➢ Ratanlal & Dhirajlal, The Law of Torts, 26th Edition, Lexis Nexis, A division of Reed

Elsevier India pvt Ltd.

➢ Dr. R.K. Bangia, Law of Torts, 23rd Edition, 2010, Allahabad law Agency, Mathura

Road, Faridabad (Haryana).

➢ P.M. Bakshi, The Constitution of India, 12th Edition, Universal Law Publishing co.

pvt. Ltd. 2013, New Delhi.

Statues and Internet Links

Statues:
➢ 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

➢ www.wikipedia.org

➢ www.indiankanoon.org

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 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORMS

& 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

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 STATEMENT OF JURISDICTION

The appellant Mr. Aaunga humbly submits for the Jurisdiction in “Honorable Supreme Court of Zindia”
under Article 136 of Constitution of Zindia.

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 STATEMENT OF FACTS

FACTUAL BACKGROUND

1. Mr Jaunga is an Assistant Professor of Botany in Chavishankar University in Chaipur. He resides in the

posh locality of Bhayankar Nagar. His neighbour is Mr. Aaunga, a Manager, there houses are adjacent to each
other and their garden is separated by a wooden fence. Mr. Jaunga has a hobby of raising different type of
flowering plants in his garden; on the other hand Mr Aaunga was fond of growing vegetables which lay
alongside the fence.

2. In the rainy season lots of weeds started growing in and around the flower bed, to get rid of them Mr Jaunga
purchased a powerful weed killer called ‘Dhinchak Pooja’. Since it was the poisonous substance there was the
express warning on the canister which stated that ‘Dhinchak Pooja’ was poisonous to humans and clearly
stated that “wash your hands thoroughly after use”.

3. Mr Jaunga sprayed ‘Dhinchak Pooja’ liberally on the flower beds. However, later that day, rain washed some
of the weed killer under the fence into Mr Aaunga vegetable patch which currently consisted of patch Lettuce.
The crop was eventually consumed by the Mr Aaunga’s family. The following day, Mr Aaunga’s five-year-old
son, Khaunga , started complaining of stomach-ache and was later admitted in the hospital due to his
deteriorating health condition. The medical evidence traced the cause of illness due to the weed killer
(Dhinchak Pooja).

4. An action was brought on behalf of Khaunga by Mr Aaunga against Mr.Jaunga . Lower court rejected the
clain stating that use od weed killer is a natural use of land. Further appeal to high court was also dismissed.
However, Mr Aaunga was granted leave to appeal in the Supreme Court.

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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. Jaunga’s land?

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

2.1 Whether Mr. Jaunga 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. Jaunga’s land?

• The counsel humbly submits that, the use of weed killer in garden by Mr. Jaunga, was non natural use
of land because, he liberally sprayed weed killer named ‘Dhinchak Pooja’ 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 Ryland’s 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 ‘Dhinchak Pooja’, and escape resulted in illness of the son of Mr. Aaunga, Khaunga, which is quite
evident in the medical certificate that the stomach pain of the five 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 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 neighbors, instead of knowing the fact he
had sprayed a powerful weed killer ‘Dhinchak Pooja’ 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. Jaungas’ 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
century 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. Jaunga has sprayed a highly poisonous
weed killer which was very powerful and using weed killer in a garden, because 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 o the
building was sued because some third-party wrongfully blocked all sinks and turned on all the
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. Fletcher4.

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

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 It was held 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 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. Jaunga has used the land extra ordinarily by using powerful weed killer
named ‘Dhinchak Pooja’ on his land because weeds could be removed by other techniques but
he switched to spraying of poisonous weed killer liberally on his land which amounts to the
extra ordinary use of land.

1.2. Judgments 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 Ltd5. The DS stored were held liable as the storage of
inflammable material was non natural use of land. Here Mr. Jaunga has sprayed a poisonous weed
killer which is powerful and can cause damages if it escapes, and Mr. Jaunga has brought a dangerous
thing which is the powerful weed killer and has caused harm to Khaunga son of Mr. Aaunga.

B. In the case of Crowhurt vs. Amersham Burail Board, the defendant has grown a poisonous tree and
the branch escaped from the land and the horse plaintiff died after eating the leaves of the 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.

3.
Langan vs. Valicopters, Inc., (Wash. 1977).
4.
Bella vs. Aurora Air, (Or. 1977).
5.
Crowhurt vs. Emerson Burriel Board All ER (1878)

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 In impugned case the respondent has sprayed the poisonous weed killer just like the above case, in
which defendant has grown poisonous tree, that poisonous tree has caused harm to the horse of
plaintiff; here harm has been caused to the son of Mr. Aaunga.
Mr. Jaunga 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 ‘Dhinchak Pooja’, 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 comes in contact of the mouth,
which show the gravity of dangerous substance used in the land.

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 vs. 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 common in valley which was quite prevalent.”

For example, an Oregon court applied strict liability to pesticide drift in the 1961 case of Loe vs.
Lenhardt.8

6 Drake Law Journal

7
ibd
8
ibd

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 In 1977; the court reaffirmed this position in Bella vs. Aurora Air, Inc. 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.

Another decision in pesticide cases is that of the Arkansas. Appellate Court of Appeals in J.L. Wilson
Farms, Inc. vs. Wallace 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 judgment 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. 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 anything 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 requirements 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.

9 Ratanlal & Dhirajlal

10 Ratanlal & Dhirajlal
11ibd

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 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. Aaunga 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 5 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 dealt previously in above arguments and there is non natural use
of land.12

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. Fletcher, the case was brought to the court of
Exchequer claiming that there was negligence on the part of independent contractors, as they failed to
seal properly the disused mine which they had come across during the construction of 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
was approved by the House of Lords, it is very much clear that rule of strict liability originated from
negligence as the Reylands 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. Jaunga is
negligent also, because he was aware of the fact that it was rainy season and he sprayed weed killer
liberally, which was powerful 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.

Khaunga 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 the rain water led to intoxication of vegetables.

12
Rylands vs. Fletcher All ER (1868)

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3.1 Whether there was negligence on the part of Mr. Jaunga?
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like
circumstances.13 Negligence is caused by carelessness not by intention.

A. In negligence to occur there must be existence of duty, the existence of duty situation or a duty to
take care is thus essential before a person can be held liable in negligence.14 LORD ATKIN in the
celebrated case of Donghue vs. Stevenson15 “you must take reasonable care to avoid acts or omissions
which you can reasonably foresee the consequence of escape of weed killer in the rainy season, which
has caused into injury of neighbor.
Mr. Jaunga 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. Aaunga in which son of Mr. Aaunga complaint of
stomach pain and condition deteriorated and admitted in hospital. Later it was found in the medical
report that the illness of Khaunga was consequence of consumption of vegetables, due to negligence of
Mr. Jaunga damage occurred in which there was strict liability also so Mr. Jaunga is negligent while
spraying the weed killer.

B. Breach of Duty
In negligence it is to be proved that defendant owes a duty to take care to his neighbor, and in the
impugned case the respondent has duty to take care of his neighbor and he has failed to take care of
his neighbor and he has liberally sprayed a weed killer, escape of which has caused injury to the
neighbor or appellant Mr. Aaunga and his son Khaunga.

13 Blacks’ law dictionary

14 Jeet Kumar Poddar vs. Chittagang Engineering and Electrical Supply Co. Ltd. (1946) ILR 2Cal 433
151932 AC 562: 147 LT 281:48 TLR 494 HL

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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. Jaunga.

2. Rylands vs. Fletcher could be used to obtain damages for personal injury.
3. There was damage occurred to aggrieved party, Khaunga son of Mr. Aaunga and
compensation should be granted to Khaunga 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.

Sign/Date

(Counsel for the Appellant)

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