Team Code: 14

KLE SOCIETY’S LAW COLLEGE

INTRA MOOT COURT COMPETITION 2022

4 TH AND 9TH APRIL 2022

BEFORE

THE HON’BLE CIVIL COURT OF DOOMSTADT

DISPUTE RELATING TO

NEGLIGENCE AND

CIVIL SUIT NO. /2022

In the matter of

MR. PETER PARKER PLATINTIFF

V.

MR. HARRY OSBORNE DEFENDANT

MEMORIAL FOR DEFENDANT

MR. HARRY OSBORNE

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………….1

INDEX OF AUTHORITIES……………………………………………...2

TABLE OF CASES………………………………………………………..3

STATEMENT OF JURISDICTION……………………………………..5

STATEMENT OF FACTS………………………………………………..5

STATEMENT OF ISSUES……………………………………………….7

SUMMARY OF ARGUMENTS………………………………………….8

ARGUMENTS ADVANCED……………………………………………..9

ISSUE 1: WHETHER Mr. OSBORNE IS LIABLE TO PAY

COMPENSATION………………………………………………….…….9

ISSUE 2: WHETHER THE STATE OF LATVERIA IS VICARIOUSLY

LIABLE FOR THE ACTIONS OF Mr. OSBORNE……………..…….11
THEPRAYER………………………………………………………….….15
 LIST OF ABBREVIATIONS

SLNO. ABBREVIATION FULL FORM

1. A.I.R. All India Reporter
2. Co Company
3. Ltd Limited
4. I.C. Indian Cases
5. S.C. Supreme Court
6. Sec. Section
7. u/s Under Section
8. V. Versus
9. Pvt. Private
10. A.C. Appeal Court
11. H.L House of Lords
12. Exch Exchequer Court
13. AUER All England Law
Rq)orts
14. KB King’s Bench
15. CA Court of Appeal.
 INDEX OF AUTHORITIES

BOOKS REFERRED:

1. Ratanlal and Dhirajlal, Law of Torts, Lexis Nexis, 26th Edition.

2. Clerk & Lindsell on Torts, Sweet and Maxwell, 1982, 15 Edition
th
 TABLE OF CASES

STATUTES REFERRED:

LAW OF TORTS and THE MOTOR VEHICLES ACT, 1988

CASES REFFERED:

1. Holmes v. Mather
2. Shridhar Tiwari v. U.P. State Road Transport Corporation
3. Caswell v. Powell Duffryn, (1940) A.C 152
4. Davies v. Swan motor Company ltd,(1949) 1 All E.R 620
 STATEMENT OF JURISDICTION

The plaintiff has approached this Hon’ble Civil Court of Doomstadt has inherent
jurisdiction to hear the instant matter under the section 9 of Civil Procedure Code. The
plaintiff humbly submits to this jurisdiction.

Section 9 - Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either expressly
or impliedly barred.
[Explanation I]. A suit in which the right to property or to an office is contested is a
suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
[Explanation II], For the purposes of this section, it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not such office
is attached to a particular place.]
 STATEMENT OF FACTS

BACKGROUND

1. Peter Parker works in Doomstadt as a web developer. His uncle Ben, aged 60
years, is a Station Master in Arkham Railway Station, situated in the rural part
of Doomstadt. He visited Peter for the Christmas holidays. Since uncle Ben
was from a small village, the pace of life in the city was something that he
hadn’t been able to adjust to. December was exceptionally cold that year and
it snowed very frequently.

2. The city is notorious for its miserable road infrastructure and terrible traffic.
As a result of these conditions, accidents were frequent in Doomstadt.
Unbeknownst to Peter, Ben had suffered an accident 6 months prior and had
been suffering from PTSD since.

3. On the eve of Christmas, when Peter and Ben were trying to cross a busy road,
Ben became numb and stopped midway on the road, being startled by the fast-
moving traffic.

4. Mr. Harry Osborne, a traffic police officer, was going home after work. He
had been a teetotaler up until that fateful night when he was forced to drink
alcohol by his best friends. While avoiding a truck which was coming towards
him from the wrong side, he swerved and hit a pothole. This in turn caused
him to lose control over the car and consequently hit Mr. Ben Parker who was
standing in the middle of the road. Harry was driving within the speed limit
and even tried to come to halt before he hit Mr. Ben Parker. That pothole has
been a hotspot for accidents in previous months but no action has been taken
by the Government to remedy the same.

5. As a result, Ben was admitted at the Latveria Central hospital and the
diagnosis showed that he had suffered multiple fractures to the ribs and also
a broken leg. Considering his age, the doctor opined that complete recovery
is not possible and also that he would not be able to attend to his daily
functions without assistance. Due to the fact that Peter was taking days off
from his work to tend to his uncle, he lost his job which was his only source
of income. Mr. Ben Parker also lost his job because of his ailing condition.
DISPUTE AND SUIT

6. Mr. Peter Parker filed a suit against Mr. Osborne and the Republic of Latveria,
claiming a compensation of 50,00,000 Lats (currency of Latveria) for the loss
of employment of both Ben and Peter, their collective mental agony, the
injuries suffered by Ben and the resulting medical expenses.
 STATEMENT OF ISSUES

ISSUE NO. 1

Whether Mr. Osborne is liable to pay the compensation?

.

ISSUE NO. 2

Whether the State of Latveria is vicariously liable for the actions of Mr. Osborne?
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether Mr. Osborne is liable to pay the compensation?

It is humbly submitted before the hon’ble court that the defendant is not liable to
pay damages to the plaintiff because:
1) Peter was negligent.
2) The incident was to inevitable accident.
3) Harry was driving within the speed limit and even tried to come to halt
before he hit Mr. Ben Parker.

ISSUE 2: Whether the State of Latveria is vicariously liable for the actions of
Mr. Osborne?

The State of Latveria is not liable for the acts of Mr. Osborne because the acts
were outside the course of employment. Moreover, there is no fault on the part of
Defendant as it was an inevitable accident and where the plaintiff was at fault.
Thus, the question of liability on the part of the State does not arise.
 ARGUMENTS ADVANCED

ISSUE 1: Whether Mr. Osborne is liable to pay the compensation?

The counsel humbly submits to this Hon’ble Court that the defendant is not
liable to pay any damages or compensation to the plaintiff, Peter. The counsel
submits the following parameters to support the above statement:

A) Inevitable Accidents:

In the words of C.J. Shaw of Massachusetts SC: “Inevitable Accidents is an

accident such as the defendant couldn’t have avoided by the use of the kind &
degree of care necessary to the exigency & in the circumstances he was placed.”

A similar principle was observed in the case of Holmes v. Mather 1 – a person

along the road was knocked down by a pair of horses which is suddenly got out
of control of the groom who was trying to stop them from entering into a shop on
the opposite side, the defendants were held not liable on the grounds of inevitable
accident.
Bramwell, said thus: “For the convenience of mankind in carrying on the affairs
of life, people as they go along the roads must expect or put up with mischief as
reasonable care on the part of others could not avoid.” The defendant is a
rational human being and the possibility of the plaintiff getting hurt due to
accident was not foreseeable.

1
Holmes v Mather (1875) LR 10 Ex 261
 B) Plaintiff’s Negligence:
The counsel contends that there is negligence on the plaintiff's part. The
plaintiff stood numb in middle of road.

1.In the instant case there is negligence on the part of the plaintiff, had he been careful
the incident would not have occurred. A man could not recover for damage of
which he himself was the cause. The plaintiff’s fault may have operated in such
a way that he was the author of his own injury. His action fails on the ground of
causation, and this has been the case from early times. The principle of the
plaintiff’s default is not only an aspect of the larger question of causation, but
also as such shades of into contributory negligence and remoteness.
2.In the case of Davies v. Swan motor Company ltd2, an employee of Swansea
Corporation, in contravention of the regulations, was riding on the steps attached
to the offside of the dust lorry. There was a collision when an omnibus tried to
overtake the dusty lorry. In consequence, an employee standing on the steps of
the lorry was hit, seriously injured and ultimately died. It was held that although
there was negligence on the part of the driver of omnibus, there was also
contributory negligence on the part of the deceased.
3.In the case of Yoginder Paul Choudhary v. Durgadas3, The Delhi High Court has
held that a pedestrian who tries to cross a road all of a sudden and is hit by a
moving vehicle, is guilty of negligence.

2
Davies v Swan Motor Co (Swansea) Ltd: CA 1949
3
1972 S.C.J 483
 4.In the case of Nance v. British Columbia Electric Railway Company,4 the deceased
crossed the road which had become slippery due to ice, as he suddenly came in
front of the motor vehicle, he was tun over by the same. It was held that there
was contributory negligence on the part of the deceased.
5.In the case of Harris v. Toronto transit Commission, the Supreme court of Canada
has held that if a boy sitting in the bus projected his hand outside the bus in spite
of warning and is injured, he is guilty of contributory negligence. To be guilty of
Contributory negligence, the plaintiff should not have acted like a prudent man.
If he has taken as much care as a prudent man would have taken in a similar
situation, there is no Contributory negligence.
6.Thus in the instant case there is clearly fault on the part of the plaintiff, and
whenever the plaintiff is a reason for the causation of a wrongful act caused to
him he cannot be entitled to the relief, Mr Ben could have informed his state of
mind to Mr Peter and that he was suffering from PTSD, however he did not
inform about the same. Also, he himself was not alert while crossing the road
which has thereupon caused him to suffer.

C). Necessary measures undertaken by the defendant:

Even though Mr. Harry Drank Alcohol he was under alcohol limit and was
driving within the speed limit and even tried to come to halt before he hit Mr.
Ben Parker.

4
(1951) 2 All. ER 448
ISSUE 2: WHETHER THE STATE OF LATVERIA IS VICARIOUSLY LIABLE
FOR THE ACTIONS OF Mr OSBORNE?

1. In the instant case State of Latveria is not liable to pay any compensation as, firstly
there was no negligence on the part of the defendant, and that the incident was
inevitable accident. Moreover, the act committee was outside the course of
employment of the defendant and thereby the state cannot be held liable for the
same.
2. Where the relationship of master and servants exist, the master is liable for the torts
of the servant so long only as they are committed in the course of the servant’s
employment. A servant driving his colleague to work or taking him home will not
actually be doing so within the scope of his employment unless the employer
requires the servants to travel in this manner as part of their duties. The same
principle is applicable in the case of principal and agent relationship also.
3. On the other side of the line, a master was held not liable when his servant was
guilty of negligence while cycling home to lunch even though he had permission
to use the bicycle for that purpose.
4. But some acts, generally considered to be the servant’s own business, such as travel
to and from work, may in particular circumstances be so closely connected to the
performance of his job that they will be classified as acts necessarily incidental to
his employment. In this case also the act where the defendant was driving back
home and the entire unforeseeable incident had arisen outside the course of
employment and thus the state cannot be held liable for the same.
5. In the case of Storey v. Ashton, there a carman while on this way back to his
employer’s office, was induced by another employee to turn of in another direction
 for picking up something for that employee. While the carman was going on this
new direction, he caused an accident with the plaintiff. The master was held not
liable because if the carman ‘had been merely going on a round about at home, the
master would have been liable; but he had started on a entirely new journey bon
his own or his fellow servant’s account and could not, in anyway, be said to be
carrying out his master’s employment.
6. Similarly, if a master lends his car to a servant for the latter’s private work, he
cannot be held liable for the negligence of the servant as the servant’s act is
obviously outside the course of employment.
7. Thus, from a plethora of cases it can be inferred that when the acts have been
committed outside the course of employment and when the acts are of such a nature
which has caused injury and thereby has resulted in the claim of compensation,
then the principal cannot be held liable for the same. In the instant case the State
of Latveria is thus not liable to provide any compensation to the plaintiff.
 PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, arguments
advanced and authorities cited, it is most humbly prayed and implored before the
Hon’ble Civil Court of, that it may be graciously pleased to adjudge and declare that:

1. The defendant is not liable for negligence as the incident was inevitable accident.
2. In the instant case State of Latveria is not liable to pay any compensation as, firstly
there was no negligence on the part of the defendant, and that the incident was
inevitable accident. Moreover, the act was committed outside the course of
employment of the defendant and thereby the state cannot be held liable for the same.
3. The compensation claim by the plaintiff is highly excessive, exorbitant and fanciful
and the plaintiff is trying to make a windfall out of an inevitable accident.

Also, pass any other order that the court may deem fit in the favor of defendant to
meet the ends of Equity, Justice and Good Conscience.
For this act of Kindness, the Defendant shall duty bound forever pray.

Place: Doomstadt Respectfully submitted,

Dated: 31st March 2022 Counsel for Defendant