2096-P

IN THE
LEARNED DISTRICT COURT
AT GOA

—IN THE MATTERS OF—

MR. AMAN .... PLAINTIFF

(REPRESENTED BY COUNSEL)
vs.
MR. DEEPAK .... DEFENDANT
(REPRESENTED BY COUNSEL)

CIVIL SUIT NO. XXX/2023

________________________________________________________________________

(UNDER SECTION 6 AND SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908 READ WITH
ORDER VII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908)

MEMORIAL ON BEHALF OF THE PLAINTIFF

 TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................................. iii

STATEMENT OF JURISDICTION ..................................................................................... iv

ISSUES OF CONSIDERATION ............................................................................................ v

STATEMENT OF FACTS ..................................................................................................... vi

SUMMARY OF ARGUMENTS ...........................................................................................vii

ARGUMENTS ADVANCED .................................................................................................. 1

1. THE DEFENDANT OWED A DUTY OF CARE TOWARDS THE PLAINTIFF AND

THE SAME WAS BREACHED. .......................................................................................... 1

2. THE DEFENDANT IS LIABLE TO PAY COMPENSATION FOR THE INJURY

CAUSED BY THE DEFENDANT’S SON TO THE PLAINTIFF’S WIFE AND

PROPERTY. .......................................................................................................................... 2

PRAYER FOR RELIEF.......................................................................................................... 4

ii
 INDEX OF AUTHORITIES

Cases

Blyth vs. Birmingham Water Works Co. (1856) 11 Ex Ch 78 .................................................. 1

Donoghue vs. Stevenson (1932) UKHL 100 ............................................................................. 1

Norton vs. Payne 154 Wn. 241 .................................................................................................. 3

Ryley vs. Lafferty 45 F.2d 641 .................................................................................................. 2

iii
 STATEMENT OF JURISDICTION

The Plaintiff most humbly submits that this Learned District Court at Goa has the jurisdiction
to hear the present matter of:

(1) CIVIL SUIT NO. XXX/2023 filed by Mr. Aman under Section 6 and Section 9 of the Code
of Civil Procedure, 1908 read with Order VII Rule 1 of the Code of Civil Procedure, 1908.

All of which is urged in detail in the written submission and is submitted most respectfully.

iv
 ISSUES OF CONSIDERATION

(1) WHETHER THERE EXISTED A DUTY OF CARE ON BEHALF OF THE

DEFENDANT, THE BREACH OF WHICH RESULTED IN INJURY TO THE
PLAINTIFF’S WIFE AND THE PLAINTIFF’S PROPERTY?

(2) WHETHER THE DEFENDANT IS LIABLE TO PAY COMPENSATION FOR THE

ACT DONE BY THE DEFENDANT’S SON?

v
 STATEMENT OF FACTS

(1) The plaintiff, Mr. Aman, and the defendant, Mr. Deepak are neighbours residing in
Goa. The plaintiff’s house is a two-storey house with large French windows on both
the floors which open out to balconies. He has been residing in the house for over 20
years with his wife.
(2) The defendant, Mr. Deepak is a doctor who moved in to the same locality as of the
plaintiff around 2007. Shivaal, the defendant’s son is a boisterous child with an avid
interest in cricket. He plays cricket every evening with kids of his age on the street
outside his house. Once in a while the ball would find its way inside Mr. Aman’s
property, which they considered lost as they would never return the ball.
(3) Mr. Aman has brought this to the attention of Mr. Deepak, telling him in no uncertain
terms that the activity of the kids was very unwelcomed and the ball could very well
have caused damage to his property or hurt him or his wife. In spite of this the boys
would often play on the street.
(4) On the 10th of January 2023, Aman had just come home and he had not opened the
windows because it was raining that morning. His wife was reading a book, on the first
floor. At around 5pm, Aman heard glass breaking and Anu’s scream filled the house.
He ran upstairs to see Anu on the floor with her hands on her face and a ball at the far
end of the hall. He looked out the window to see Shivaal running back into his house.
Anu had shards of glass on the left side of her face and her left eye was badly injured.
(5) Aman rushed Anu to a hospital. That evening Deepak telephoned Aman and apologised
for what had happened to Anu. He said Shivaal understood the gravity of his mistake
and will refrain from playing on the street again. Aman was angry and said they would
talk about it later. After a few days, the doctor informed Aman and his wife that Anu
would not regain sight in her injured eye. She was also left with several scars on her
face. Aman called Deepak to inform him of the consequences of his child’s act and
asked him to clear the hospital dues and compensate of the injury. He claimed for an
amount of 1.5 lakh rupees towards medical expenses and also a compensation of 5 lakh
rupees for the permanent loss of sight. However, Deepak refused. Aman has brought a
civil suit in Goa for damages against Shivaal and his father Deepak.

Hence the present matter before this Learned Court.

vi
 SUMMARY OF ARGUMENTS

1. THE DEFENDANT OWED A DUTY OF CARE TOWARDS THE PLAINTIFF

AND THE SAME WAS BREACHED.
The plaintiff humbly submits that the defendant owed a duty of care to adequately
supervise the actions carried out by his child. The plaintiff had reminded the
defendant of the possible repercussions that may cause damage to the plaintiff, his
wife or his property. The omission on behalf of the defendant by not supervising his
child resulted in damage to the plaintiff’s property and even worse, to the wife of the
plaintiff who has permanently lost vision in the injured eye and has scars on her face
causing physical as well as emotional distress, along with loss of dignity.

2. THE DEFENDANT IS LIABLE TO PAY COMPENSATION FOR THE

INJURY CAUSED BY THE DEFENDANT’S SON TO THE PLAINTIFF’S
WIFE AND PROPERTY.
In furtherance of the previous argument, the defendant will be liable to pay the
damages caused as a result of the injury caused by the defendant’s child to the
plaintiff’s wife and to the plaintiff’s property. The child being a minor is uncapable of
reimbursing for the damages so caused, and it is thus the parent i.e., the defendant
who is liable to pay for the damages.

vii
 ARGUMENTS ADVANCED

1. THE DEFENDANT OWED A DUTY OF CARE TOWARDS THE PLAINTIFF AND

THE SAME WAS BREACHED.

1.1. Negligence, as defined in the case of Blyth vs. Birmingham Waterworks Co.1, refers
to the failure of an individual or entity to take reasonable care in their actions or
conduct, which leads to harm or injury to another person. It established the principle
that individuals or organizations owe a duty of care to others, and that they can be held
liable for harm or injury resulting from their failure to exercise reasonable care.
1.2. Donoghue vs. Stevenson2 laid down the neighbour principle, you must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to
injury your neighbour. The term "neighbour" means a person who is foreseeable as
being likely to be affected by one's actions or omissions. The concept of a "neighbour"
in this sense is not limited to physical proximity, but rather refers to a person who is
within the scope of the reasonable foreseeability of harm that could result from one's
actions or omissions. In other words, a person is considered a "neighbour" if they are
within the reasonable contemplation of the defendant as being likely to be affected by
their actions or omissions.
1.3. In the present case, the defendant, as the father of the child who shot the cricket ball
into the plaintiff's property and caused injury to the plaintiff's wife, should be held
liable for the tort of negligence. The defendant had a duty of care to take reasonable
steps to prevent his child from causing harm to others while playing cricket. This duty
of care was heightened by the fact that the defendant was explicitly warned of his
child's conduct and the potential for injury. Despite this warning, the defendant failed
to take necessary steps to supervise his child's activity, such as ensuring that the child
was playing cricket in a safe and controlled manner. As a result, the defendant's failure
to fulfil his duty of care led to the injury of the plaintiff's wife and the damage to the
plaintiff's property. Furthermore, the defendant's refusal to compensate for the
damages caused by his child further demonstrates a lack of due care and disregard for
the consequences of his child's actions. The plaintiff's wife has suffered permanent loss

1
Blyth vs. Birmingham Water Works Co. (1856) 11 Ex Ch 781
2
Donoghue vs. Stevenson (1932) UKHL 100

1
 of vision in her injured eye and scars on her face, causing physical as well as emotional
distress, along with loss of dignity, and the defendant should be held responsible for
his failure to take necessary precautions and for not taking due care.

2. THE DEFENDANT IS LIABLE TO PAY COMPENSATION FOR THE INJURY

CAUSED BY THE DEFENDANT’S SON TO THE PLAINTIFF’S WIFE AND

PROPERTY.

2.1. As per notion, a minor is not worth suing because of his incapability to reimburse
damages, however, the defendant as a parent of the minor is liable to compensate for
the same.
2.2. During the time of the incident, the plaintiff looked out the window to see Shivaal, the
defendant’s child running back into his house. This proves that Shivaal can distinguish
between right and wrong. He ran because he knew he had done something wrong. The
defendant had telephoned the plaintiff and apologised for what had happened to the
plaintiff’s wife. He said Shivaal understood the gravity of his mistake and will refrain
from playing on the street again. But the matter of fact is that severe injury had been
caused to the plaintiff’s wife already, taking necessary measures which should have
been taken prior to said injury, does not mitigate the injury caused to the plaintiff.
2.3. Despite the plaintiff's complaints, the children continued to play and the plaintiff’s
wife was eventually injured as a result of a cricket ball being hit into their house. She
suffered serious injury and permanent loss of sight in her left eye as a result of this
incident. This has caused immense emotional and physical distress to both the plaintiff
and his wife. They had to incur medical expenses of 1.5 lakh rupees to treat the injuries.
Moreover, the wife of the plaintiff is now left with scars on her face, which has caused
her emotional distress and loss of dignity. When asked for reimbursement for the injury
caused, the defendant blatantly refused.
2.4. It has been laid down in Ryley vs. Lafferty3, “While it is true that parents are not liable
for the tort committed by their minor children without their consent and knowledge,
yet the principle applicable to the facts alleged is that the parents are liable if it appears
that they knew that the child was guilty of committing the particular kind of tort
habitually and encouraged the child, or made no effort to correct him (as alleged in the

3
Ryley vs. Lafferty 45 F.2d 641

2
 present case). Under such circumstances, the child’s tort was committed with the
parents’ knowledge and implied acquiescence, rendering the parents liable without
proof of their actual knowledge of the tort sued upon. Having full knowledge of their
child’s habits, traits, and disposition, would constitute assent and participation on the
part of the parents in the tort alleged and if so, it would be regarded as negligence upon
the parents’ part.”
2.5. While the minor would be responsible for the tort of nuisance, which can be defined
as “an act which gives rise to unlawful, unwarranted or unseasonable annoyance or
discomfort to the plaintiff and which results in damage to the property of the plaintiff
or interfere with his use and enjoyment of his land”, the defendant would be liable for
the act of negligence.
2.6. Norton vs. Payne4 stated that “while a minor of tender years may be doli incapax, a
minor doli capax is liable for his torts; and a parent may also be liable for negligence
in causing or not restraining the child’s dangerous habits.”
2.6.1. The defendant’s child was possessed of the habit of striking the ball while
playing cricket, into the property of the plaintiff.
2.6.2. The defendant had knowledge of the child’s propensity rendering him liable for
the acts of the child.
2.6.3. Having knowledge of this habit, the defendant did not use such care as
ordinarily prudent persons would have used to prevent any injury to the plaintiff’s
wife.
2.6.4. While it is true that the defendant did not actually participate in the particular
habit of the child, no one could be so familiar with the habit of the child of that
age as the parent, and thus the parent should be liable for the habit of the child of
which they have knowledge and take no steps to correct or restrain. It is that which
constitutes negligence on part of the parent.
It is thus, humbly submitted that the defendant be held liable to pay for the requisite damages.

4
Norton vs. Payne 154 Wn. 241

3
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully prayed before the Hon’ble Supreme Court of India, that it
may be pleased to
(1) Hold that the defendant is liable for the act of his son, amounting to negligence and
leading to the injury caused to the plaintiff’s wife.
(2) Hold the defendant liable to pay for the damages caused amounting to Rs. 1.5 lakh
rupees towards medical expenses, Rs. 15,000 for the broken glass window and also a
compensation of Rs. 5 lakhs for the permanent loss of sight.
And pass any other order that it may deem fit in the ends of justice, equity, and good conscience.

Date: 13th February, 2023 Counsel No. 2096-P

Place: Goa (Counsel for Plaintiff)