DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

3RD NOVICE MOOT COURT COMPETITION, 2015-2016

BEFORE

THE HONOURABLE SUPREME COURT OF INDIA

(Under Article 136 of Constitution of India)

KALYAN&ANR. …………………………………………APPELLANTS

Vs.

PAVAN …………………………………………………………….RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANTS

 3rd NOVICE MOOT COURT COMPETITION 2015

TABLE OF CONTENTS

1. Index of Authorities

i. List of Abbreviation

ii. Table of Cases

iii. Statutes

iv. Books and Articles

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of Issues

5. Summary of Arguments

6. Arguments Advanced

7. Prayer

2|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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

3|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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

Statutes

1. The Insecticides Act, 1968

2. The Personal Injuries (Emergencies Provisions) Act, 1962

3. Insecticides Rules, 1971

4|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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

5|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

STATEMENT OF JURISDICTION

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

6|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

STATEMENT OF FACTS

1. Mr. Pavan is a software engineer working at M/s Satyam in Visakhapatnam. He resides

in the posh locality of MVP Colony. His neighbour is Mr. Kalyan, a businessman, there
houses are adjacent to each other and their gardens are separated by a wooden fence.
Mr. Pavan has a hobby of raising different types of flowering plants in his garden and
had a heart shaped flower bed adjacent to the wooden fence, on the other hand Mr.
Kalyan was fond of growing vegetables which lay alongside the fence.

2. In the rainy season a lot a weed started growing in and around the flower bed, to get rid
of them Mr. Pavan purchased a powerful weed killer called ‘Slaughter’. Since it was a
poisonous substance there were express warnings on the canister which stated that
‘Slaughter was poisonous to humans and also clearly stated “wash hands thoroughly
after use”.

3. Mr. Pavan sprayed ‘Slaughter’ liberally on this flower beds. However, later that day,
rain washed some of the weed killer under the fence onto Kalyans’ vegetable patch
which currently consisted of a patch of lettuce. The crop were eventually consumed by
the Kalyan Family. The following day Mr. Kalyan’s six year-old son, Akira Anand,
began to complain of stomach pains and was later admitted into the hospital due to his
deteriorating condition. The medical evidence conclusively traced the cause of the
illness to the weed killer.

4. An action was brought on behalf of Akira Anand by Mr. Kalyan against Mr. Pavan
based on the rule laid down in Rylands v. Fletcher. At the first instance the Lower Court
held that the claim failed on the grounds that the use of weed killer was a natural use of
the land and that the rule in Rylands v. Fletcher could not be used to obtain damages.
A further appeal in the High Court was also dismissed, however, Mr. Kalyan was
granted leave to appeal in the Supreme Court.

7|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

STATEMENT OF ISSUES

1 WHETHER THE USE OF WEED KILLER 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?

8|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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.

9|Page
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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.

10 | P a g e
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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 7 ban on sale, use and distribution
of 40 insecticides that were harmful to humans was appealed by Dr. Ashok. It was held

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

11 | P a g e
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

that “if the Central Government or State Government is of the opinion that the 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. Lothian11 there 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

12 | P a g e
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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. Subramanian14 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

13 | P a g e
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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. Fletcher15. 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)

14 | P a g e
[MEMORIAL FOR APPELLANTS]
 3rd NOVICE MOOT COURT COMPETITION 2015

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. 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 Apellants)

15 | P a g e
[MEMORIAL FOR APPELLANTS]