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[MEMORIAL FOR APPLICANT]
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
[MEMORIAL FOR APPLICANT]
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
- Statement of Facts
- Statement of Issues
- Summary of Arguments
- Arguments Advanced
- Prayer**
[MEMORIAL FOR APPLICANT]
➢ 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:
➢ 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
Books and Articles
Statues and Internet Links
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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
LIST OF ABBREVIATIONS
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FACTUAL BACKGROUND
- 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.
- 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”.
- 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).
- 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. STATEMENT OF FACTS
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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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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. Lothian^1 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. Lothian^2 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. Lothian^3 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. Fletcher^4.
(^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).
- (^) Bella vs. Aurora Air, (Or. 1977).
- (^) Crowhurt vs. Emerson Burriel Board All ER (1878)
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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 liability^9 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 liability^10 are: A. As stated by BLACKBURN^11 , 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 (^11) ibd
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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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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.
- Rylands vs. Fletcher could be used to obtain damages for personal injury.
- 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)
PRAYER
