Download Analysis of Strict Liability in Tort Law: A Case Study of Weed Killer Damage in India and more Assignments Law of Torts in PDF only on Docsity!
[MEMORIAL FOR RESPONDENT]
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 RESPONDENT Name – SHUBHENDU PRAKASH RAI Class – Part V (1st^ Semester) Roll no. – 0001653679
[MEMORIAL FOR RESPONDENT]
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 RESPONDENT]
➢ 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, 23 rd^ 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:
➢ The Constitution of India ➢ Pesticides Act 1968 ➢ Law of Torts
Internet Links:
➢ https://lawtimesjournal.com ➢ www.wikipedia.org ➢ www.indiankanoon.org
Books and Articles
Statues and Internet Links
[MEMORIAL FOR RESPONDENT]
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
[MEMORIAL FOR RESPONDENT] 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
[MEMORIAL FOR RESPONDENT]
ISSUES FOR CONSIDERATION
Issue that is presented via this Special Leave Petition before the Hon’ble Supreme Court of India for discussion and adjudication is as follows:
ISSUES
- Whether the Special Leave Petition is maintainable?
- Whether use of weed killer was Non Natural use of Mr. Jaunga’s Land?
- Whether all the elements of strict liability were satisfied or not?
- Whether Doctrine of Reasonable Foresight is applicable?
[MEMORIAL FOR RESPONDENT] Questions of fact cannot be permitted to be raised unless there is material evidence which has been ignored by the HC or the finding reached by the court is perverse. In Amarchand Sobhachand vs. CIT^4. Further, if the conclusion is based on some evidence on which subsequently a conclusion could be arrived at, no question of law is raised.
2. Whether use of weed killer was Non Natural use of Mr. Jaunga’s Land? 2.1 It is humbly submitted before the hon’ble Supreme Court that the weed killer used by Mr. Jaunga was natural use of land on the ground of which the Lower court rejected the claim and High court dismissed the appeal. Read vs. J. Lyons & Co.^5 In this case, the defendant took control of the management of an ordinance factory where highly explosive shells for the government were made. An explosion inside the factory caused damage to the plaintiff and several others. When plaintiff asked for damages under the principle of strict liability, since there was no negligence on the part of the authorities, THE HOUSE OF LORDS upheld the decision and said that although there was an unnatural use of land, no escape of dangerous thing occurred. Thus, no compensation was granted on part of the defendant. 2.2 Weed killer is used for the purpose of clearing the weeds which is necessary for the good production and growth of plants. Sochacki vs. Sas^6. The defendant was a lodger in the claimant’s house. He lit an open fire in his room and then went out. Unfortunately a spark jumped from the fire and set the room alight. The fire spread to the rest of the house and the claimant brought an action against the defendant based on liability arising under Rylands v Fletcher^7. It was held: The defendant was not liable. Whilst the fire was likely to do mischief if it escaped, the use of an open fire in the claimant’s fireplace was not considered a non-natural use of land. (^4). (^) AIR 1971 SC 720https://indiankanoon.org/doc/1617870/
- (^) Read vs. Lyons [1947] AC 156 House of Lords
- (^) [1947] All ER 344 7. (^) https://www.bailii.org/uk/cases/UKHL/1868/1.html
[MEMORIAL FOR RESPONDENT] Similarly growing of flower beds and plants in garden and to protect them spraying weed killer is a natural use of land. 2.3 In Stull’s Chemicals vs. Davis^8 , “weed killer is not shown to be an inherently dangerous compound in which event the manufacturer cannot be held to strict liability damages resulting from its negligent. 2.4 As per the section 18 of The Insecticide Rule, 1971^9 , it is the obligation toward seller to print caution so it doesn’t conclude that it is non natural use. For the use to be non-natural, it "must be some special use bringing with it increased danger to others, and must not merely by the ordinary use of land or such a use as is proper for the general benefit of community as per.^10
3. Whether all the elements of strict liability were satisfied or not? 3.1 For the application of the rule of strict liability the following essentials were satisfied- (i) Some dangerous thing must have been brought by a person on his land. (ii) The thing thus brought or kept by a person on his land must escape. (iii) It must be a non natural use of land. 3.2 For the rule in Rylands vs. Fletcher to apply, escape is also essential that the thing causing the damage must escape to the area outside the occupation and control of defendant. Nichols vs. Marsland^11 ; the defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land. The defendant was held not liable under Rylands vs. Fletcher as the cause of the flood was an act of God. Similarly in our case Mr.Jaunga sprayed ‘Dhinchak Pooja’ liberally on this flower beds. However, later that day, rain washed some of the weed killer under the fence onto Aaunga’ vegetable patch which currently consisted of a patch of lettuce. (^8) 263 S.W.2d 806 (Tex. Ct. App. – Dallas 1953) (^9) The Insecticide Rule 1971 (^10) Ibid, at 280 (^11) [(1876) 2 ExD 1]
[MEMORIAL FOR RESPONDENT] 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: To dismiss the Special Leave Petition and Reiterate the previous judgments of Lower court and High court. 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 Respondent) PRAYER
