BEFORE

THE HONOURABLE SUPREME COURT OF INDIA

(Under Article 136 of Constitution of India)

KALYAN…….………..……………………………………PETITIONER

Vs.

DINESH …………………………………………………………….RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

1.LIST OF ABBREVIATIONS……………………………………………………….. 1
2.INDEX OF AUTHORITIES………………………………………………………….3
3.STATEMENT OF JURISDICTION………………………………………………….8
4.STATEMENT OF FACTS……………………………………………………………..9
5.STATEMENT OF ISSUES……………………………………………………….……10
6.SUMMARY OF ARGUMENTS……………………………………………………….11
7.ARGUMENTS ADVANCED………………………………………………………….12
8.THE PRAYER ……………………………………………………………………….…23
 INDEX OF AUTHORITIES

STATUES
1. R I C K A R D S V L O T H I A N : P C 1 1 F E B 1 9 1 3 [1913] AC 263, [1913]
UKPC 1
2. Transco plc v Stockport MBC [2004] 2 AC 1

3. 1994 Cooper v. Horn, 248 Va. 417, 448 S.E.2d 403

.
4. 1951 Portsmouth v. Culpepper, 192 Va. 362, 64 S.E.2d 799.

5. 1946 Southern Ry. v. Jefferson, 185 Va. 384, 38 S.E.2d 334.

6. Giles v Walker (1890) 24 QBD 656

7. Peters v Prince of Wales Theatre [1943] KB 73

8. Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53

9. 1974 M.W. Worley Constr. Co. v. Hungerford, Inc., 215 Va. 377, 210 S.E.2d 161.

10. Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] SGHC 73.
 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

Legal databases
1. Manupatra

2. Law octopus

3. Hein online

4. Lexus nexus
 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.Law of Torts alongwith Consumer Protection Act and compensations under Motor
Vehicles Act2016 by Dr. S.K. Kapoor
 STATEMENT OF JURISDICTION

The Appellants humbly submits this memorandum for appeal filled under
this Honourable Court under Article 136 of Constitution of India.
( Which state Supreme Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India)
 STATEMENT OF FACTS

1. Mr. Dinesh 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. Dinesh 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. Dinesh 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. Dinesh 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. Dinesh
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.
 STATEMENT OF ISSUES

ISSUE 1
1.WHETHER THE RESPONDENT HAD ANY MENSREA TO CAUSE MISFORTUNE
TO THE PLAINTIFF.

ISSUE 2
2.WHETHER DEFENDANT HAD USE OF NATURAL LAND.

ISSUE 3
3.WHETHER THE PLAINTIFF COULD DETTER THE EFFECTS OF THE WEED
KILLER.
 SUMMARY OF ARGUMENTS

ISSUE 1
1.WHETHER THE RESPONDENT HAD ANY MENSREA TO CAUSE MISFORTUNE
TO THE PLAINTIFF.
It is evident that the defendant had no intention to cause misfortune to the plaintiff and could
not have foreseen a simple and an obvious act of using a weed killer for the weed that was
growing and damaging his garden.

The defendant clearly did not make it rain and and slid the water across the fence, it was
nothing but an act of God which led to the misfortune for which the defendant cannot be held
liable.

Why is it that only the defendant is being held liable to make sure that no substance could
have passed through the fence, the plaintiff could have also taken measures to ensure no
existence of such passage.

ISSUE 2

2.WHETHER DEFENDANT HAD USE OF NATURAL LAND.

Under the first element, the non-natural use of the land suffices only when a special use of the
land brings with it an increased danger to others. It must not be the ordinary use of the land or
such a use that is proper for the general benefit of the community. Further, if the damage
arising from the use of the land is reasonably expected by the occupier, it will not be regarded
as non-natural. For instance, in the Tesa Tape case, where the defendant stacked containers
on a piece of land that was not meant for this purpose and its unexpected collapse resulted in
the damage of the plaintiff’s property, this was considered to be an unnatural use of the land.

Rickards v Lothian

where Lord Moulton sated:

It must be some special use bringing with it increased danger toothers and must not
merely be the ordinary use of the land or such a use as is proper for the general benefit
of the Under the first element, the non-natural use of the land suffices only when a
special use of the land brings with it an increased danger to others. It must not be the
ordinary use of the land or such a use that is proper for the general benefit of the
community. Further, if the damage arising from the use of the land is reasonably
expected by the occupier, it will not be regarded as non-natural. For instance, in the
Tesa Tape case, where the defendant stacked containers on a piece of land that was not
meant for this purpose and its unexpected collapse resulted in the damage of the
plaintiff’s property, this was considered to be an unnatural use of the land. Community
ISSUE 3
3.WHETHER THE PLAINTIFF COULD DETTER THE EFFECTS OF THE WEED
KILLER.
It is clearly mentioned in the facts that the weed killer was washable if washed thoroughly.
Therefore it is significant that the plaintiff could have also deterred the effects of the weed
killer had the vegetables been washed. Which is clearly not the case as if the plaintiff had
done so the poisonous effect of the weed killer would have watched of too.

and if the degree of the weed killer was so poisonous then why did the vegetables not rot?
Also the degree of the weed killer is nowhere mentioned as the facts are silent on how
poisonous the weed killer was. Just because the word poisonous is mentioned the plaintiff has
taken the issue off the roof because being a weed killer of any kind it will contain some
amount of poison because it is a weed killer.
 ARGUMENTS ADVANCED

ISSUE 1
1.WHETHER THE RESPONDENT HAD ANY MENSREA TO CAUSE MISFORTUNE
TO THE PLAINTIFF.
An act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse
in Transco plc v Stockport Metropolitan Borough Council as describing an event:

which involves no human agency

which is not realistically possible to guard against
which is due directly and exclusively to natural causes and
which could not have been prevented by any amount of foresight, plans, and care.
Cooper v. Horn,.
Earthen dam broke causing damage to property owners downstream. Defendants alleged
extraordinary flood is act of God. To relieve one of liability because flood is act of God, it
must appear that act of God was sole proximate cause of injury. In this instance human
agency was element, since there was evidence of negligence in terms of construction of dam.

Portsmouth v. Culpepper,
Act of the divine or of God defined as any accident due to natural cause directly and
exclusively without human intervention such as could not have been prevented by any
amount of foresight.

Southern Ry. v. Jefferson,

Floods in this case were so unusual as to qualify as acts of God.

Acts of God provisions, also called “Force Majeure” clauses, relate to events outside human
control, like flash floods, earthquakes, or other natural disasters. Generally, these provisions
eliminate or limit liability for injuries or other losses resulting from such events. In contract
law, an act of God may be interpreted as a defence against breach for failing to perform based
on the concepts of impossibility or impracticality as in torts we have it as an general defence .
ISSUE 2
2.WHETHER DEFENDANT HAD USE OF NATURAL LAND
The meaning of non-natural use of land was explained in the case of
Rickards v Lothian
where Lord Moulton sated:
It must be some special use bringing with it increased danger toothers and must not
merely be the ordinary use of the land or such a use as is proper for the general benefit
of the Under the first element, the non-natural use of the land suffices only when a
special use of the land brings with it an increased danger to others. It must not be the
ordinary use of the land or such a use that is proper for the general benefit of the
community. Further, if the damage arising from the use of the land is reasonably
expected by the occupier, it will not be regarded as non-natural. For instance, in the
Tesa Tape case, where the defendant stacked containers on a piece of land that was not
meant for this purpose and its unexpected collapse resulted in the damage of the
plaintiff’s property, this was considered to be an unnatural use of the land. community

The plaintiff must show that the damage suffered was foreseeable by the defendant,
and was caused by the defendant, to the plaintiff. Foreseeability is often used by the
court as a limiting factor to liability. Otherwise, businessmen and commonfolk alike run
the risk of attracting liability for damage caused that could not have been prevented
notwithstanding the utmost and greatest care taken.
Damage caused due to natural use of land:- Where the defendant is able to prove before
the court that he made natural use of his land, he will be exempted from the rule of
strict liability applying on him.

Case: Giles vs. Walker, (1890) 24 QBD 656- In the defendant’s land, there was
spontaneous growth of thistle plants. The defendant did not check the growth of this
undesired vegetation which was extending to the plaintiff’s land also only to cause him
annoyance and damage. However, the defendant was able to prove that growing of
plants is a natural use of land and therefore he won the case against the plaintiff.

Consent of the Plaintiff:- When the plaintiff has either expressly or impliedly consented
to the presence of a source of danger and also there has been no negligence on the
defendant’s part, the defendant will not be held liable. It is basically the defence of
‘Volenti non fit injuria’ taken by the defendant in the court.
Case: Peters vs. Prince of Wales Theatre Ltd. Birmingham, (1942) 2 ALL ER 533- The
plaintiff took on rent a shop in the defendant’s premises after full knowledge of the fact
that the defendant had a theatre and rehearsal room attached to the same premises. The
theatre had a water storage mechanism to douse fire in case of an emergency.
Unfortunately, the water container burst due to excessive frost and the water leaked
into the plaintiff’s shop thereby damaging his goods. He sued the defendant for
payment of damages suffered by him. The court held the defendant not liable as the
plaintiff had impliedly consented to the presence of the dangers of a water storage tank
situated right next to his shop by taking the defendant’s premises on rent.

ISSUE 3
3.WHETHER THE PLAINTIFF COULD DETTER THE EFFECTS OF THE WEED
KILLER.
Cambridge Water v Eastern Counties Leather [1994]
Chemicals which were stored by the defendants seeped into the underground water supply
used by the claimant. At the time the chemicals were accumulated the amount of
contamination caused to the water supply was within acceptable standards. Some time later,
the law was changed and the level of contamination could no longer be tolerated. The change
in the law could not have been foreseen by the defendants who were found not to be liable.
The issue of foreseeability has been discussed in the later case of Transco plc v Stockport
Metropolitan Council [2003] which enabled the House of Lords to review the scope and
application of the tort.

It is clearly mentioned in the facts that the weed killer was washable if washed thoroughly.
Therefore it is significant that the plaintiff could have also deterred the effects of the weed
killer had the vegetables been washed. Which is clearly not the case as if the plaintiff had
done so the poisonous effect of the weed killer would have watched of too.
and if the degree of the weed killer was so poisonous then why did the vegetables not rot?
Also the degree of the weed killer is nowhere mentioned as the facts are silent on how
poisonous the weed killer was. Just because the word poisonous is mentioned the plaintiff has
taken the issue off the roof because being a weed killer of any kind it will contain some
amount of poison because it is a weed killer.

1974 M. W. Worley Constr. Co. v. Hungerford, Inc.

Blasting is intrinsically dangerous and ultrahazardous activity. Rule of absolute or strict

liability for direct damage to neighboring property, or direct injury to persons thereon,
adopted with exception for persons harmed who had reason to know risk and who by virtue
of privity of contract take part in it. Employer of independent contractor employed to carry on
blasting is taking part in it.
 PRAYER

In the light of the issue raised, arguments advanced and authorized cited, the counsel for the
petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare two
points

(1) The Defendant had no intention to harm the plaintiff .

(2) That the contention of plaintiff are not valid.

And pass any order this Hon’ble court may deem fit in the interest of equity, justice
and good conscience.

And for this act of kindness, the counsel for the petitioner shall duty bond forever
Pray.

Sd/-

( Counsel for Respondent)