TC -

INDIAN INSTITUTE OF LEGAL STUDIES

INTRA MOOT COURT COMPETITION
2018

IN THE HON’BLE SUPREME COURT

OF INDIA

UNDER ARTICLE 133 OF

CONSTITUTION OF INDIA

MR. SMITH
v.
MR. BILLY

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONER

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 TABLE OF CONTENTS

LIST OF ABBREVATIONS 04
INDEX OF AUTHORITIES 05
STATEMENT OF JURISDICTION 06
STATEMENT OF FACTS 07
ISSUES PRESENTED 08

SUMMARY OF
ARGUMENTS 09
ARGUMENTS ADVANCED 11
PRAYER 15

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 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. M.P. Electricity Board v. Shail Kumar, A.I.R. 2008 S.C. 46

4. Ponting v. Noakes, (1849) 2 Q.B. 281

5. Rickards v. Lothian, (1913) A.C. 263

6. Rylands v. Fletcher (1868) L.R. 3 H.LL 330

7. T.C. Balakrishnan Menon v. T.R. Subramanian, A.I.R. 1968 Kerala, 151

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 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

ART ARTICLE

CO COMPANY

SC SUPREME COURT

SCC SUPREME COURT CASES

V. VERSUS

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 INDEX OF AUTHORITIES

STATUTE REFERRED:
The Constitution of India, 1950

1. The Insecticides Act, 1968

2. The Personal Injuries (Emergencies Provisions) Act, 1962
3. Insecticides Rules, 1971

BOOKS REFERRED:
1. Dr. Bangia R.K., law of torts,24th edition2017
2. Ramaswamy Iyer’s .,The law of torts,10th edition
3. Dr. Pandey J.N.,Constitutional law of India,52nd edition2015

WEBSITES REFERRED:

1. https://en.m.wikipedia.org

2. http://indiankanoon.org

3. indianlawcases.com

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 STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for appeal filled under this
Honourable Court under Article 133 and Article 134-A of the constitution of
india which states Appellate jurisdiction of Supreme Court in appeals from
High Courts in regard to civil matters.

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 STATEMENT OF FACTS

1. Billy and smith are neighbours with a wooden fence separating their gardens. Billy’s
garden has flower beds adjacent to the fence while Smith garden has vegetables adjacent
to the fence.

2. Mr. Billy purchased a powerful weed killer called ‘Hit-Fit’. Since it was a poisonous
substance there were express warnings on the canister which stated that ‘Hit-Fit’ was
poisonous to humans and also clearly stated “wash hands thoroughly after use”.

3. Mr. Billy sprayed ‘Hit-Fit’ liberally on this flower beds. Later that day, rain washed some
of the weed killer under the fence onto Smith’s vegetable patch which currently consisted
of a patch of lettuce. The crop were eventually consumed by the Smith’s Family. The
following day Mr. Smith’s six year-old son, Michael, 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 Michael by Mr. Smith against Mr. Billy 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. Smith was granted leave to appeal in
the Supreme Court.

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 ISSUES PRESENTED

1. WHETHER THE USE OF WEED KILLER WAS A NON-NATURAL

USE OF BILLY’S LAND?

2. WHETHER ALL ELEMENTS OF STRICT LIABILITY WERE

SATISFIED OR NOT?

3. WHETHER THE RULE OF RYLANDS V. FLETCHER COULD BE

USED TO OBTAIN DAMAGES FOR PERSONAL INJURY?

4. THE REJECTION OF THE CLAIM AGAINST THE

MANUFACTURERS BY BOTH THE COURT BELOW WAS
WRONG IN LAW.

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 SUMMARY OF ARGUMENTS

1. The use of weed killer was a non-natural use of Billy’s land.

The petitioner submits that using highly poisonous weed killer was non-natural use of
Billy’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. 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 Billy’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’.

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. Billy is sufficient to apply the rule of strict liability for damages
against personal injury in the instant case. In case this case Smith’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 Michael due to respondent’s negligence. Hence, rule of Rylands v. Fletcher
will be used to obtain damages.

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 4. The rejection of the claim against the manufacturers by both the courts
below was wrong in law.
The manufactures should be held liable under the Insecticide Act, 1968 and Insecticide
Rule,1972.

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 ARGUMENT ADVANCED

1. The use of weed killer was a non natural use of land.

The petitioner humbly states that the use of weed–killer was a non-natural use of land. The
non-natural use of the land suffices only when a special use of the land brings with it an
increased danger to others.

According to Mr Justice Blackburn the use of land in a non natural manner could be defined
as: “We think the true rule of law is that the person who, for his own purposes, brings on his land
and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his
peril, and if he does not do so, is prima facie answerable for all damages which is the 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 safe. Non-natural use of land is an
essential element in rule of strict liability1. 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 land.
Bringing and liberally using a highly poisonous weed killer in one’s garden is non-natural use of
land.

There was express (written) warning on the canister stating that, “Hit-Fit was poisonous to
humans” and also “Wash hand thoroughly after use”, which makes Hit-Fit a 1st class insecticide
recognized as highly risky substance as per Insecticide Act, 1968.

In case of Crowhurst v. Amersham Burial Board2, 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, 19683.

1
Rylands v. Fletcher (1868) L.R. 3 H.LL 330
2
(1878) 4 Ex. D. 5
3
The Insecticide Act,1968 (Act No.46 of 1968)

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2. ALL ELEMENTS OF STRICT LIABILITY WERE SATISFIED:?

All the elements of Strict Liability were applicable in toto.

The first element is some dangerous thing must have been brought by a person on his land.

According to this rule, the liability for the escape of a thing from one’s land arises provided the
thing collected was a dangerous thing, i.e., a thing likely to do mischief if it escapes. In case of
Ponting v. Noakes, 18944 leafs of a Yew tree were considered as dangerous thing. In Rylands v.
Fletcher, the thing so collected was a large body of water. Here, using of a dangerous weed
killer which is also poisonous shows that first element is satisfied.

The second element is the thing thus brought or kept by a person on his land must escape.

For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage
must escape to the area outside the occupation and control of the defendant.

In case of Rickards v. Lothian5 there was escape of water due to blockage of wash basin.
Similarly in this case Mr. Billy’s poison escaped his land and was consumed by Mr. Smith’s son.

In law a term called Reasonable Forseability could be reliable upon this case which states that,
the. 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. Billy could
foresee the result of liberally using poisonous weed killer in rainy season i.e. escape.

The third element is that it must be non-natural use of 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.

4
(1849) 2 Q.B. 281
5
(1913) A.C. 263

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 3. THE RULE OF RYLANDS V. FLETCHER COULD BE USED TO
OBTAIN DAMAGES FOR PERSONAL INJURIES:

The Petitioner humbly submits that the rule of Ryland v. Fletcher could be used to obtain
damages for Personal Injuries.As per Personal Injuries (Emergency Provisions) Act, 1962
section 2(6), ‘Personal Injury’ is defined as physical or mental injury6.

In case of T.C. Balakrishnan Menon v. T.R. Subramanian7 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.

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. Fletcher. In the instant case, Mr.
Billy 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 Smith’s
vegetable patch.

Therefore, the rule of strict liability will be applied to gain application for personal injuries in
this case.

4. The rejection of the claim against the manufacturers by both the courts
below was wrong in law:

The petitioner humbly submits that the Manufacturer’s should also be held liable on grounds of
Insecticides Act, 1968.Insecticide Act also define weedicides and fungicides as insecticides. 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) 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 toxicity8.

6
Personal Injuries (Emergency Provisions) Act, 1962
7
A.I.R. 1968 Kerala, 151
8
Insecticides Rule, 1971

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In case of Dr. Ashok vs. Union of India and others 9 ban on sale, use and distribution of 40
insecticides that were harmful to humans was appealed by Dr. Ashok. It was held 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.

A manufacturer must provide basic instructions or warnings to consumers when it comes to

potential dangers associated with a product's use -- both hazards the manufacturer knows of, an
The disclaimer must be reasonable, clear, and explicit, and it must provide specific information
on the known d those the manufacturer could reasonably be expected to have knowledge of.
health risks associated with the drug.

And in this case the manufacturer will be held liable for personal injury due to sell of dangerous
product.

9
AIR 1997 SC 2298

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 PRAYER

WHEREFORE IN THE LIGHT OF FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED, REASONS GIVEN AND AUTHORITIES CITED,
THIS HONOURABLE COURT MAY BE PLEASED TO:

The Compensation Amount to be awarded. All of which is respectfully affirmed

and submitted.

AND PASS ORDER, DIRECTION, OR RELIEF THAT MAY DEEM FIT IN

THE INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE.

FOR WHICH, THE COUNSELS SHALL FOREVER PRAY

Counsels for the Petitioner

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