1089

IN THE
HONOURABLE HIGH COURT OF LALITPUR
AT LALITPUR, XYZ

Writ Petition No: XXX/2013

[UNDER SECTION 226 OF THE CONSTITUTION OF INDIA]

IN THE MATTER OF:

CHRISTEENA....APPELLANT
v.
MUNICIPAL CORPORATION OF
LALITPUR...RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
INDEX OF AUTHORITIES..........................................................................................................iii
STATEMENT OF JURISDICTION...............................................................................................iv
STATEMENT OF FACTS...............................................................................................................v
ISSUES FOR CONSIDERATION....................................................................................................
1. WHETHER

A TORT OF NEGLIGENCE LEADING TO BODILY INJURY HAS BEEN COMMITTED

AGAINST THE APPELLANT?..........................................................................................................VI

2. WHETHER

THE

RESPONDENTS

ARELIABLE TO THE

APPELLANT

FOR THE AFOREMENTIONED

TORT, IF SO COMMITTED?............................................................................................................ VI

SUMMARY OF ARGUMENTS...................................................................................................vii
ARGUMENTS ADVANCED..........................................................................................................1
1.

TORT OF NEGLIGENCE LEADING TO BODILY INJURY HAS BEEN COMMITTED AGAINST

THEAPPELLANT.................................................................................................................1

1.1 The Appellant is entitled to claim damages for the tort committed against her.....1
1.2 The Appellant did not voluntarily assume the risk (Volenti Non fit Injuria) 2
2. THE RESPONDENTSARELIABLE

TO THE

APPELLANT

FOR THE AFOREMENTIONED TORT

COMMITTED.......................................................................................................................

..3

2.1 The Respondents owed a duty of care to their invitees, including the Appellant..............3
2.2 Res Ipsa Loquitur-The Thing Speaks For Itself.................................................................3
2.3 Liability of the insurer...4
PRAYER......................................................................................................................5

INDEX OF AUTHORITIES
BOOKS
Bryan.A.Garners, Blacks Law Dictionary, 8th Ed., p.1061.--------------------------------------------1
Ramaswamy Iyers The Law Of Torts, 10th Ed., 2007, pp. 48-49--------------------------------------1
Ratanlal and Dhirajlals The Law of Torts, 26th Ed, 2012, pp.474, 95, 619-----------------------1,2,3

CASES
Byrne v Boadle [1863] 159 Eng. Rep. 299 ----------------------------------------------------------------4
Klaus Mittelbachert v East India Hotels Ltd[1997] AIR Delhi 207 ----------------------------------4
Pushpaben Jitendrakumar Shah v. Union of India [2004] AIR Guj 370 -----------------------------3
Rajan v. Union of India[1992] AIR Kerala 230 ---------------------------------------------------------3
Scott v London Katherine Dock Co[1865] 3 H. &C. 596 ----------------------------------------------3
Smith v Baker [1891] AC 325 ------------------------------------------------------------------------------2
The Municipal Board, Jaunpur v.Brahm Kishore and Anr[1978]AIR All 168 ----------------------3
Thomas v Quartermaine [1887] 18 QBD 685 -----------------------------------------------------------2

STATEMENT OF JURISDICTION

The Counsel for the Appellant most respectfully submits that this Honourable High Court
has the requisite territorial, pecuniary and subject matter jurisdiction to admit and
adjudicate the present matter under Section 226 of the Constitution of India.

STATEMENT OF FACTS

The Counsel for the Appellant most humbly and respectfully showeth that:
-IThe Appellant, Mrs. Christeena, a seventy-eight-year old widowwas walking to the town hall for
paying her water bill.She intended to turn in and go up the entrance walkway of the town hall.
But she was confronted by a string of Christmas lights which town employees had stretched
across the walkway at a height of about sixteen to twenty inches.
-IIIt was nearly impossible for her to view the lights before entering the walkway because of the
presence of a box hedge bordering the entrance.
-IIIShe hesitated momentarily, but then decided to step over it. She got one foot over, but her other
foot caught the string, causing her to fall and suffer a serious fracture on her arm.
-IVIn a conversation with the Defendants Counsel, the Appellant says that she thought she could
make it to the other side of the wires, for if she had not thought so, she would never have started.
-VThe sub-judge decreed the suit in favour of Mrs. Christeena against the town hall and the insurer.
The Respondents appealed in The District Court of Lalitpur, and the judgment was reversed and
rendered for the Respondents.
Hence, the present writ petition before this Honourable Court.

ISSUES FOR CONSIDERATION

1. WHETHER

A TORT OF NEGLIGENCE LEADING TO BODILY INJURY HAS BEEN COMMITTED

AGAINST THE APPELLANT?

2.

WHETHER

THE

RESPONDENTS

ARE

AFOREMENTIONED TORT, IF SO COMMITTED?

LIABLE

TO

THE

APPELLANT

FOR

THE

SUMMARY OF ARGUMENTS
1. WHETHER

A TORT OF NEGLIGENCE LEADING TO BODILY INJURY HAS BEEN

COMMITTED AGAINST THE APPELLANT?

The Respondents are liable for the tort of Negligence committed against the Appellant as all
the three components constituting negligence are satisfied in the instant case. There was a legal
duty of care owed towards the Appellant, because the Appellant was an invitee to the premises of
the Respondents. There was a breach of this duty when the accident of the Appellant tripping
through the Christmas lights occurred. There was consequential damage caused to the Appellant
as she suffered bodily injury, a serious fracture on her arm, due to the accident.
1.1Whether the Appellant is entitled to claim damages for the tort committed
against her?
A person suffering from injuries caused by negligent acts of another is liable to be compensated
for the said injuries. As the commission of a tort of negligence has been established above, the
Appellant is liable to claim compensation for such an act against her.
1.2 Whether the Appellant voluntarily assumed the risk (Volenti Nonfit
Injuria)?
The conversation between the Appellant and the Respondents Counsel shows that the act of
stepping across the lights did not even pose a risk to the Appellant. Also, the application of the
maxim Volenti Non fit Injuria does not depend upon any valid contract, but upon the competence
of the decision making capacity of the person at the time the consent was given.
2. WHETHER

THE

RESPONDENTS

ARE

LIABLE

TO

THE

APPELLANT

FOR

THE

AFOREMENTIONED TORT, IF SO COMMITTED?

The Respondents are liable to the Appellant for the tort of negligence committed against her as
they breached the duty of care that they owed to the Appellant. The Appellant is an invitee to the
premises of the Respondents and should rightfully be owed a duty of care by the Respondents.

2.1 Whether the Respondents owed a duty of care to their invitees, including
the Appellant?
The invitee means a person invited to the premises by the owner or occupier for the purposes of
business or of material interests. The occupier owes a duty of care to his invitees. Since the
Appellant was an invitee under this definition, it can be seen that her right to care in the premises
of the Respondents was breached.
2.2 Whether the principle of Res Ipsa Loquitur can be applied in this context?
The principle of Res Ipsa Loquitur, meaning, The Thing Speaks for Itself, can be applied here,
The very act of the Respondents, of hanging wires of lights sixteen inches above the ground, at a
height where it is reasonably foreseeable that it would cause injury to anyone who passes by,
especially when they cannot be seen before entering the walkway itself, is irresponsible, reckless,
and shows clear negligence on the Respondents part.
2.3 Whether the insurer can be held liable?
The liability of the town corporation is just as much as the liability of the insurer. The liability of
the insurer is determined by the principle of joint tortious liability as seen in detail in this
memorial.

ARGUMENTS ADVANCED
1. A TORT OF NEGLIGENCE LEADING TO BODILY INJURY HAS BEEN COMMITTED AGAINST
THE APPELLANT.

The Counsel for the Appellant most humbly submits that the Respondent is liable for the tort of
Negligence committed against the Appellant.
Negligence is the failure to exercise the standard of care that a reasonable prudent person would
have exercised in a similar situation. 1Negligence as a tort is a breach of a legal duty to take care
which results in damage, undesired by the Respondent to the Appellant. Thus there are three
components of Negligence:
(i)
(ii)
(ii)

legal duty owed by the tort-feasor to the victim,

a breach of such a legal duty, and
Consequential damage.2

There is a legal duty of care that the Respondents owed to the Appellant, as shown in detail later
in this memorial. The occurrence of the accident can be attributed only to the negligent hanging
of Christmas lights at a height of sixteen to twenty inches. This shows a breach of that legal duty
of care. As a result of the accident, the Appellant suffered serious injury, which is consequential
damage.3
Thus it can be seen that the components of negligence are fulfilled and it is established that a tort
of negligence resulting in a bodily injury was committed against the Appellant.
I.1 The Appellant is entitled to claim damages for the tort committed against her.

The Appellant contends that there has been a case of actionable negligence committed against
her. Actionable negligence consists of neglect in the use of ordinary care or skill towards a
person to whom the Respondents owe the duty of observing ordinary care or skill, by which
1Bryan.A.Garners, Blacks Law Dictionary, 8th Ed., p.1061.
2Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.474.
3RamaswamyIyersThe Law Of Torts, 10th Ed., 2007,pp 48-49.

neglect the person has suffered injury to her person or property. 4 Also, if some physical injury
has been caused by negligence, the victim can recover damages not simply for her injury in its
present state but also for the risk that the injury may worsen in the future and for the present
ongoing anxiety that may happen.5
In the instant case, the Appellant suffered bodily injury due to the negligent acts of the
Respondents and thus a case for actionable negligence is made out. Hence, the Appellant is
entitled to damages for the tort of negligence committed by the Respondents.
1.2 The Appellant did not voluntarily assume the risk (Volenti Non fit Injuria)
The colloquy between the Appellant and the Respondents Counsel shows that the Appellant did
not consider the act of stepping across the wires as something that is likely to cause injury. She
had miscalculated confidence that she would make it to the other end of the wires without injury.
Without awareness of the risk, the question of voluntarily subjecting oneself to risk does not
even rise.
Also, the application of the maxim Volenti Non fit Injuria does not depend upon any contract of
consent, but upon the competence of the decision making capacity of the person at the time the
consent was given.6 The Appellant, a septuagenarian widowed woman cannot step over
Christmas lights, as casually as a younger adult. Also consider that she suddenly encountered the
lights suspended near the floor. The very sight must have alarmed here, given that there was no
physical possibility of her viewing the lights before entering the walkway. She hesitated
momentarily, and in that moment of confusion, the Appellant was in a startled state of mind, and
unfit to make an informed and mindful decision of consent.
Even assuming, but not conceding, that the Appellant knew of the risk that the act of stepping
across the lights posed, the maxim is not scienti non fit injuria, but volenti, as explained in
4Ibid.
5Id at p.475.
6Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.95.

Thomas v Quartermaine.7 In cases such as this, mere knowledge of risk of injury is not consent.
In Smith v Baker8, a workman employed in drilling holes for railway tracks was held entitled to
recover for injury due to a stone falling from crane. It was held that the employers were guilty of
negligence and the employees knowledge of unsafe working conditions was not enough to show
that he consented to take the risk of injury.It is plain that mere knowledge may not be a
conclusive defence. There may be a perception of the existence of the danger without
comprehension of the risk.
2. THE RESPONDENTS

ARE LIABLE TO THE

APPELLANT

FOR THE AFOREMENTIONED TORT

COMMITTED.

The Counsel for the Appellant submits that the Respondents are liable to the Appellant for
the tort of negligence as a duty of care exists between the Respondents and the
Appellant.In the case of The Municipal Board, JaunpurVs.Brahm Kishore and Anr 9 the Plaintiff
was cycling when he was thrown into a pit, which was negligently left unmanned by the
Defendants. It was held that the Defendants were liable to the Plaintiff.
2.1 The Respondents owed a duty of care to their invitees, including the Appellant.

As observed by Justice BalanarayanaMarar in Rajan V. Union of India10, an invitee means a

person invited to the premises by the owner or occupier for the purposes of business or of
material interests. Under this definition, the Appellant was an invitee. This definition was later
upheld in PushpabenJitendrakumar ShahVs. Union of India (UOI) and Ors 11.The Respondents
breached their duty to provide her reasonable care in their premises, by indulging in the
aforementioned negligent act, and thus are liable to the Appellant.
7[1887] 18 QBD 685.
8[1891] AC 325.
9 [1978]AIR All 168.
10[1992] AIR Kerala 230.
11[2004] AIR Guj 370.

2.2 Res Ipsa Loquitur

Res Ipsa Loquitur, literally means, The Thing Speaks For Itself 12. When the accident explains
only one thing and that is that the accident could not have ordinarily occurred unless the
defendant had been negligent, the law raises a presumption of negligence on the part of the
defendant, provided that the event causing the accident is in the control of the defendant.
It is impossible to explain how Christmas lights decorations were suspended by the town hall
employees at a height of sixteen to twenty inches, a height were it was highly foreseeable that
they would cause injury to anyone who passes by. Since the facts speak quite clearly for
themselves, it may be seen that it is up to the Respondents to prove that they were not negligent.
The counsel thus infers that the burden of proof has been shifted from the Appellant to the
Respondents.
The first landmark English Judgment under the Res Ipsa Loquitur maxim was that of
Byrne v Boadle.13In the case of Scott v London Katherine Dock Co14, six bags of sugar fell upon
the head of the Plaintiff when he was at work. In his action against the employer, though it was
unknown as to who was responsible for the negligent act, the employer was held liable on the
basis of Res Ipsa Loquitur, i.e., the very fact that the employer was negligent in keeping the
sugar bags safely, speaks for itself.
2.3 Liability of the insurer
In Klaus Mittelbachertvs East India Hotels Ltd. 15, the Plaintiff suffered paralysis and badly
deteriorating health after he hit his head while diving off the diving board at a five star hotel. The
12Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.614.
13[1863] 159 Eng. Rep. 299.
14[1865] 3 H. &C. 596.
15[1997] AIR Delhi 207.

Honourable Judge R.C. Lahoti, J. held in his judgment that he saw no difference between a five
star hotel owner and insurer so far as the safety of the guest is concerned.

PRAYER
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited
it is most humbly and respectfully prayed before this Honourable High Court of Lalitpur
that it may be pleased to:

Allow the writ petition of the Appellant

Decree the writ petition in favour of the Appellant.
Award the Appellantunliquidated damages of Rs.20,000.

And further grant any other order that this Honourable Court may deem fit in the ends of justice,
equity and good conscience.

Date: 14thAugust, 2013

Place: Lalitpur

Counsel No.1089
Counsel for the Appellant