MEMORANDUM ON BEHALF OF THE APPELLANT

BEFORE THE HONOURABLE HOUSE OF LORDS

ORIGINAL JURISDICTION

Civil Appeal No._2014

APPELLANT
RESPONDENT

v.

JOHN RYLAND AND JEHU HERRICKS

THOMAS FLETCHER

BEFORE SUBMISSION TO

THE HONOURABLE HOUSE OF LORDS OF ENGLAND

ROLL NO. L101 & L102

TABLE OF CONTENTS

S.No.

Headings

Page No.
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MEMORANDUM ON BEHALF OF THE APPELLANT

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Index of Authorities
List of Abbreviation
Questions Presented
Statement of Facts
Summary of Pleadings
Detailed Pleading
Prayer For Relief

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INDEX OF AUTHORITIES

MEMORANDUM ON BEHALF OF THE APPELLANT

CASES CITED

B.Govindarajullu v MLA Govindraja Mudalliar AIR 1966 MAD 332

Devender singh v. Mangal Singh AIR 1981 P&H 53
Dumne v. North Western Gas Board (1964)2 QB 806 House Of Lords
Eastern And South African Telegraph Co. Ltd v. Capetown Tramways Co.1902 AC 381
Hoare And Co. v. Mac Alpine 1823(ch-1)167
Jacob Mathew v. State Of Punjab AIR 2005 SC 3180
Magan bhai v. Ishwar bhai AIR 1948 Guj 69
Morgan v. Incorporated Central Council 1936 1 All ER 404
Ramutularam v. Amichand 1968 ACJ 54
Richards v. Lothian 1913 AC 263 Privy Council

LIST OF ABBREVIATIONS

ABBREVIATION

FULL FORM

Honble

Honourable
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MEMORANDUM ON BEHALF OF THE APPELLANT

Company
Co.
Limited
Ltd
Gujrat
Guj
Chapter
Ch
Versus
V.
All India Reporter
AIR

QUESTIONS RAISED

ISSUE 1st
1. Whether the appellants were liable for the action of an Independent contractor?
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MEMORANDUM ON BEHALF OF THE APPELLANT

ISSUE 2nd
2.

Whether the Appellant was liable for the damage under negligence?

ISSUE 3rd
3. Whether the appellant was liable under the principle of strict liability?

STATEMENTS OF FACTS
Appellant constructed a reservoir to supply water for his mill. Appellant employed independent contractors and
engineers to excavate and build the reservoir. While excavating, the Appellant contractors found several old
mine shafts which had been filled with soil. The shafts were actually connected to the defendants mines
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MEMORANDUM ON BEHALF OF THE APPELLANT

through a series of interconnecting tunnels. Days after the reservoirs completion, while it was partially filled,
one of the shafts collapsed, which allowed the reservoir to flood the defendants mines.

SUMMARY OF PLEADINGS
1. Whether the appellants were liable for the action of an Independent contractor?

MEMORANDUM ON BEHALF OF THE APPELLANT

This is humbly submitted before the honble House of Lords that the appellant was not liable for the act of an
independent contractor as the independent contractor is not subject to any such control. He undertakes to do
certain works and regarding the manner in which the work is to be done. He is his own master and exercises his
own discretion. An independent contractor is one who undertakes to produce a given result, but so that in the
actual execution of the work, he is not under the order or control of a person for whom he does it, and may use
his own discretion in things not specified beforehand.
2. Whether the Appellant was liable for the damage under negligence and nuisance?
This is humbly submitted before the honble House of Lords that the appellant were not liable for the damage of
negligence and nuisance because to prove liability under negligence and nuisance there are certain essentials
which are required to be fulfilled to make a person liable and hence in this case no essential can be proved on
appellant part for his act which can make him liable under Negligence and Nuisance.
3. Whether the appellant was liable under the principle of strict liability?
This is humbly submitted before the House Of Lords that appellant were not liable under the principle of strict
liability as to make a person liable under this rule there should be some dangerous thing must have been brought
by a person on his land and secondly it must be a non natural use of land so by taking all this principle the
appellant could not be made liable under strict liability as there was no act or work done in a way which could
make it unnatural use or hazardous thing as collecting water in appropriable quantity for a commercial work
doesnt make it a unnatural use of land.

DETAILED PLEADINGS
1) Whether the appellant were liable for the action of an Independent contractor?
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MEMORANDUM ON BEHALF OF THE APPELLANT

This is humbly submitted before the honorable House of Lords that the Appellant was not liable for the act of an
independent contractor as the independent contractor is not subject to any such control. He undertakes to do
certain works and regarding the manner in which the work is to be done. He is his own master and exercises his
own discretion. An independent contractor is one who undertakes to produce a given result, but so that in the
actual execution of the work, he is not under the order or control of a person for whom he does it, and may use
his own discretion in things not specified beforehand. For example my car driver is my servant. If he
negligently knocks down X, I will be liable for that. But if I hire a taxi driver for going to railway station and
the taxi driver negligently hits x, I will not be liable towards X because the driver is not my servant but only an
independent contractor. The taxi driver alone will be liable for the act. The same example sets best in our case
were the Appellant employee an independent contractor for the construction of a reservoir and the contractor
himself would be liable for the damage been caused to the plaintiff as an independent contractor is his own
master and he is not under any control and supervision of the employer.
There, are certain exceptions were an independent contractor is liable along with the employer but there are two
exceptions to this case and they are:a) If an employer authorizes the doing of an illegal act, or subsequently ratifies the same, he can be made liable
for such an act1.The real reason for such a liability is that the employer himself is a party to the wrongful act,
along with the independent contractor, and therefore he is liable as a joint tort feasor.
b) An employer is liable for the act of an independent contractor in cases of strict liability.
It became aptly clear from the exception that in this case the defendant could not be made liable for the act of an
independent contractor as according to the first exception it says that an employer would only be liable for the
illegal act of an contractor in which the employer is also involved but in this the work given to the contractor
was construction of an reservoir for satisfying the need of water in Appellant mill and according to law
construction of an reservoir for the commercial purpose like mill will not amount to an illegal work and
secondly an employer is also liable when the principle of strict liability applies but it should be made clear
before he honorable house of lords that in this case the principle of strict liability is not been applicable as in the
cases of strict liability there should be an unnatural use of land but in this case construction of an reservoir
should not be considered to be unnatural as the water collected in the reservoir was not at very large quantity
and it was just in that much quantity that it could fulfilled

the demand of the appellant mill

and

1 See Maganbhai v. Ishwarbhai, A.I.R 1948 Guj.69

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for this purpose it should not be considered as unnatural use of land and example of unnatural uses are growing
of an poisonous tree on land or a nuclear plant etc. which can create a huge damage to public at large are
considered to be the unnatural use of land and thus construction of reservoir could not be considered as an
unnatural use of land so by following both the two exceptions it is made clear that the facts of this case does not
prove that defendant would be liable for the negligent act of an independent contractor.
Similarly in the case of Richards v. Lothian2
The claimant ran a business from the second floor of a building. The defendant owned the building and leased
different parts to other business tenants. The independent contractor had blocked all the sinks in the lavatory on
the fourth floor and turned on all the taps in order to collect water at that place for some work. This damaged
the claimants stock and the claimant brought an action under torts in that case the defendants were not liable.
The act which caused the damage was a wrongful act by an independent contractor and there was no nonnatural use of land.
In Morgan v. Incorporated Central Council3
The plaintiff while he was on a law full visit to the defendants premises, fell down from an open lift shaft and
got injured. The defendant had entrusted the job of keeping the lift safe and in proper order to an independent
contractor. It was held that this act of negligence on the part of the independent contractor in not keeping the
lift in safe condition, the defendant could not be made liable.
Similarly, in our case also the plaintiff has suffered the damages because of the negligent act of an independent
contractor and thus the liability of damage should be of the independent contractor.
2. Whether the Appellant was liable for the damages under negligence?
This is humbly submitted before the honorable House of Lords that the Appellant were not liable for the damage
of negligence and nuisance because to prove liability under negligence and nuisance there are certain essentials
which are required to be fulfilled to make a person liable

2 [1913] AC 263 Privy Council

3 (1936) 1 All E.R. 404
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MEMORANDUM ON BEHALF OF THE APPELLANT

Firstly we have to know that what negligence is
2.1) Negligence-Negligence is the breach of the duty caused by the omission to do something which a
reasonable and prudent man would not do4
To prove negligence there are 3 essentials of proving negligence and they are:a) That the defendant owed duty of care to the plaintiff;
b) The defendant made a breach of that duty;
c) The plaintiff suffered damage as a consequence thereof.
As the definition of negligence says that for being negligent a person should have breached the legal duty which
he acquired to his neighbors similarly, in this case the duty which a prudent and reasonable man should have
they all are been possessed by the defendant as he was taking due care and precaution for the construction of the
reservoir as he has employed an independent contractor and engineers who was well versed in this profession
and the defendant reservoir was at a proper distance from the plaintiff coalmine the defendant has done in all the
best method as he can do as the defendant reservoir is been constructed in a valley which is considered to be the
most appropriable and suitable place for its construction thus not effecting any kind of ecosystem, it was made
clear from the facts that defendant used this reservoir for the purpose of his mill and for the usage of this
purpose we can assume that the water required by a medium size mill is 5000 lit per day. So from this we get
that the reservoir should be containing water in that much amount only as it was required by the mill which
should not be considered as dangerous and also the essentials of negligence which says that defendant should
have a due care for the plaintiff by the above facts mentioned that the defendant was maintaining all the possible
safety measures which he can used in that situation and it was also to be understand clearly that when an person
employees an independent contractor in some work than the entire liability is been shifted to the independent
contractor5and the duty which the owner was having is been done with proper care and precaution thus if the
facts of case are not satisfying the essentials of negligence than a person is not liable for the negligence.

4 In the case of Jacob Mathew v. State of Punjab, AIR 2005 SC 3180,Ibid,quoting Ratanlal and
Dhirapal,Law of Torts,2002,441-42
5 In the cases of B.Govindarajulu v. M.L.A Govindaraja Mudaliar AIR 1966 Mad.332.also in the cases of Ramu Tularam
v Amichand 1968 ACJ 54 per Sharad Manohar,J.,Devinder Singh v. Mangal Singh,AIR 1981 P & H 53.
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MEMORANDUM ON BEHALF OF THE APPELLANT

3. Whether the Appellant was liable under the principle of strict liability?
Strict Liability-The rule of strict liability says that if a person brings on his land some dangerous thing which is
considered to be unnatural use of land and by the escape of that dangerous thing if it causes any damage than it
will be a liability falling under strict liability6
Essentials of Strict Liability are:
a) Some dangerous thing must have been brought by a person on his land.
b) The thing thus brought or kept by a person on his land must escape
c) There must be non-natural use of land
To proceed further firstly we have to know that what a reservoir is. The definition of a reservoir is as follows:
A reservoir7 is a natural or artificial lake, storage pond or impoundment of water which is used to store water.
Reservoirs may be created in river valleys by the construction of a dam or may be built by excavation in the
ground or by conventional construction techniques such as brickwork or cast concrete.
It became clear from the definition that the construction of an reservoir is natural use of land and there is slight
difference between the word dam and a reservoir a dam need ample amount of water for full filling the
requirement and the word reservoir means something which is reserved or collected and that reserved and
collected thing could be in any quantity much or less for ex we all restore water in water tanks at our houses that
restoration would also be considered as an reservoir that doesnt means that it is an unnatural use of land and it
is an hazardous thing the same has been repeated in this case as the reservoir constructed by the defendant in
this case was for his mill and the requirement of water in a mill is not that much higher that it will have a ample
amount of water as compare to dam or high quantity of water the size of reservoir was appropriable and it does
not constitute to a unnatural use of land or something which could be termed as hazardous. By proving the
above facts it is been cleared that the principle of strict liability doesnt arise here and is not liable for the Strict
liability.

6 RK Bangia,Law Of Torts,23 Edition

7 en.wikipedia.org/wiki/Reservoir
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MEMORANDUM ON BEHALF OF THE APPELLANT

Similarly in the case of Eastern and South African Telegraph Co. Ltd v. Cape town Tramways Co. 8, the
plaintiff submarine cable transmissions were disturbed by escape of electric current from the defendants
tramways. The defendant was held not liable for the escape. It was observed that a man cannot increase the
liabilities of his neighbor by applying his own property to special uses, whether for business or pleasure.9
And also in the case of Dumne v North Western Gas Board10, The Gas escaped from a gas main caused
by a burst water main. The gas travelled along a sewer and was ignited causing a series of
explosions resulting in injuries to five claimants. One was blown off her bicycle, two young
children were injured playing in the street and a husband and wife suffered injuries in their home.
They each brought an action based on liability under Strict Liability.
Held:
The defendant was not liable. AS the maintenance of that gas line was given to an independent
contractor and he was made liable for that and The Gas Board had not accumulated gas for their
own purposes.
So, as per the above statements of facts the defendant were not liable under the principle of strict liability so the
similar things of facts are been repeated in our case and thus the appellant in this case should also not been made
liable in this case.

8 (1902) AC 381.Also see hoare &co. v. Mc Alpine,(1823) 1 Ch.167

9 (1902)AC 381,at 393
10 1964] 2 QB 806 House of Lords
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MEMORANDUM ON BEHALF OF THE APPELLANT

PRAYER FOR RELIEF

In the lights of facts stated and issues raised, authorities cited and arguments advanced, it is most humbly
prayed before this honorable House of Lords to adjudge and declare that:
1. The appellant is not liable for the act of independent contractor.
2. The act of the appellant will not incur any liability as no negligence was proved.
3. It does not come under the principle of strict liability.
And/or
Pass any other order that it deems fit in the interest of justice, equity and good conscience and for this the
appellant as in duty bound, shall humbly pray.

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