1089In theHonourable High Court of LalitpurAt Lalitpur, xyz

Writ Petition No: XXX/2013[Under Section 226 of the Constitution of India]

IN THE MATTER OF:

Christeena....Appellantv.Municipal Corporation of Lalitpur...Respondent

MEMORIAL SUBMITTED ON BEHALF OF THE APPELLANT

TABLE OF CONTENTSINDEX OF AUTHORITIESiiiSTATEMENT OF JURISDICTIONivSTATEMENT OF FACTSvISSUES FOR CONSIDERATION1. Whether a tort of negligence leading to bodily injury has been committed against the Appellant?vi2. Whether the Respondents areliable to the Appellant for the aforementioned tort, if so committed?viSUMMARY OF ARGUMENTSviiARGUMENTS ADVANCED11.A tort of negligence leading to bodily injury has been committed against theAppellant...11.1 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) 22. The Respondentsareliable to the Appellant for the aforementioned tort committed. ..32.1 The Respondents owed a duty of care to their invitees, including the Appellant.32.2 Res Ipsa Loquitur-The Thing Speaks For Itself.3 2.3 Liability of the insurer...4PRAYER....5

INDEX OF AUTHORITIESBooksBryan.A.Garners, Blacks Law Dictionary, 8th Ed., p.1061.1Ramaswamy Iyers The Law Of Torts, 10th Ed., 2007, pp. 48-491Ratanlal and Dhirajlals The Law of Torts, 26th Ed, 2012, pp.474, 95, 6191,2,3

CasesByrne v Boadle [1863] 159 Eng. Rep. 299 ----------------------------------------------------------------4Klaus Mittelbachert v East India Hotels Ltd[1997] AIR Delhi 207 ----------------------------------4Pushpaben Jitendrakumar Shah v. Union of India [2004] AIR Guj 370 -----------------------------3

Rajan v. Union of India[1992] AIR Kerala 230 ---------------------------------------------------------3Scott v London Katherine Dock Co[1865] 3 H. &C. 596 ----------------------------------------------3

Smith v Baker [1891] AC 325 ------------------------------------------------------------------------------2The Municipal Board, Jaunpur v.Brahm Kishore and Anr[1978]AIR All 168 ----------------------3Thomas 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:-I-The 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.-II-It was nearly impossible for her to view the lights before entering the walkway because of the presence of a box hedge bordering the entrance.-III-She 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.-IV-In 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.-V-The 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 liable to the Appellant for the aforementioned tort, if so committed?

SUMMARY OF ARGUMENTS1. 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 ADVANCED1. 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. [footnoteRef:2]Negligence 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: [2: Bryan.A.Garners, Blacks Law Dictionary, 8th Ed., p.1061.]

(i) legal duty owed by the tort-feasor to the victim, (ii) a breach of such a legal duty, and (ii) Consequential damage.[footnoteRef:3] [3: Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.474.]

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.[footnoteRef:4] [4: RamaswamyIyersThe Law Of Torts, 10th Ed., 2007,pp 48-49.]

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 neglect the person has suffered injury to her person or property.[footnoteRef:5] 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.[footnoteRef:6] [5: Ibid.] [6: Id at p.475.]

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.[footnoteRef:7] 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. [7: Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.95.]

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 Thomas v Quartermaine.[footnoteRef:8] In cases such as this, mere knowledge of risk of injury is not consent. In Smith v Baker[footnoteRef:9], 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. [8: [1887] 18 QBD 685.] [9: [1891] AC 325.]

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[footnoteRef:10] 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. [10: [1978]AIR All 168.]

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 India[footnoteRef:11], 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[footnoteRef:12].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. [11: [1992] AIR Kerala 230.] [12: [2004] AIR Guj 370.]

2.2 Res Ipsa LoquiturRes Ipsa Loquitur, literally means, The Thing Speaks For Itself[footnoteRef:13]. 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. [13: Ratanlal and DhirajlalsThe Law of Torts, 26th Ed, 2012, p.614.]

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.[footnoteRef:14]In the case of Scott v London Katherine Dock Co[footnoteRef:15], 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. [14: [1863] 159 Eng. Rep. 299.] [15: [1865] 3 H. &C. 596.]

2.3 Liability of the insurerIn Klaus Mittelbachertvs East India Hotels Ltd.[footnoteRef:16], 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 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. [16: [1997] AIR Delhi 207.]

PRAYERWherefore 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 Counsel No.1089Place: Lalitpur Counsel for the Appellant