ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

___________________________TABLE OF CONTENTS_____________________________

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................................(i)

LIST OF ABBREVIATION..................................................................................................................(iii)

INDEX OF AUTHORITIES..................................................................................................................(iv)

STATEMENT OF JURISDICTION......................................................................................................(vi)

STATEMENT OF FACTS.....................................................................................................................(vii)

STATEMENT OF ISSUES...................................................................................................................(viii)

SUMMARY OF ARGUMENTS..........................................................................................................(viii)

ARGUMENTS ADVANCED.................................................................................................................1

ISSUE 1...............................................................................................................................................1

WHETHER KISKLE IS STRICTLY LIABLE IN TORT FOR VIOLATING ANY STATUTORY

DUTY OF CARE CREATED BY THE ACT AND THE REGULATIONS FRAMED

THEREUNDER?

[A]. Justification of the fact that 'No Added MSG' did not mean that there was no MSG in the product at all.

[B]. The damage was not foreseeable to any man or company.

[C]. Justifying that my client is not responsible for misleading advertisements.

ISSUE 2................................................................................................................................................

WHETHER COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT

PRINCIPLES OF COMMON-LAW NEGLIGENCE?

[A]. The legal duty on the part of defendant was exercised with due care.

[B]. There was no breach of duty.

[C]. There was no damage as a consequence of the Company's Act.

~i~
 ISSUE 3................................................................................................................................................

WHETHER COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT OF

PRINCIPLES OF COMMON-LAW PRODUCT LIABILITY?

ISSUE 4...............................................................................................................................................

[A]. The plaintiffs negligence and failure to perform duty of care towards the child has led to the injury.

[B]. Doctrine of Last Opportunity.

[C]. How did the actions of Mrs. Renu Sharma lead to voluntarily causing damage to her son Ramesh.
Hence proving, Volunti Non Fit Injuria.

PRAYER...............................................................................................................................................

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 ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

_______________________LIST OF ABBREVIATION _______________________

LIST OF ABBREVIATION

¶ Paragraph

AIR All India Reporter

Anr Another

Art. Article

MP Madhya Pradesh

SC Supreme Court

HC High Court

SDNY Southern Distrcit New York

FDA Food&Drug Administration

MSG Monosodium Glutamate

Ors. Others

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 ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

_______________________INDEX OF AUTHORITIES_______________________

INDEX OF AUTHORITIES

[A]. CASES CITED

Lorna Hafner v. Guerlain Inc. 34 A.D.2d 162 (1970)......................................................................................

Dr.M.Thiruvenkatam v. N.Kanagaraj Coimbatore AIR 1996 SC 1173............................................................

Roginsky v. Richardson-Merell Inc. 378 F.2d 832 USCASC............................................................................

Daley v. McNeil Consumer Products Co 164F Supp 2d 367(S.D.N.Y 2001)...................................................

M.C. Mehta And Anr vs Union Of India & Ors on 20 December, 1986 1987 AIR 1086................................

Paras Jain v. State of Rajasthan 2002 (5) WLN 188......................................................................................

Donoghue v. Stevenson 1932 AC 562..............................................................................................................

Curran v. Northern Ireland Co-ownership Housing Association Ltd (1987) 2 All ER 13..............................

Rothwell v. Chemical & Insulating Co. Ltd. (2007) 4 All ER 1047.................................................................

Parakh Food Ltd. v. State of A.PAppeal (crl.)559 of 2008...........................................................................

C.L.Yadav v. State of Madhya Pradesh 2007 (2) MPHT 360........................................................................

Davies v Swan Motor Co [1949] 2 KB 291...................................................................................................

Wooldridge vs Summer (1963) 2 QB 43 .........................................................................................................

Morris v Murray [1991] 2 QB 6........................................................................................................................

[B]. ARTICLES/REPORTS

Legal Articles on Strict and Product Liability

by Alpanna Sharma (for lawstudies.in)

[C]. BOOKS

The Law of Torts by Ratanlal and Dhirajlal

by Ratanlal Rachoddas and Dhirajlal Thakore, Lexis Nexis Publications.

~iv~
[D]. LEGAL DATABASE

Manupatra

SCC Online

Westlaw International

[E]. LEGISLATIONS

Constitution of India, 1950

Food Safety and Standards Act, 2006

Food Safety and Standards(Packaging and Labelling) Regulations, 2011

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ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

_______________________STATEMENT OF JURISDICTION_______________________
 STATEMENT OF JURISDICTION

The Hon'ble High Court of Delhi has the jurisdiction by virtue of Article 226 of the Constitution of India to
hear and give its judgement in the instant matter.

Article 226: Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to the party in whose favour such order has been
made or the counsel of such party, the High Court shall dispose of the application within a period of two
weeks from the date on which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed
of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day,
stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on
the Supreme court by clause ( 2 ) of Article 32

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ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

____________________STATEMENT OF FACTS_______________________
 STATEMENT OF FACTS

 Kiskle India Limited, a subsidiary of Kiskle Global, USA, is manufacturer and distributor of instant
noodles "Toppie" which they have been selling since the past 15 years. It has been selling in schools
and college canteen and is also by large consumed by a lot of people at home.

 Toppie always comes with a label "No Added MSG" but Kiskle claims that it follows strictest quality
standards for all their food products.

 On May 20, 2015 Mrs. Renu Sharma, housewife, purchased a packet of Toppie for Ramesh. Noodles
had been cooked by the mother in filtered water and served only after Ramesh had washed his hands
using antibacterial soap.

 Within two hours of consuming Toppie, Ramesh started sweating profusely and had a headache. He
also complained of chest pain and irregular heart beating that is pulpatation. When taken to the
doctors, it was concluded that Ramesh was allergic to MSG which caused him permanent damage. He
could not take up any intense activity all his life henceforth.

 Important Fact: In a previous situation, it was detected that Ramesh was allergic to certain food
substances and was asked to avoid fast food in general.

 Mrs. Renu Sharma approached Grahak Jagrit Sanstha, an NGO to take up her case and demand
compensation from Kiskle for the damage caused due to misrepresentation in labelling of packets of
Toppie. Therefore, Grahak Jagrit Sanstha filed a writ petition to the High Court of Delhi demanding
compensation on behalf of not only Mrs. Sharma but all those affected due to the disadvantage of
illiteracy.

 Also, the Food Safety and Standards Authority of India(FSSAI), established under Food Safety and
Standards Act, 2006, was also make a part of the writ petition.
 Important facts related to MSG suggest that MSG naturally occurs in many food substances and
several scientific studies show that MSG is harmful for human consumption as it may have
carcinogenic effects but, naturally occurring MSG is not harmful for health and that only articficially
added MSG beyond certain quantity may prove harmful.

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ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

STATEMENT OF ISSUES________________________
 STATEMENT OF ISSUES

ISSUE 1

WHETHER KISKLE IS STRICTLY LIABLE IN TORT FOR VIOLATING ANY STATUTORY DUTY
OF CARE CREATED BY THE ACT AND THE REGULATIONS FRAMED THEREUNDER?

ISSUE 2

WHTHERE COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT PRINCIPLES

OF COMMON-LAW NEGLIGENCE?

ISSUE 3

WHETHER COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT PRINCIPLES

OF COMMON-LAW PRODUCT LIABILITY?

ISSUE 4

WHETHER THE TORT PRINCIPLES OF CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT
INJURIA WILL APPLY TO THIS SITUATION?

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ANNUAL FIRST SEMESTER MOOT COURT COMPETITION, 2015

ARGUMENTS ADVANCED________________________
 ARGUMENTS ADVANCED

ISSUE 1

WHETHER KISKLE IS STRCTLY LIABLE IN TORT FOR VIOLATING ANY STATUTORY DUTY OF
CARE CREATED BY THE ACT AND THE REGULATIONS FRAMED THERE UNDER?

1. Kiskle India has been selling their Toppie Noodles since the past 15 years with the label of 'NO ADDED
MSG' by which it particularly meant that, No Added MSG had been used in the manufacturing of the
product. It was the naturally occuring MSG which caused harm to the plaintiff Ramesh Sharma due to his
mother fault of serving him the noodle inspite of knowing the fact that he was allergic to it. It must also be
stated here that it was the Plaintiff Ramesh Sharmas's mothers mistake that she served him the noodles
deliberately with full knowledge that her son was allergic to fast food in general.

Fast food means any kind of food substance whether packed or cooked within a very short period of time
and Toppie was a 2 minute noodle which itself means that it fell under the category of fast food.

Since, a similar situation had been witnessed by his mother the duty of care(towards people allergic to MSG
does not come into the picture)

*Ramesh was asked to avoid fast food in general which means that "HE COULD BE ALLERGIC TO A
LOT OF SUBSTANCES PRESENT IN FAST FOODS IN GENERAL INCLUDING MSG(Whether natural
or artificial)

Law applying to the same: Strict Liability means that if there is damage caused to the Plaintiff and if
he/she can prove that it is due to the Defendant, he/she will be titled to compensation from the Defendant
and the Defendant will be strictly helf liable for the same. Strict liability is a legal doctrine that makes a
person or company responsible for their actions or products which cause damages regardless of
any negligence or fault on their part. A plaintiff filing a personal injury lawsuit under a strict liability law does
not need to show intentional or negligent conduct, only that the defendant's action triggered strict liability
and that the plaintiff suffered a harm. Whether or not a tort action is considered strict liability and what
damages are appropriate will depend on your state law, so consult an experienced personal injury
attorney prior to filing a strict liability tort.

2. The second point I would like to raise is that, the damage was not foreseeable since the number of people
in country possibly allergic to NATURALLY OCCURING MSG could not be foreseen by a reasonable man
by any chance and even if it was, it was expected by them in general to avoid eating fast food which could
contain MSG(Whether artificial or natural)

Also, the Epidemiological Studies of Monosodium Glutamate and Health by the

National Institute of Nutrition, Hanoi, Vietnam and Asian Nutrition and Food Culture Research
Center, Jumonji University, Saitama, Japan

concludes that "Natural MSG is safe for the general population and is not at all harmful. It is the Artificial
MSG which causes overweigh/obesity, hypertension, haemoglobin issues and sleep-disordered breathing."
[Join FAO/WHO Expert Committee on Food Additives JECFA, the US Food and Drug
Administration(FDA) and the Federation of American Societies for Experimental Biology(FASEB)]
 So, this means that natural MSG is not harmful for consumption for the general population(assuming
MAJORITY) and if it is harmful for a few handful of allergic people, the company cannot be held liable in
tort for violating Statutory Duty of Care nor can it be expected to forsee the damages that could be caused to
these people.

Case Law: Lorna Hefner v/s Guerlain Inc. [Appelate division of the Supreme Court of the State of New
York, First Department May 7, 1970]

Facts: The Plaintiff (Lorna Hefner) received a bottle of Shalimar perfume manufactured by Guerlain Inc as
a gift. She applied the perfume in portions to different parts of her body. She then visited a beach where she
was exposed to the sun. This developed red blotches on her body which later turned into brown marks. It
was later found that the plaintiff suffered a photosensitive reaction which was abnormal because nothing of
this sort would happen to others unless there was a cut or an opening in the skin. There was no proof of a
conscious disregard of the right of others, or of recklessness on part of the defendant. Accordingly, the
award of punitive damages or compensation was eliminated.

The court held that the concept of strict liability cannot be applied to this because the defendant that is
Guerlain Inc was not responsible for the damages caused to the Plaintiff Lorna Hefner in any manner. It
was all due to the fault of the Plaintiff that she suffered damages. Also, a very minor population was allergic
to the particular perfume in the country and it was their responsibility to take care of the same.

3. Speaking about misleading advertisements and labelling, Kiskle India cannot be held responsible to the
defendant since it clearly mentions 'NO ADDED MSG' which implies that "Artificial MSG" hadn't been
added during the manufacturing of the product. Kiskle cannot be held liable for the natural MSG which
could be from the raw material used. The doctrine of last opportunity hence does not apply in this case as
well. It would amout to Misleading advertisements if the act was performed for monetary advantage as in
increase in the sales etc. but that cannot be held true since studies prove that MSG neither enhances the taste
2

of the product neither does it attract more consumers. Also, the advertisements could not be called
misleading because to any prudent and reasonable man 'No Added MSG' would mean that there is no
externally added MSG and even if there is it must be naturally occuring. Hence, stating that 'No Added
MSG' was a deliberate act to increase sales and to mislead the consumers is not valid.

This can be supported by the following case law:

Section 23 of the Food Safety and Standards Act, 2006.

Section 23- Packaging and labelling of foods. (1) No person shall manufacture, distribute, sell or
expose for sale or despatch or deliver to any agent or broker for the purpose of sale, any
packaged food products which are not marked and labelled in the manner as may be specified by
regulations: Provided that the labels shall not contain any statement, claim, design or device which
is false or misleading in any particular concerning the food products contained in the package or
concerning the quantity or the nutritive value implying medicinal or therapeutic claims or in relation
to the place of origin of the said food products. (2) Every food business operator shall ensure that
the labelling and presentation of food, including their shape, appearance or packaging, the
packaging materials used, the manner in which they are arranged and the setting in which they
are displayed, and the information which is made available about them through whatever medium,
does not mislead consumers.
 Also, the latest amendment in the FSS Act that is,

FOOD SAFETY AND STANDARDS(PACKAGING AND LABELLING) REGULATIONS, 2011.

[Amended last on 1.06.2013]

[F.No. 2-15015/30/2010]

Whereas these draft Regulations were published in consolidated form at pages 1 to 776 in the
Gazette of India Extraordinary Part III – Sec. 4 dated 20th October 2010

States that- "3. Pre-packaged food shall not be described or presented on any label or in any
labelling manner that is false, misleading or deceptive or is likely to create an erroneous
impression regarding its character in any respect;"

My client apart from all the ingredient labelling, had a label which said 'No Added MSG' which means that
no MSG was added by my client Kiskle India Ltd artificially which leads to only one thing- that is Kiskle
India Ltd is not responsible for the damage caused to Mast. Ramesh Sharma in any manner.

"FDA requires that foods containing added MSG listed in the ingredient panel on the packaging as
Monosodium Glutamate. However, MSG occurs naturally in ingredients such as hydrolyzed
vegetable protein, autolyzed yeast, hydrolyzed yeast, yeast extract, soya extracts and protein
isolate as well as in tomatoes and cheeses. The agency does not require the label to also specify
that they naturally contain MSG."

CASE LAWS

(i) Roginsky v Richordson-Merell Inc

Richardson-Merell Inc(Defendant) manufactured a drug a drug MER/29 which was already

approved by the FDA.

Plaintiff(Roginsky Sydney) demanded to recover compensatory and punitive damages for

personal injuries. The defendants held that evidence was not sufficient to warrant submission of
the punitive damages issue to the jury.

Important Facts: FDA cleared the drug with the label "SIDE EF-facts" that "Isolated reports have
been received of nausea, vomiting, temporary vaginal bleeding and dermatitis" And under the
heading "CAUTION" a warning that "MER/29 has been showing to be entirely safe in the periods
the drug has been studied, but long term or life term effects are unknown. Periodic examination of
patients on long term MER/29 therapy is therefore necessary."

In 1960 over 100,000 persons used the drug with no cataract reports. Hence, the courts did not
hold the defendant liable.

(ii) Daley v. Mc Neil Consumer Products Co. 164F Supp. 2d 367(S.D.N.Y 2001)

Jurisdiction of the United States District Court, SD New York

 ~xi~

Facts:

(a) Mc Neil Consumer Products manufactured a drug called Lactacid which was consumed
by the Plaintiff Daley because of which she suffered reactions.

(b) She was paralelly also consuming other medicines for her blood pressure and well as
her skin.

(c) She did not have enough evidence to prove that the damage had been caused due to
Lactacid.

The courts held that the defendant is not liable for the damages.

(iii) Dr. M. Thiruvenkatam v. N.Kanagaraj Coimbatore on 27 September, 2010.

(iv) Carlin v. Superior Court[American Jurisdiction]

 ~xii~

ISSUE 2

WHETHER COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT PRINCIPLES

OF COMMON-LAW NEGLIGENCE?

It is contended that the defendant is not liable to pay compensation to the petitioner under the tort
principle of common negligence as [A] the legal duty on the part of defendant was exercised with due care
[B] there was no breach of duty [C] there was no damage as a consequence of the company’s act.

The general principles laid under Food Safety and Security Act, 2006 states that the regulation imposed must
be proportionate and no more restrictive of trade than is required to achieve appropriate level of health
protection. In case of Paras Jain v. State of Rajasthan1, naturally occurring diacetyl was found in ghee and
the company was not held liable. Similarly in the present case as claimed by the defendant there was NO
ADDED MSG, however naturally occurring MSG might have been present. No tests have been conducted to
verify the content or properties of the food product and therefore it must not be concluded that MSG was
added by the defendant.

[A] Exercise of legal duty by the defendant

The duty of care is essential before a person can be held liable. There are few requirements necessary to
establish a duty of care:

1 Paras Jain v. State of Rajasthan 2002 (5) WLN 188

[A.1] Foresee ability and Proximity

In the celebrated case of Donoghue v. Stevenson 2Lord Atkin stated that the duty of care is to avoid acts and
omissions which one can reasonably foresee would be likely to injure other. In the present case it has been
scientifically proved that naturally occurring MSG is not harmful in and hence it was not foreseeable that it
would cause damage to Ramesh.

[A.2] Just and reasonable to impose liability

The House of Lords in the case of Curran v. Northern Ireland Co-ownership Housing Association Ltd.
3
accepted that it would not be fair and reasonable to impose a duty of care on a party if the party had no
power of control over things. Similarly in the present case, the defendant had no control over naturally
occurring MSG and therefore it would be unfair to hold the company liable for it.
The company has therefore exercised its legal duty of taking care that none of its acts harm its consumers
with due diligence.

~xiii~

[B] No breach of duty

As stated by the House of Lords in the case of Rothwell v. Chemical & Insulating Co. Ltd.4, where the mere
presence of asbestos was rejected as a claim for actionable injury, “the cardinal principle of liability in
negligence is that the party complained of should owe a duty of care to party complaining and that the party
complaining should be able to prove that he has suffered damage in consequence of that breach of duty”.
However in the present case, there has been no breach of duty as it has been scientifically proved that the
naturally occurring MSG is not harmful in general.

2 Donoghue v. Stevenson 1932 AC 562

3 Curran v. Northern Ireland Co-ownership Housing Association Ltd (1987) 2 All ER

13

4 Rothwell v. Chemical & Insulating Co. Ltd. (2007) 4 All ER 1047

Also according to theFood Safety and Standard (packaging and labelling) Regulation, 2011 it is nowhere
mentioned that naturally occurring substances should be mentioned on the label. Unlike the case of Parakh
Foods ltd. v. State of AP5, the defendant in the present case took reasonable care and exercised all due
diligence to ensure that the labelling was neither false nor misleading.

[C] No damage because of company

According to FoodSafety and Standard (licensing) Regulation, 2011, a food business entity must renew its
licence at least in a period of 1-5 years. Kiskle has been operating in India for a period of 15 years and
therefore it must have renewed its licence at least thrice. A fact to be noted is that scientific panels and
scientific committees established under the Food Safety and Standard Act, it prima facie appears that just by
the fact that Kiskle was able to renew its licence every single time, there is no fault in the product which can
cause damage to its consumers.

Since the three essential conditions of negligence are not fulfilled it is humbly contended that the Kiskle
India ltd. is not negligent and hence no compensation shall be payable to the petitioner under the tort
principles of common law negligence.
5 Parakh Food Ltd. v. State of A.PAppeal (crl.)559 of 2008

~xiv~

ISSUE 3

WHETHER COMPENSATION IS PAYABLE TO THE PETITIONER UNDER THE TORT PRINCIPLE

OF COMMON-LAW PRODUCT LIABILITY?

It is humbly submitted that the defendant is not liable to pay compensation to the petitioner under the tort
principle of common product liability.

The principle of product liability states that when a person is affected by a defective product which is
unreasonably dangerous or unsafe at this case the company is liable to the consumer.

The company have been strictly following the FSSAI guidelines under act 23 of 2006.

The product do not contains MSG to a prudent and a reasonable person it means there is no monosodium
glutamate added to the product in the course of production but in toppie msg is produced naturally in the
production process itself.

According to food allergen and consumer protection, The united states of America states that “an ingredient
as contains only major like peanuts wheat etc must be mentioned in the label. As in the case of cl yadav vs
the state of Madhya Pradesh

Here every minute persons are allergic to naturally occurring MSG which is not heard off.

The company had not mentioned naturally occurring MSG because ; according to FSSAI packaging and
labelling regulation act 2011 clause 2.7.1.2. states that “ any addition or admixture or deficiency shall be
labeled’’ so here there is only naturally occurred MSG there is no obligation of kiskle india limited to
mention on it. As stated in the case of Bolton v. Stone 1951 House of Lords. There is no duty of the
company to take care of every remote possibility.

Further research states that naturally occurring MSG is in many natural foods like potato tomato and cheese
therefore it is not harmful to health also.
 ~xv~

ISSUE 4

WHETHER THE TORT PRINCIPLES OF CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT
INJURIA WILL APPLY TO THIS SITUATION?

The first sub issue is to decide whether the tort principle of contributory negligence apply in this case, or
not.
Contributory negligence is when the plaintiff by his own want of care contributes to the damage caused by
the negligence or the wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence. Supporting this point the counsel will state a reference cases.

In this case, the plaintiffs negligence and failure to perform duty of care towards the child has led to the
injury. As per the Last Shot Principle or Doctrine of Last Opportunity, whoever had the last opportunity to
avoid the injury that is suffered is solely responsible for the act. Here, the mother of Ramesh had the last
chance of avoiding the harm by not feeding him topple when she was aware that her son is allergic to fast
food. Therefore, the company cannot be held liable.
My fellow counsel has already proved to the court that the common law of negligence is not applicable in
this case as the company has not been negligent in fulfilling its duties, hence the
question of contributory negligence does not arise and the plaintiff has been negligent in taking the
necessary care.
"And when one is considering the question of contributory negligence, it is not necessary to show that the
negligence constituted a breach of duty to the Defendant. It is sufficient to show lack of reasonable care by
the Plaintiff for his own safety."

To further strengthen the case the counsel will like to cite the case of

Davies v Swan Motor Co [1949] 2 KB 291 Court of Appeal



Facts-
Davies had been standing on steps at the side of a dust lorry. He was standing in a dangerous place. The
lorry was travelling along a narrow road when a bus tried to pass the lorry. Davies was unfortunately
killed. 

Held:

Davies was himself one-fifth responsible for the damage because of his negligence in
standing upon, or being upon, the side of the dust lorry. His damages were accordingly reduced under the
Law Reform (Contributory Negligence) Act 1945.

The counsel now seeks permission to move to the second sub issue which is the defense claim of volenti non
fit injuria. supporting this point the counsel will state 2 reference cases.

According to Section 176 of Government of India Act 1935 for the defence of Volenti Non Fit Injuria to
stand , the defendant must prove that the claimant voluntarily placed himself in the path of danger and thus
impliedly waved all his claims for damages.

Toppie is a processed instant noodles which comes as a ready to eat kit and this makes it evident that topple
comes under the umbrella of fast food. Ramesh as we know was allergic to certain fast food substances was
asked to avoid fast food in general. Inspite of knowing this fact , Mrs. Renu Sharma mother of Ramesh went
on to serve him toppie. This acts itself attracts volenti non fit injuria. She voluntarily chose to serve toppie to
Ramesh. and to talk about MSG there is no proof of MSG to be present in Toppie. The contention of
whether MSG was added or not should not have any importance as the child here was an extremely sensitive
being and the mother should have taken the much needed care of considering that topple is a fast food at last
which was asked to be avoided by the child.

To further strengthen the point, I would cite the case of Wooldridge vs Summer and Morris vs Murray

Wooldridge vs Summer (1963) 2 QB 43

Facts-the Plaintiff was a professional photograph who had positioned himself within the ring of the horse
show and not behind the barriers where the spectators were housed. He was on a bench with Miss
Smallwood who was a director of the company which employed the Claimant. He had been taking little
interest in the proceedings and was not experienced in regard to horses. During the competition, one of the
horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they
were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to
pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three
or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing
the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti
non fit injuria.

Held:

There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was
held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full
knowledge of the nature and extent of the risk.

Morris v Murray [1991] 2 QB 6

Facts:

The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a light
aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both to the
airfield. They started the engine and the Defendant took off but crashed shortly after. The Defendant was
killed and the Claimant was seriously injured. An autopsy revealed that the Defendant had consumed the
equivalent of 17 Whiskeys. In an action for negligence, the Defendant raised the defence of volenti non fit
injuria.

Held:

The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously
heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted the
risk of injury and waived the right to compensation.