2289/D

IN THE

LEARNED CIVIL COURT

GOA

IN THE MATTER OF

RAJ

PLAINTIFF

V.

RAJIV

DEFENDANT NO.1

AND

KESHAV

DEFENDANT NO.2

CIVIL SUIT NO. XXXX/2024

[UNDERS SECTIONS 9, 15 AND 20 READ WITH ORDER VIII RULE 1 OF THE CODE

OF CIVIL PROCEDURE 1908]

MEMORIAL ON BEHALF OF THE DEFENDANTS

DRAWN AND FILED BY THE COUNSEL FOR THE DEFENDANTS

TABLE OF CONTENTS ..........................................................................................................ii

INDEX OF AUTHORITIES .................................................................................................. iii

STATEMENT OF FACTS ........................................................................................................ v

STATEMENT OF JURISDICTION ....................................................................................... vi

ISSUES IN CONTENTION ................................................................................................... vii

SUMMARY OF ARGUMENTS ............................................................................................ viii

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

I. NO NEGLIGENCE CAN BE ATTRIBUTED TO THE DEFENDANT NO.1....... 1

A. No duty of care was owed towards the plaintiff. ....................................................... 1

B. No duty of care was breached. ................................................................................... 2

II. NO LIABILITY CAN BE ACCRUED FOR THE ACTIONS OF THE CHILD. .. 4

A. Defendant No. 2 is a minor. ....................................................................................... 4

B. Rajiv is not liable for the actions of Keshav. ............................................................. 5

III. THE INJURY HAS OCCURRED DUE TO CONTRIBUTORY NEGLIGENCE.

PRAYER FOR RELIEF ........................................................................................................... 7

ii
 INDEX OF AUTHORITIES

CASES

Bebee v. Sales [1916] 32 TLR 413 --------------------------------------------------------------------- 5

Bourhill v. Young [1943] A.C. 92 ---------------------------------------------------------------------- 1

Branch manager, New India Insurance Co. Ltd. v. Malliga [2012] 1 TN MAC 576 ------------ 6

Butterfield v. Forrester, [1809] 11 East60 ------------------------------------------------------------- 6

Caparo Industries Plc. v. Dickman [1990] 2 AC 605 ------------------------------------------------ 1

Donoghue v. Stevenson [1932] AC 562 --------------------------------------------------------------- 2

Glasgow Corp. v. Muir [1943] A.C. 448 -------------------------------------------------------------- 2

Gorely v. Codd [1967] 1 WLR 19 ---------------------------------------------------------------------- 5

Jeet Kumari Paddar v. Chittagong Engineering and Electrical supply Co. Ltd. (1946) ILR 2

CAL 433 ------------------------------------------------------------------------------------------------ 1

Madhya Pradesh State Road Transport Corporation v Basantibai [1971] ACJ 328 (p.330) ---- 2

Me Hale v. Watson [1966] 115 CLR 199 ------------------------------------------------------------- 4

Mullin v. Richards [1998] 1 ALL ER 920 (CA)------------------------------------------------------ 4

Poonam Verma v. Ashwin Patel AIR 1996 SC 2111 [SC] 2116 ----------------------------------- 1

Pramod Kumar Rasikbai Jhaveri v. Karmasey Kunvarg Tak AIR [2002] SC 2684 ------------ 6

Ramesh Kumar Nayak v. Union of India AIR 1994 Ori 279 --------------------------------------- 1

Rouse v. Squires [1973] 2 ALL ER 903 --------------------------------------------------------------- 6

Sukhraji v. State Road Transport Corporation, Calcutta AIR 1966 Cal 620 --------------------- 2

Vellapandiv v. Manicka Thai [1970] ACJ 65 (Mad.) ------------------------------------------------ 5

STATUTES

The Indian Penal Code, 1860 Section 82 -------------------------------------------------------------- 4

iii
 OTHER AUTHORITIES

Rajasthan Govt., Finance Dept, “General Finance and Account Rules 2023” GFR-II.doc. ---- 6

TREATISES

Ratanlal Dhirajlal, “Law of Torts”, 27th Edition pgs-68-69 ----------------------------------------- 4

Winfield and Jolowicz Tort, 12th Edition, p.69 ------------------------------------------------------- 2

CRE PROPOSITION

CRE Proposition Torts, Feb 12 2024 ---------------------------------------------------------------- 1, 6

iv
 STATEMENT OF FACTS

The Scenario

The plaintiff, Raj lives in a large house of 18 cents on the front of which spans a road 7 meters
long. His house is among seven others on the street and separated from the road by a driveway.
The defendant, Rajiv is his neighbor with a minor son, Keshav who loves to play cricket. Once,
the ball was struck by Keshav and flew through Raj’s window and into his house, which he
was not pleased at and communicated the same to Rajiv.

The Dispute

Subsequently, on one evening when Devi was sitting at the window, the ball allegedly came
and struck the window causing glass shards to injure the left side of Devi’s face and eventually
resulted in the loss of sight in the left eye. The ball was likely hit by Keshav or his friends. In
the ensuing dispute, Keshav has demanded damages of 2 Lakh rupees for medical expenses
and additional 5 Lakh for the loss of sight.

Hence, the present suit.

v
 STATEMENT OF JURISDICTION

The counsel for the defendant most humbly and respectfully submits that this Learned District

Court at Jodhpur, Rajasthan has both, pecuniary and territorial jurisdiction, to hear the present

matter of Civil Suit Number XXXX/2024 filed under Sections 9, 15 and 20 read along with

Order VIII, Rule 1 of the Code of Civil Procedure, 1908 and adjudge accordingly.

All of which is urged in detail in the written submission and is submitted most respectfully.

vi
 ISSUES IN CONTENTION

I.

WHETHER RAJIV’S ACTIONS OR LACK THEREOF CAN CONSTITUTE THE

LIABILITY OF NEGLIGENCE ON PART OF RAJIV?

II.

WHETHER LIABILITY CAN BE ACCRUED FOR THE ACTIONS OF THE MINOR

AGAINST KESHAV OR RAJIV?

III.

WHETHER ACTIONS OR LACK THEREOF ON PART OF THE RAJ CONSTITUTE

CONTRIBUTORY LEGLIGENCE DISCHARGING THE DEFENDANT’S LIABILITY?

vii
 SUMMARY OF ARGUMENTS

I. NO NEGLIGENCE CAN BE ATTRIBUTED TO THE ACTS OF THE

DEFENDANT NO.1.

This is because, firstly, no duty of care was owed by the defendant towards the plaintiff which

is a necessary requirement for liability in negligence; secondly, no duty of care was breached

due to lack of foreseeability and proximate relationship between parties.

II. NO LIABILITY CAN BE ACCRUED FOR THE ACTIONS OF THE CHILD.

This is because, firstly, the defendant no.2 is a minor with a higher requirement of foreseeability

and secondly, the liability of the parent for the acts of a minor child does not extend to all

allegedly negligent acts.

III. ACTS AND OMISSION OF THE PLAINTIFF AMOUNT TO

CONTRIBUTORY NEGLIGENCE DISCHARGINF THE DEFENDANTS FROM

LIABILITY.

This is because, the failure of installing grills where an apprehension of hitting the glass with

a cricket ball exists and purposefully not returning the balls amounted to incitement of the

children to hit the balls towards his house.

viii
 ARGUMENTS ADVANCED

I. NO NEGLIGENCE CAN BE ATTRIBUTED TO THE DEFENDANT NO.1

This is because, [A] No duty of care was owed towards the plaintiff. [B] No duty of care was

breached due to lack of foreseeability and proximate relationship.

A. No duty of care was owed towards the plaintiff.

A unique duty of care, implied or explicit towards the defendant is necessary to constitute

negligence.1 This duty includes, (a)Reasonable foreseeability; (b)Proximate relationship;

(c)Imposition “just, fair and reasonable”.2 A legal duty of care, breach of said duty, and

consequent damages are crucial, without which no tortious liability for negligence can be

decided.3 The reasonable likelihood of injury is also a requirement barring which no negligence

has occurred.4 Illustratively, when the plaintiff delivered a stillborn baby due to the shock of

seeing a motorcyclist’s blood spilled on the road, lack of duty of care lead to the defendant’s

exoneration.5

Keshav played on the road, on public property. Rajiv did not owe any legal duty as his son did

not encroach upon any other person’s property. Any alleged duty owed would not extend to the

act. The road is 7 meters wide.6 The plot spans whole 18 cents. The distance between the road

and the house is thus considerably large. The duty owed would not extend to such a grievous

1
Jeet Kumari Paddar v. Chittagong Engineering and Electrical supply Co. Ltd. (1946) ILR 2 CAL 433
2
Caparo Industries Plc. v. Dickman [1990] 2 AC 605
3
Poonam Verma v. Ashwin Patel AIR 1996 SC 2111 [SC] 2116
4
Ramesh Kumar Nayak v. Union of India AIR 1994 Ori 279
5
Bourhill v. Young [1943] A.C. 92
6
CRE Proposition Torts, Feb 12 2024

1
injury and would be limited to minor property damage, if at all. The likelihood of a cricket ball

hitting the plaintiff’s wife at that distance was highly unlikely. This, combined with the fact

that the plaintiff always kept his windows opened, makes it almost impossible for this kind of

injury to occur.

Hence, no duty of care was owed that would extend to the injury that has occurred.

B. No duty of care was breached.

This is because, [a] the injury was not reasonably foreseeable; [b] they did not have a

sufficiently proximate relationship.

a. The injury was not reasonably foreseeable.

The requirement of reasonable foreseeability as a connection between act and consequence is

paramount.7 Foreseeability is the doer’s state of mind to refrain from acts or omission likely to

result in injury for the defendant.8 Illustratively, when a boy suddenly got off a tram and was

hit by a speeding bus, the driver was not held liable as he could not have foreseen such an

occurrence.9 Additionally, a party server lost her balance and spilled hot tea, for which, no

liability was accrued to the manageress as she could not have foreseen and taken due

precautions.10

7
Winfield and Jolowicz Tort, 12th Edition, p.69; re: Madhya Pradesh State Road Transport Corporation v
Basantibai [1971] ACJ 328 (p.330)
8
Donoghue v. Stevenson [1932] AC 562
9
Sukhraji v. State Road Transport Corporation, Calcutta AIR 1966 Cal 620
10
Glasgow Corp. v. Muir [1943] A.C. 448

2
Allowing his son to play outside could not have been reasonably foreseen by Rajiv to result in

the loss of sight. This is evidenced by the fact that the ball had already entered Raj’s property

several times without any indication of damage to property or person. That such unique

circumstances could arise with the glass could not have been in the contemplation of Rajiv.

Considering the distance and the unpredictable nature of small children, this is not something

he could have prevented.

Hence, Rajiv is not liable as his omission cannot pass the test of reasonable foresight.

b. They did not have a sufficiently proximate relationship.

The relationship between the plaintiff and defendant must be sufficiently proximate so as to

give rise to the apprehension that the former’s actions could be detrimental to the latter.11This

requirement has been widely recognized.12 Illustratively, a cricket ball travelling a long

distance hit the plaintiff; but the cricket club was not held liable in light of no relationship

constituting duty of care and unlikelihood of event happening.13

Merely having a house in the same locality does not amount to a proximate relationship enough

to constitute liability. The duty that may arise for children playing on the road is at the most,

that of possible trespass by the children to recover the ball. The defendant had no duty to protect

the plaintiff from damage caused by his son due to the fact that such damage was almost

impossible to occur. This is a case of extenuating circumstances born out of an unusually

unfortunate situation without breach of any proximate duty on part of Rajiv.

11
M.V. Kew Bridge v. Finolex Industries Ltd [2014] 4 AIR Bom R 639
12
Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum [1997] 9 SCC 552 at pg-570
13
Bolton v Stone [1951] AC 850

3
 Hence, due to lack of duty of care and breach of alleged duty, no liability arises against the

defendant.

II. NO LIABILITY CAN BE ACCRUED FOR THE ACTIONS OF THE CHILD.

This is because, [A] The defendant no. 2 is a minor warranting a higher standard of

foreseeability; [B] Rajiv is not liable for the actions of his son.

A. Defendant No. 2 is a minor.

Minors are sought to be protected under law, at a higher degree than normal citizens as

evidenced by the principle of doli incapax.14 Though enjoying no explicit protection, a higher

standard of duty is applicable for a minor in case of negligence.15 The standard of foreseeability

expected is different than that of a reasonable adult, much more correspondent to the

intelligence and foresight expected of a minor.16 Illustratively, a minor playing with a metal

ruler, when caused an injury to the eye of her classmate, was not held liable as the foresight

expected of her is less than that of an adult.17

Keshav is an energetic child of not yet majority. He cannot, by any stretch of imagination be

expected to have contemplated that mistakenly hitting the ball towards Raj’s house could cause

such an injury. To hold him accountable would amount to disregarding his age. The plaintiff,

by suing a minor who could not have had any malicious intention, has shown his petty and

14
The Indian Penal Code, 1860 Section 82
15
Ratanlal Dhirajlal, “Law of Torts”, 27th Edition pgs-68-69
16
Me Hale v. Watson [1966] 115 CLR 199
17
Mullin v. Richards [1998] 1 ALL ER 920 (CA)

4
vexatious nature. The minor misinterpreted the power of his swing and that’s how the ball

ended up at Raj’s house. This cannot give rise to tortious liability whatsoever.

Hence, Keshav is not liable for the injury caused to Raj’s wife.

B. Rajiv is not liable for the actions of Keshav.

In tortious liability, a parent is not held to be liable for all the alleged torts of their child.18 This

can only be relaxed in case the parent’s act or omission is so intricately connected to the tort of

the child that it amounted to negligence.19 Illustratively, the father was held liable for the

continued possession of an air gun by his son, and the consequent injury, reflecting the standard

of negligence necessary.20

Considering the omission on part of Rajiv, it is one of not forcibly preventing his son from

playing on the road. If we disregard the injury, this omission cannot be considered grave as a

lively child cannot be kept indoors for long. The omission is not of a blatantly negligent nature,

discharging Keshav’s liability, especially in light of the unlikelihood of the event happening

and lack of foreseeability.

Hence, neither Rajiv nor Keshav is liable for the actual act of hitting the ball into Raj’s

house.

18
Vellapandiv v. Manicka Thai [1970] ACJ 65 (Mad.)
19
Bebee v. Sales [1916] 32 TLR 413
20
Gorely v. Codd [1967] 1 WLR 19

5
 III. THE INJURY HAS OCCURRED DUE TO CONTRIBUTORY NEGLIGENCE.

In case of negligence on part of both the plaintiff and defendant, no liability can be accrued to

the defendant.21 Failure to take reasonable care for one’s own property renders the person “the

author of his own wrong”22 In the reasonable foreseeability of an event happening, the plaintiff

must take into account that others might be careless.23 Furthermore, this negligence must have

causal nexus with the injury.24

It is noteworthy that Raj’s windows did not have window grills which are quite ubiquitous in

India and Rajasthan, as evidenced by their presence in high-frequency bracket, by the Rajasthan

General Finance and Accounts Rules.25 Raj did not install these window grills despite the

likelihood of the ball being hit towards his house during play. He also refused to give back the

balls landed on his property26 which could have led to the likelihood of the children

mischievously trying to hit his window to increase. Thus, he has negligently contributed to the

injury caused to his wife.

Hence, no liability can be ascribed due to contributory negligence on part of the plaintiff.

21
Butterfield v. Forrester, [1809] 11 East60
22
Pramod Kumar Rasikbai Jhaveri v. Karmasey Kunvarg Tak AIR [2002] SC 2684
23
Rouse v. Squires [1973] 2 ALL ER 903
24
Branch manager, New India Insurance Co. Ltd. v. Malliga [2012] 1 TN MAC 576
25
Rajasthan Govt., Finance Dept, “General Finance and Account Rules 2023” GFR-II.doc.
26
CRE Proposition Torts, Feb 12 2024

6
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,

the defendants most humbly and respectfully pray before the Learned civil Court of Goa to

adjudge and declare the underwritten: -

1. This Civil Suit stands dismissed.

2. The defendant no.1 does not owe any duty of care towards the plaintiff and hence is not

liable for negligence vis-à-vis his own act or that of his son and there is no tortious

liability against defendant no.2.

3. The claim for damages made by the plaintiff is untenable and thus dismissed.

Date: February 12th, 2024 Counsel No. 2289

Place: Goa, India Counsel for the Defendant