CODE-06

I N T H E H O N ’ B L E

D I S T R I C T C O U R T

A T P A T N A ,

(UNDER SECTION 16(E) OF THE CIVIL PROCEDURE CODE, 1908)

CIVIL SUIT ****/2012

SOMESHWARI BHARGAVA PETITIONER

V.

SPRIHA TANTIA RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PLAINTIFF,

COUNSEL FOR THE PLAINTIFF

C.N.L.U.M.C.I

L I S T O F A B B R E V I A T I O N S

AC Court of Appeal

A/S Aktieselskab

CC County Council

Ch Chancery

Co. Company

Div. Division

Ed. Edition

ER

Etc et cetera

Gen. General

Hon’ble Honourable

Ltd. Limited

NI National Insurance

S.C.J

WLR

I N D E X O F A U T H O R I T I E S

A. BOOKS

1. R.K. Bangia, LAW OF TORTS, (22nd ed., Allahabad Law Agency, Faridabad,2010)

2. P.S.A Pillai, LAW OF TORT, (9th ed., Eastern Book Company, Lucknow,2008)

3. Mark Lunney & Ken Oliphant, TORT LAW:TEXT AND MATERIALS, (1st ed., Oxford

University Press, New York, 2000)

4. Barbara Harvey & John Marston, CASES AND COMMENTARY ON TORT, (6th ed.,

Oxford University Press, New York, 2009)

5. W.V.H. Rogers, WINFIELD AND JOLOWICZ ON TORT, (17th ed., Sweet &

Maxwell Ltd., London, 2006)

6. Ratanlal Ranchhoddas & Dhirajlal Thakore, THE LAW OF TORTS, (26th ed.,

LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010)

B. CASES

Alcock v. Wraith.

Allen v. Lawrence Avenue Group ltd.

Britt v. Zagjo Holdings ltd.

Bourhill v. Young.

Collins v. Hertfordshire CC.

Donoghue v. Stevenson.

Gibson V. Skibbs A/S Marina etc.

Goldman v. Hargrave.

Home Office v. Dorset Yacht Co. ltd.

Randall v. Tarrant.

Ready Mixed Concrete v. Minister of Pensions & NI.

Robinson v. Beaconsfield Rural Council.

Woodward v. Hastings.

S T A T E M E N T O F J U R I S D I C T I O N

The Plaintiff has approached before the Hon’ble District Court at Patna under Sec 16 (e) of Civil

Procedure Code, 1908.

S T A T E M E N T O F F A C T S

Spriha Tantia, a businesswoman, who runs a Butcher’s Shop situated in Kankadbagh colony

in Patna, India. She planned to celebrate Valentine’s Day with her husband, Manoj Tantia,

and other friends by organizing a Ball dance Party on 14th February, 2012.

Someshwari Bhargava is Spriha’s neighbour who sells plants and flowers in a green house

located in her garden. Valentine’s Day i.e. 14th February proves to be most profitable day for

her business every year and this year she also brought varieties of flowers and plants to sell.

While preparing for Ball Dance party, Spriha found that there was a leakage in the wash

basin of her kitchen, Bathroom and also in a pipe attached with a water tank attached to water

tank in the terrace and she wanted an expert plumber to do the repairing works in order to

settle the leakage problems permanently.

Baidyanath, a retired plumber from Patna Municipal Corporation, advertised his services in

the local newspaper, stating that he were “a retired Municipal Corporation Staff (plumber)

with 17 years of experience, running a ‘Pipe Repairing Agency’ situated at Rajendra Nagar,

Patna”.

Having faith in his experience, Spriha hired a Plumber from Baidyanath’s Agency on 12 th

February, 2012 to repair all leakages believing that he is an expert in this job. She showed the

plumber where the entire leak was located and left her house for the purpose of preparing for

the ball dance party, leaving him to carry out the repairs.

In carrying out the repairs to the pipes, the plumber used faulty equipments that he had

brought along which caused a huge flow of water in the main circuit of house. This caused

fire that spread onto the neighbouring premises of Someshwari. The fire reached

Someshwari’s green house destroying many of plants and flowers in her garden, as a result of

which she suffered extensive loses because she had already contracted for the sale of those

flowers and plants owing to the impending Valentine’s Day.

Since Someshwari’s flowers and plants were destroyed, Someshwari could not fulfil her

contract and suffered losses, so she brought an action for damages against Spriha Tantia

claiming Rs 5, 00,000 for the loss she suffered. Spriha protested against this stating she had

no fault since she was not even present when the event took place.

S U M M A R Y O F A R G U M E N T S

I S S U E S R A I S E D

I. WHETHER THE DEFENDANT WAS NEGLIGENT.

II. WHETHER THE DEFENDANT IS LIABLE FOR THE NEGLIGENT ACT OF

INDEPENDENT CONTRACTOR.

III. WHETHER THE DEFENDANT, BEING THE OCCUPIER OF THE

PREMISES, IS LIABLE FOR THE ACT OF INDEPENDENT CONTRACTOR.

A R G U M E N T S A D V A N C E D

I. WHETHER THE DEFENDANT WAS NEGLIGENT.

It is most humbly submitted before the Hon’ble District Court that the defendant was negligent

because she did not took reasonable care which resulted in Breach of Duty which she owed to

her neighbour that is the Plaintiff.

According to Winfield, ‘Negligence as a tort is a breach of a legal duty to take care which results

in damage to the claimant or plaintiff.’1

Negligence composed of three ingredients as per Winfield-:

A duty of care owned by the defendant, wrongdoer / tortfeasor to the claimant to avoid

the type of damage suffered by the claimant.

Breach of that duty

Consequential Damage to the claimant which is not remote.

1.1. WHETHER THE DEFENDANT OWED A DUTY OF CARE TOWARDS

THE PLAINTIFF.

Here existed a duty on the part of defendant to take proper and atleast reasonable care which an

ordinary prudent person would have taken. The defendant in this case left her house leaving the

independent contractor to carry out his work that is to repair the leakages without taking

reasonable steps to take due care

“It is not for every careless act that a person may be held responsible in tort law, nor even for

every careless act that causes damage. He will only be liable in negligence if he is under a legal

duty to take care. It may be objected that ‘duty’ is not confined to law of negligence and that is

an element in every tort because there is a legal duty not to commit nuisance, defamation,

trespass and so on.”2

1 Rogers, W.V.H, Winfield and Jolowicz on Tort, Sweet and Maxwell, London, 17th ed., 2006, Pg. 132.2 Rogers, W.V.H, Winfield and Jolowicz on Tort, Sweet and Maxwell, London, 17th ed., 2006, Pg. 133.

One of the earliest general tests for deciding whether or not duty of care exists is found in the

speech of Lord Atkin in Donoghue v. Stevenson.3-

“There must be, and is, some general conception of relations giving rise to a duty of care, of

which the particular cases found in the books are but instances. The rule that you are to love

your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question,

who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be likely to injure your neighbour. Who,

then, in law is my neighbour? The answer seems to be- persons who are so closely and directly

affected by my act that I ought reasonably to have them in contemplation as being so affected

when I am directing my mind to the acts or omissions which are called in question.”

Regarding the principle laid down by Lord Atkin in the above case we can easily consider the

plaintiff as a neighbour of the defendant because the plaintiff is likely to get affected directly by

any act or omission done by the defendant or any authority working for the defendant on her own

land.

In Woodward v Hastings4 the court held that when an independent contractor is employed, the

hirer must take reasonable step to satisfy that the contractor he/she employed is competent and if

the nature of work permits, he must take certain step that the work has been properly done but

the principle was laid down again by the court in the case of the Gibson v Skibbs A/S Marina

etc.5 that is was duty to the hirer to supervise the act of the independent contractor.

Considering the above mentioned cases, it is quite evident that the defendant owed a duty to care

towards the plaintiff.

3 [1932] AC 562.4 [1954] 1 WLR 1028 at 10445 [1966] 2 All E.R. 476

1.2. WHETHER THERE WAS A BREACH OF DUTY BY THE DEFENDANT.

As established above that the defendant owed a duty of care towards the plaintiff which she

breached by not taking reasonable steps while hiring the plumber, while the repair work was

going on and she did not checked whether the work was properly finished or not.

“The question whether the defendant has committed a breach of duty is to be determined by

applying to his conduct the standard of a reasonable person. The degree or standard of care

which the law requires is that what is reasonable in the circumstances of particular case.”6

In Bourhill v. Young7, In this case a motorcyclist was killed in a road accident for which he was

responsible. A pregnant woman, who had got off a tram at scene of the accident (having heard

the noise of an accident), claimed that when she reached the scene of the accident she saw blood

on the road and as a result suffered shock which put her into premature labour - resulting in the

loss of the baby. She subsequently brought a claim in relation to nervous shock and the resulting

loss/damage. The House of Lords held that the deceased could not be expected to foresee any

injury to the plaintiff therefore he did not owe any duty of care to her and as such his personal

representative could not be held liable.

The above mentioned case determines that there cannot be a breach of duty without the existence

of duty of care but in the present case the defendant owed a duty of care because she could have

reasonably foreseen that her any act or omission can directly affect the plaintiff. As in Randall v.

Tarrant,8 where there was a collision between the plaintiff’s car (which he had left stationary on

the roadside, while he himself walked to the adjoining field) and the defendant’s moving tractor,

the defendant, the driver, was held liable for negligence. The Court of Appeal held that where

there was a collision between a moving vehicle and a stationary vehicle which was plainly

visible the onus was on the driver of the moving vehicle to show that he had taken all reasonable

care. But as facts the defendant had failed to show that he had taken all steps which reasonably

ought to have been taken in the circumstances he was held liable for negligence.

In the same way in the present case the plaintiff failed to take reasonable care by not being there

at time of repairing making herself liable.

6 Pillai, P.S.A, Law of Tort, Eastern Book Company, Lucknow, 9th ed, 2004,Pg 176.7 [1942] 2 All E.R. 396.8 [1955] 1 All ER 600.

1.3. WHETHER THE NEGLIGENT BEHAVIOUR OF DEFENDANT CAUSED

DAMAGES TO PLAINTIFF.

Defendant had a duty to take care which she breached resulting extensive damages to the

Plaintiff. Due to the escape of fire from the house of the defendant, the green house of the

plaintiff was destroyed including the flowers and plants. Plaintiff already entered into the

contract for selling of those flowers and plants on 14 th February 2012, due to escape of fire she

was not able to fulfil the requirements of the contract resulting in the economic loss or we can

say a great economic loss because this particular date turned out to be the most profitable day of

whole year. There is also a loss of reputation of the plaintiff because as she was unable to fulfil

the contracts, her market value declined and she could also lose her customers with whom she

entered into contracts previously.

So from the above mentioned facts it is quite clear that the plaintiff suffered damages and the

defendant also fulfilled the three essentials of the tort of negligence for which she must be held

liable.

II. WHETHER THE DEFENDANT IS LIABLE FOR THE NEGLIGENT ACT

OF INDEPENDENT CONTRACTOR

It is humbly submitted before the Hon’ble District Court that the defendant is liable for the

negligent act of independent contractor as the defendant went away while the work had yet

started.

Various tests for establishing an individual’s employment status have been developed through

the cases:

The Control Test

This was the traditional test. In Collins v. Hertfordshire CC,9 Hilbery J said: “The distinction

between a contract for services and a contract of service can be summarised in this way: In

one case the master can order or require what is to be done, while in the other case he can

not only order or require what is to be done, but how it shall be done.”

The Nature Of The Employment Test

One accepted view is that people who have a ‘contract of service’ (an employment contract)

are employees, but people who have a ‘contract for services’ (a service contract) are

independent contractors (Ready Mixed Concrete v Minister of Pensions and NI).10

The Hire and Fire Test

This test determines the difference between a servant and an independent contractor on the basis

of hiring and firing. An employer can hire and fire a servant on his own will whereas a person

cannot fire an independent contractor from its job.

It generally happens that employers/masters are only liable for the torts of their

employees/servants. They will not usually be liable for the torts of their independent contractors.

Although an employer is not usually liable for the torts committed by an independent contractor

under him, still there are certain exceptional cases in which the master will be liable for the torts

committed by independent contractor as well. In Alcock v. Wraith,11 Neil LJ stated: “where

someone employs an independent contractor to do work on his behalf he is not in the ordinary

9 [1947] 1 All ER 633.10 [1968] 2 QB 497.11 [1991] 59 BLR 16.

way responsible for any tort committed by the contractor in the course of the execution of the

work but there are some exceptions to it.”

The main exceptions to the principle fall into the following categories:

Cases involving the escape of fire.

Cases involving extra-hazardous acts.

Cases where the employer is under some statutory duty which he cannot delegate.

Cases involving operations on the highway which may cause danger to persons using

the highway.

Cases involving the escape of substances, such as explosives.

Cases involving the withdrawal of support from neighbouring land.

Since the plumber fulfils all the three tests: control, nature of employment, hire and fire test, and

he is hired by the defendant, therefore, he is confirmed to be an independent contractor. When he

arrived at the defendant’s house he brought faulty equipments along with himself which the

defendant failed to check which a reasonable person would have done.

In Goldman v Hargrave,12 the defendant was held liable for the negligent act of independent

contractor. A redgum tree on the defendant’s land was struck by lightning and caught fire. The

defendant hired an independent contractor and left him to cut down the tree and douse the tree

with water. The independent contractor cut the tree down and left the tree to burn itself. As the

weather became hotter, it caused the tree to burst resulting in the escape of fire to the plaintiff’s

land, thus caused damage. The defendant counsel argued that the independent contractor be held

liable, but Lord Wilberforce held that, there was negligence on the part of independent

contractor, but since there was escape of fire, the defendant be held liable.

Considering the principle laid down in the above case, the defendant should be held liable for the

negligent act of the independent contractor because the defendant left the independent contractor

alone in the house, and the independent contractor did the work negligently due to which there

12 [1967] 1 AC 645

was escape of fire in the premises of plaintiff and caused damages to the plaintiff.

In Woodward v Hastings,13 the defendant was held liable for the acts of his independent

contractor. A school boy fell down as he slipped on an icy floor in the school due to the

negligence of cleaner. The judge assumed the cleaner as an independent contractor, even after

that the judge held the defendant liable as there was not proper surveillance on the part of the

defendant. So, the judges made the defendant liable for the negligent act of independent

contractor as there was no proper surveillance.

Here, the defendant also did not check the act of independent contractor as she went away when

the work was going to be started. Reckoning the argument, the defendant should be held liable.

In Home Office v Dorset Yacht co. ltd.,14 seven borstal trainees from Brownsea Island in Poole

harbour escaped during the night while, it was alleged, the officers had all gone to sleep. In the

course of escape the boys took a yacht which subsequently collided with the respondent’s yacht,

damaging it. Lord Reid gave the judgement that the borstal trainees were independent

contractors, it was the duty of the officers to not to let them escape and remain with them, hence,

liable. The defendant argued that the borstal trainees be held liable as they were the ones who ran

away with the yacht and it was them who were in charge of that yacht, but the House of Lords

concluded that it was the duty of Home Office to be with independent contractor.

Following the above principle, the defendant carried a duty to remain with the independent

contractor while the work was going and she breached that duty in the same way. Hence, the

defendant should be liable for the act of independent contractor.

In Robinson v. Beaconsfield Rural Council,15 the defendants were under a duty to remove the

sewage from the area of the district to a distant place and they entrusted that work to an

independent contractor. The independent contractor was negligent in his work and placed the

sewage in plaintiff’s premises. The defendant wasn’t present at the time when the work was

13 Supra 4.14 [1970] 2 All ER 294.15 [1911] 2 Ch. 188.

going on hence, the defendants, the council authorities, were held liable for the negligent act of

independent contractor.

This case also suggests, regarding the principle of the above mentioned cases; the defendant

should be liable for the negligent act of independent contractor. The independent contractor was

negligent in his approach and as the defendant wasn’t present at the time when the work was

going on. Therefore, the defendant should be held liable.

Considering the judgement of mentioned cases, it is quite evident that the defendant should be

held liable for the negligent act of her independent contractor. In the above mentioned cases, it is

to be noted that the defendants are held liable as they didn’t take the duty as they weren’t present

while the work was going on.

This case also follows the principle that is mentioned in the above mentioned cases-the defendant

was not present when the work was going on so the defendant should be held liable for the

negligent act of the independent contractors. In this case, the independent contractor used faulty

equipment that’s why he is negligent and the defendant was not present at the time when

repairing work was going on so she should be held liable.

III. WHETHER THE DEFENDANT, BEING THE OCCUPIER OF THE

PREMISES, IS LIABLE FOR THE ACT OF INDEPENDENT

CONTRACTOR.

As per common law principle occupier means a person who has responsibility for and control

over the condition of premises or the activities there carried on, or control over persons allowed

to enter the premises. In the present scenario defendant was having a control over the conditions

of the premises, hence she can be termed as an occupier of that land where the repairing work

was going on.

In Britt v. Zagjo Holdings Ltd.16, the plaintiff slipped and fell on ice in a parking lot. The

maintenance system involved the use of two independent contractors. The court found that the

system was disorganized and lacked communication between the contractors. The court also

found that the owner had failed to ensure that the contractors had properly maintained the

parking lot. The owner was found liable (the contractors had not been sued).

So the above mentioned case and the principle laid down in this clearly indicates that due to

negligence of the independent contractor the occupier or owner was held liable, Similarly in the

present case for the negligence of the plumber, the defendant should be held liable because she

clearly failed to take reasonable steps which a person of ordinary prudence would have taken.

In Allen v. Lawrence Avenue Group Ltd. 17, the court found that the maintenance contract did not

extend to the peril that caused the plaintiff’s injuries and the owner was found solely liable. In

that case, the plaintiff slipped on ice at the foot of a stairway. The maintenance contract was

silent with respect to salting and the contractor was not required to attend at the plaza in the

absence of a snowfall and there were no general inspection requirements. The court held that the

owner had retained responsibility for the icy conditions and that it either should have contacted

the contractor to salt or done so itself.

The common law principle is that the independent contractor is liable for the wrong acts of

himself, but there are some exceptions in which occupier is held liable for the work of the

independent contractor which includes-:

(a) The owner acted reasonably in entrusting the work to the independent contractor; and

(b) The owner took steps to reasonably satisfy itself that:

(i) The contractor was competent.

(ii) The work had been properly done.

3.1 WHETHER THE OWNER ACTED RESONABLY OR NOT.

16 (1996) CarswellOnt 1186 (Gen. Div.).17 (2003) CarswellOnt 1149 (S.C.J.).

Since the competency of the plumber was not checked on the part of the occupier that is the

defendant. Baidyanath was the agency owner and he was having a working experience 17 years

in Patna Municipal Corporation. Merely by knowing about the experience of the agency owner

one cannot infer about the competency of the workers of the agency. Hence there was a lack of

reasonable care on the part of the defendant by not checking the worker’s competency toward the

work.

In Goldman v Hargrave,18 the defendant was held liable for the negligent act of independent

contractor. A redgum tree on the defendant’s land was struck by lightning and caught fire. The

defendant hired an independent contractor & left him to cut down the tree & douse the tree with

water. The independent contractor cut the tree down and left the tree to burn itself. As the

weather became hotter, it caused the tree to burst resulting in the escape of fire to the plaintiff’s

land, thus caused damage. The defendant counsel argued that the independent contractor be held

liable, but Lord Wilberforce held that, there was negligence on the part of independent

contractor, but since there was escape of fire, the defendant be held liable.

Since in above case the contractor did not worked in an efficient manner, this implies that he was

not a competent authority to do that work .This clearly satisfies the first exception mentioned

above that the owner did not acted reasonably in entrusting the work to the independent

contractor . Hence the owner was held liable. Similarly in the given case also the defendant

should be held liable for her act for not working reasonably by not checking the competency of

contractor.

3.2 WHETHER THE CONTRACTOR WAS COMPETENT OR NOT AND THE WORK

DONE BY HIM WAS PROPER OR NOT.

As mentioned in the facts that the contractor brought faulty equipments along with him for the

repairing leakages. This is quite sufficient to show that he competency enough. Hence we cannot

term him as a competent contractor. By using the faulty equipments the work can never be done

properly and it is quite evident from the problem that usage of faulty equipments led to the

18 Supra 8.

leakage which ultimately resulted in fire. Hence we easily infer that the work was not properly

done by the independent contractor.

Following the principles in above mentioned case, it is humbly submitted in Hon’ble District

Court that due to negligent behaviour of defendant even as an owner of the premises should be

held liable.

P R A Y E R

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Hon’ble District Court may be pleased to adjudge, declare and hold the

defendant liable by making her compensate for the loss caused.

And pass any other order that this Hon’ble Court may deem fit in the interests of justice, equity

and good conscience.

ALL OF WHICH IS HUMBLY PRAYED,

C OUNSEL FOR THE

PLAINTIFF