Tyagi Malliappa v. Daylight Fishing Co. (P) Ltd.

WRITTEN SUBMISSIONS

1. Whether the principle of Vicarious liability is applicable in the

present case?

(a) Vicarious liability According to BLACK’S LAW DICTIONARY:

Liability that a supervisory party (such as an employer) bears for the

actionable conduct of a subordinate or associate ( such as an employee ) based

on the relationship between the two parties.

A person may be liable in respect of wrongful acts or omissions of another in

three ways:-

1. As having ratified or authorized the particular act.

2. As standing towards the other person in a relation entailing responsibility for

wrongs done by that person; and

3. As having abetted the tortious acts committed by others. 1

(b) Whether Mallavi Thillapalli was a servant of the fishing firm?

In the case Montreal v. Montreal Locomotive Works Ltd.2 LORD WRIGHT

has said that in complex conditions of modern industry more complicated tests

11
Ratanlal and Dhirajlal, The Law Of Torts, ( Wadhwa & Company, Nagpur, 25th –ed, 2006) p.139
2
(1947) 1 DLR 161
2

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Tyagi Malliappa v. Daylight Fishing Co. (P) Ltd. 2

than the traditional control tests have often to be applied. The control test

breaks down when it is applied to skilled and particularly professional work

and therefore in recent years it has not been treated as an exclusive test. 3

According to LORD WRIGHT it would be more appropriate to apply a

complex test involving (1) control; (2) ownership of the tools; (3) chance of

profit; (4) risk of loss; and control in itself is not always conclusive.4

(c) In the present case the defendant paid daily wages to the fisherman on the

basis of amount of fishes that he caught. Furthermore he was given needed

training and required infrastructure and equipment like boats, nets etc.

Moreover he was taught basic safety and precautionary measures to be taken

while fishing. This satisfies all the conditions of the test laid down by LORD

WRIGHT, hence the fisherman is indeed a servant of the defendant.

(d) Whether the act done by Mallavi was wrongful and in the course and

scope of employment?

It is most humbly submitted that an employer forbids certain acts. But it does

not follow from this that an act done in defiance of the prohibition is thereby

placed outside the scope of employment. If it were so, the employer would

only have to issue specific orders not to be negligent in order to escape liability
3
Silver Jubilee Tailoring House v. Chief inspector of Shops and Establishments, (1974) 3 SCC 498 ; M/s P.M.
Patel and Sons v. Union of India (1986) 1 SCC 32, p.39
4
Montreal v. Montreal Locomotive Works Ltd, (1947) 1 DLR 161, p. 169

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Tyagi Malliappa v. Daylight Fishing Co. (P) Ltd. 3

for his employee’s negligence.5 The House of Lords Has laid down the rule as

follows:6

There are prohibitions which limit the sphere of employment, and prohibitions which

only deal with conduct within the sphere of employment. A transgression of a prohibition of

the latter class leaves the sphere of employment where it was, and consequently will not

prevent recovery of compensation. A transgression of the former class carries with it the

result that man has gone outside the sphere.

In the case of Canadian Pacific Rly. Co. v. Lockhart7 holding the defendants

liable the Judicial Committee advised:8

It was not the acting as driver that was prohibited, but that non-insurance of the

motor car, if used as a means incidental to the execution of the work which he was employed

to do. It follows that the prohibition merely limited the way in which, or by means of which,

the servant was to execute the work which he was employed to do, and that breach of the

prohibition did not exclude the liability of the master to third parties

(e) It has been expressly mentioned in the facts that the defendant prohibited

the fisherman from leaving the boat and getting into the water. Yet the

5
Margaret Brazier and John Murphy, Street on Torts,(Butterworths, London, 10th – ed, 1999), p.518
6
Plumb v. Cobden Flour Mills Co. Ltd. (1914) AC 62, p.67 (per Lord Dunedin)
7
(1942) AC 591, (1942) 2 All ER 464 (The defendants had prohibited driver from driving uninsured cars on
company’s business. In breach of this instruction S drove an uninsured car negligently while engaged on
company business and injured the plaintiff.)
8
(1942) AC 591, p.601

MEMORIAL ON BEHALF OF THE PLAINTIFF

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Tyagi Malliappa v. Daylight Fishing Co. (P) Ltd. 4

fisherman jumped into the water. This act of defiance of the master’s orders is

still within the sphere of employment. It is an authorized act done in an

unauthorized or a wrongful manner.

Therefore this shows that the firm is vicariously liable for the wrongful act of

the fisherman which directly led to the injury caused to the plaintiff.

2. Whether the Defendant can avail the defense of Volenti Non Fit

Injuria?

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(f) Volenti Non Fit Injuria The principle that a person who knowingly and

voluntarily risks danger cannot recover from any resulting injury .9

A man cannot complain of harm to the chances of which he has exposed

himself with knowledge and of his free will. 10

The maxim volenti non fit injuria ‘is founded on good sense and justice. One

who has invited or assented to an act done towards him cannot, when he suffers

from it, complain of it as a wrong.’ 11 The maxim presupposes a tortuous act by

the defendant.12

(g) The fact that the plaintiff jumped into the water knowing full well the risks

involved is accepted but as is evident this being a rescue case is an exception to

the principle.

Dr Goodhart, in summarizing the American cases, said:

‘The American rule is that the doctrine of assumption of risk does not apply where the

plaintiff has, under an exigency caused by the defendant’s wrongful conduct, consciously

and deliberately faced a risk, even of death, to rescue another from imminent danger of

personal injury or death, whether the person endangered is one to whom he owes a duty of

protection or is a mere stranger to whom he owes no such special duty.’13

9
Garner, BLACK’S LAW DICTIONARY, (8th – ed.)
10
Ratanlal and Dhirajlal, The Law Of Torts, ( Wadhwa & Company, Nagpur, 25th –ed, 2006) p.94
11
Smith v. Baker & Sons, (1891) AC 225
12
Woolridge v. Summer, (1962) 2 All ER 978
13
Goodhart, ‘Rescue And Voluntary Assumption of Risk’

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This was accepted as an accurate representation of English Law by Greer L.J.

in Haynes v. Harwood,14 where the Court of Appeal affirmed a judgment in

favor of a policeman who had been injured in stopping some runaway horses

with a van in a crowded street. The policeman who was on duty in the police

station, not in the street darted out and was crushed by one of the horses while

he was stopping them. It was also held that the rescuer’s act need not be

instinctive in order to be reasonable, for one who deliberately encounters peril

after reflection may often be acting more reasonably than one who acts upon

impulse.15

(h)There are several reasons why volenti non fit injuria is no answer to the

rescuer’s claim. In the first place, it is now clear that he founds upon a duty

owed directly to himself by the defendant and not upon one derived from that

owed to the person imperiled. If the defendant ought to have foreseen an

emergency and that someone would expose himself to danger in order to effect

a rescue then he owes a duty directly to the rescuer. To go on to hold that the

rescuer was volens would be flatly self-contradictory.16

14
(1935) 1 K.B., p.156-157
15
ibid at p.158-159
16
cf. Reeves v. M.P.C., (2000) 1 AC 360

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In the second place, a rescuer acts under the impulse of duty, moral or social

and does not, therefore, exercise that freedom of choice which is essential to

the success of the defense.17

Thirdly, it is in the nature of a rescue case that the defendant’s carelessness

precedes the claimant’s act of running the rescue. The claimant does not assent

to the defendant’s carelessness at all, and, indeed, maybe wholly ignorant of it

at the time. All he knows is that someone is in a position of peril which calls

for his intervention as a rescuer.18

(i)Whether the plaintiff while saving Mallavi acted like a reasonable

man?

The principle is the same when the plaintiff is under no legal duty 19 to effect

the rescue, for example, a passer by who is injured while rescuing a little girl

from the danger of being run over by a lorry 20, or a doctor who descends a gas

filled well to attempt to rescue two workmen overcome by fumes 21. The

principle is that if one person by his own negligence causes another person to

be in a position of danger, he should have regard to the probability that a third

17
Frost v. CC. South Yorkshire (1999) 2 AC 455, p.509
18
Baker v. T.E. Hopkins & Sons Ltd. (1959) 1 W.L.R. 966, p.976, per Morris L.J.
19
Ogwo v. Taylor (1988) AC 431, 443
20
Morgan v. Aylen (1942) 1 All ER 489
21
Baker v. T.E. Hopkins & Sons Ltd. (1959) 1 W.L.R. 966

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person, acting bravely and promptly and subjugating any timorous concern

over concern for his own well being or comfort, may attempt a rescue.22

(j)Hence the plaintiff in the present case acted due a perilous and urgent

situation even though he was aware of the risk faced in saving the fisherman.

He acted under an impulse of a moral and social duty as any reasonable man

would in good faith.

(k)In Haynes v. Harwood,23 it has been said that:

‘The reasonable man here must be endowed with qualities of energy and

courage, and he is not deprived of a remedy because he has in a marked

degree a desire to save human life when in peril.’24 And even if his duty to

intervene were merely a moral one, still ‘the law does not think so meanly of

mankind as to hold it otherwise than a natural and probable consequence of a

helpless person being put in danger that some able bodied person should

expose himself to the same danger to effect a rescue.’25

22
ibid at 966, 976, 977
23
(1935) 1 K.B., p.156-157
24
(1935) 1 K.B., p.162
25
Pollock, Torts (15th – ed.), adopted by Maugham L.J.in Haynes v. Harwood

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(l) It is most humbly submitted that in the present case the plaintiff before

jumping into the water, to save the fisherman, could have reasonably foreseen

that he may suffer an injury. Since he was not a good swimmer it can be

foreseen that the sea water might enter his ears, eyes etc. The plaintiff was a

man of great courage, grit and determination. Even though he knew of the

inherent risks, his desire to save the fisherman’s life is a reasonable act under

the given circumstances.

3. Whether the defendant is liable to pay damages?

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(m) Lord Kenyon, in the case of Stone v. Cartwright26 said, ‘the action must be

brought against the hand committing the injury, or against the owner for whom

the act was done.’

The plaintiff was injured due to the wrongful act of the defendant. When he

went to rescue the defendant, the sea water entered his ears and caused

permanent loss of hearing. It can also be reasonably assumed that due to the

salinity of the sea water, he lost his eyesight during the course of saving the

fisherman.

The plaintiff was a courageous and determined young man who dreamt of

joining the army. Due to the loss of eyesight he was rejected from the army and

this caused him emotional distress.

Since this was a consequence of the wrongful act of the fisherman, the

defendant is liable to pay damages.

PRAYER
26
(1795) 6 TR 411,412

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

authorities cited, it is most humbly prayed before this Hon’ble District Court of

Cochin, that it may be pleased –

1. To pass the decree in favour of the plaintiff

2. To allow damages to the amount of Rs.10 lacs

And further, grant any other relief or pass any other order in favour of the

Plaintiff, which the Honourable Court may so deem fit in the ends of equity,

justice and good conscience.

All of which is most humbly and respectfully submitted.

Date: August 22, 2006.

Place: District court of Cochin, at Cochin. Counsel for the Plaintiff

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