Principle 1: In common law, a person can claim damages from another person where that other person owed the first person a duty of care harmed that person through their conduct in breach of that duty.

Principle 2: Negligence is a tort which depends on the existence of a breaking of the duty of care owed by one person to another.

Principle 3: If someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in Tort. Volenti Non Fit Injuria (VNFI)

Facts: Mrs. Sharma, 5’3”, fair, heavily myopic, lives in RK Puram, Delhi. She likes wearing red, watching Kyunki Saas Bhi Kabhi Maregi, wearing high heels and drinking Ginger Beer.

She is so much into Ginger Beer that her daughter is named Ginger and her son is named Beer. She reserves the word ‘honey’ more for her Ginger Beer tastes than for her husband. It can be said that Ms. Sharma’s life revolves around Ginger Beer, the drink. She is also writing a book called “101 Ginger Beer Recipes”.

One fine Sunday morning, Kyunki Saas Bhi Kabhi Maregi ends. The two decade TV Show ended with a profound message “Because everyone dies”. Unable to bear the trauma of her favourite show ending, Mrs. Sharma invites Mrs. Verma and her daughter Erma, two other big fan of KSBKM for a cuppa; of Ginger Beer, of course. Mrs. Sharma resembles Mrs. Verma in that she is 5’3”, fair and heavily myopic.

On this eve, Mrs. Sharma is trying out (in her huge kitchen), what according to her is a self-invented ‘sexier than me’ recipe. It contains freshly chopped parts of one freshly killed snail. The hard crust is discarded; the pulpier portion is put into the Soda. The snail pulp becomes the spirit of the drink, they say.

Mrs. Verma, standing at one extreme end of the kitchen is seeing this, hand on hips. Erma is fascinated by the process too. The drink is ready. “What a lovely ‘live’ drink”, says Mrs. Sharma as the three move on to the drawing room and enjoy the fantastic Ginger Beer.

Late that night, Mrs. Verma, a saas herself, dies. Erma gets a severe stomach ache. Erma sues Mrs. Sharma for damages.

 

1. Argue for Erma and Mrs. Verma (70-80 words) [2 ½ marks]

2. Argue for Mrs. Sharma (70-80 words) [2 ½ marks]

Note: Such descriptive questions are no longer asked in any law entrance test. NLSIU did have such questions before CLAT.  However, CLATapult does tests its students regularly with such questions. When a student writes down an answer, we get to know what and how he/she is thinking .

Donoghue v Stevenson, CLAT legal reasoning, negligence, Volenti non fit injuria

Image from here.

Do read about the Donoghue v. Stevenson case here.

Do write your answers to the above question as comments below.

3 Response Comments

  • Devyani TodiJuly 28, 2013 at 5:33 pm

    for Mrs. sharma- i don’t think she had any intetion to harm Mrs. verma and Erma because if she wanted to harm them she would not have made the ginger beer infront of them. Mrs. Verma and Erma had seen the ingredients ( snail) after seeing that also they did not have any issues so they can’t say that they did not know the ingredients. They were very eager to have the ginger beer, that means that Mrs.sharma did not force them in any way, it was completely their choice for having the drink.

    Reply
  • Aritra MondalAugust 27, 2013 at 2:41 am

    Wow! The case is fascinating man. Is this a real case or did you just make it up??

    It seems a bit complicated to me, but I’ll try to answer it as correctly as possible. I’m just a class XII student, so my understanding of law might not be up to the mark. Sorry in advance.

    Volenti non fit injuria, as books say, is a defence of limited application in tort law. Literal interpretation of the phrase would be, ‘to one who volunteers, no harm is done’. It frees the defendant from all liability. It can easily be confused with defence of consent. It requires, as my books say, “a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions.”

    The requirements of the defence are thus:

    1. A voluntary. The agreement must be voluntary and freely entered for the defence of volenti non fit injuria to succeed. If the Claimant is not in a position to exercise free choice, the defence will not succeed.

    2. Agreement. i.e. The agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice.

    3. Made in full knowledge of the nature and extent of the risk. i.e. The Claimant must have knowledge of the full nature and extent of the risk that they ran.

    Now the question is, can we apply these principles here? Let’s see-

    Although Mrs. Verma and Erma supposedly knew about the risk, they GLADLY AGREED to take that drink and did so. Both of them HAD an option to exercise their free choice. Although there was no contractual term or notice, they kinda agreed to the risk involved with verbal terms and gesture. It can be inferred from the context that the decision was made in full knowledge of the nature and extent of the risk. SO, MRS. SHARMA CAN NOT BE HELD LIABLE.

    On the other hand, Mrs. Sharma WAS negligent. “Of Injuries arising from Negligence or Folly. Every man ought to take reasonable care that he does not injure his neighbour; therefore, wherever a man receives any hurt through the default of another, though the same were not wilful, yet if it be occasioned by negligence or folly, the law gives him an action to recover damages for the injury so sustained.” So yes, she WAS negligent. The law also says “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Although the quotations above involves the interpretation of the term legal neighbour, it applies for her literal neighbours, Erma and Mrs. Verma too. Mrs’ Sharma could easily foresee the risk involved yet she served her guests drinks that made one of them SEVERELY SICK and KILLED the other. Negligence is a tort. It doesn’t matter if it was made in front of the victims or not, or the fact that she had no intention to kill her neighbours; Mrs. sharma was negligent nonetheless, and thus, should be punished by the law. Not only that, she could be also charged with MURDER, and ATTEMPT TO MURDER. As Indian Penal Code states, The offences include causing death whether by intention or not. “Culpable homicide” is an offence under section 299 of the Indian Penal Code (IPC), defined as “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Mrs. Sharma WAS AWARE about this risk, so yes, she is GUILTY AS CHARGED, AND MUST COMPENSATE ERMA. Had Erma charged Mrs. Sharma with CULPABLE HOMICIDE, Erma had a fair chance of winning that case too.

    BOTTOM LINE, MRS. SHARMA WAS GUILTY.

    Reply
    • JyotiApril 21, 2017 at 8:21 am

      your reply was really fascinating and reflects the depth of your knowledge and interest. So, i’d just like to ask about the books you used to prepare yourself. 🙂

      Reply

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