A-87

GUJARAT NATIONAL LAW UNIVERSITY

FIRST YEARS’ INTRA MOOT COMPETITION, 2018

IN THE HONOURABLE SUPREME COURT OF NORD

PETITION FOR SPECIAL LEAVE TO APPEAL (C) NOS. 49 OF 2018

(ARISING OUT OF IMPUGNED FINAL JUDGEMENT AND ORDER DATED IN W.P.
299 OF 2017 PASSED BY THE HIGH COURT OF HEGDEKAT)

UNDER ARTICLE 136(1) OF THE NORD CONSTITUTION

IN THE MATTER OF
Lexide Nord ....................................................................................Petitioner
v.
Mr. Shintaro Okamoto.....................................................................Respondent

Written Submission on behalf of the Petitioner

1
 TABLE OF CONTENTS

1. Index of Authorities…………………………………………………..3
2. List of Abbreviations………………………………………………….5
3. Statement of Jurisdiction………………………………………………6
4. Statement of facts………………………………………………………7
5. Issues Raised……………………………………………………………9
6. Summary of Arguments………………………………………………..10
7. Arguments Advanced…………………………………………………..11
8. Prayer…………………………………………………………………...21

2
 INDEX OF AUTHORITIES

BOOKS
 ARTHUR UNDERHILL, THE LAW OF TORTS (Butterworth 1946).
 RATANLAL & DHIRAJLAL, THE LAW OF TORTS (LexisNexis 27th 2016).
 SALMOND & HEUSTON, THE LAW OF TORTS (Thomson Professional Pub Canada
1996).

CASE LAWS
 Bata India Ltd. v. A. M. Turaz and Ors., 2012 online SCC DEL 5387.
 Blyth v. Birmingham Waterworks Co., 156 ER 1047.
 Butterfield v. Forrester, (1809) 11 East. 60.
 Dixon v. Holden, (1869) LR 7 Eq 488.
 Donoghue v. Stevenson, [1932] AC 562.
 Du Bost v. Beresford, (1810) 2 Camp 511.
 Hayward v. Thompson, (1981) 3 All ER 450 (458) (CA).
 KM Mathew v. KA Abraham, 2002 6 SCC 670.
 M.C. Mehta v. Union of India, (1987) 1 SCC 395.
 Northwestern Utilities, Ld v. London Guarantee and Accident Co., (1936) AC 108
125.
 Pandey Surendra Nath Sinha v. Bageshwari Pd., AIR 1961 Pat 164.
 Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
 Pullman v. Hill & Co., (1891) 1 QB 524.
 Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552.
 Rickards v. Lothian, (1913) AC 263.
 Rylands v. Fletcher, LR 3 HL 330.
 Sim v. Stretch, (1936) 2 ALL ER 1237.
 Smoldon v Whitworth & Nolan, (1997) PIQR P133
 South Hetton Coal Co Ltd v North-Eastern News Association Ltd, (1894) 1 QB 133.
 Subramaniam Swamy v. Union of India, 2016 7 SCC 221.
 Sushil Ansal v. State through CBI, (2014) 6 SCC 173.
 Taylor v. Rover Co. Ltd. and Ors., [1966] 1 WLR 1491.

3
  Vishwanath Agrawal v. Sarla Vishwanath Agrawal, 2012 7 SCC 288.

ONLINE SOURCES

The Wired, When Active Safety Systems Fail, Who Pays? (August 4, 1:15 pm),
https://www.wired.com/2011/06/active-safety-systems/

4
 LIST OF ABBREVIATIONS

& And
AC Law Reports, Appeal Cases (Third Series)
AIR All India Reporter
All Er All England Law Reports
Anr. Another
CA Court of Appeal
Co. Company
ECU Electronic Control Unit
HL House of Lords
Hon’ble Honourable
Jig-gie Jig-gie Automotive Components
Lexide Lexide Mobility Systems S.A.
LIIT Long Island Interstate Thoroughfare
LR Law Reports
Ltd. Limited
Mr. Mister
NNE NIX Nord Exchange
Ors. Others
Pat Patna High Court
PIQR Personal Injuries and Quantum Reports
QB Queen’s Bench
SC Supreme Court
SD Secured Digital
SCC Supreme Court Cases
SKAP SK Agro Product
TFN Transport For Nord
v. Versus
WLR Weekly Law Reports (UK)

5
 STATEMENT OF JURISDICTION

The Counsels for the Petitioner have approached this Honourable Court under Article 136 of
the Constitution of Nord to file a Special Leave Petition against the order of the High Court
of Hegdekat.

6
 STATEMENT OF FACTS

1. Lexide Mobility Systems S.A. (Lexide) is a pioneer in semi-autonomous cars,

incorporated in the city of Pitschi, Republic of Weisenbuhl. Lexide EV is a five door
semi-autonomous sports utility vehicle, manufactured by Lexide.
2. The Lexide EV uses a combination of on-board automated vehicle control system –
Smart Assist. Smart Assist uses a combination of technology to maintain the optimum
speed of the car and to keep it in its lane of travel.
3. The user is manually required to enable the software of Smart Assist, which typically
takes about 10-15 minutes to install. The pre-installed version of Smart Assist
(version 5.3) only showed a visual warning “HOLD STEERING WHEEL”, in case
no engagement by the driver is detected for a period greater than 180 seconds.
However, the latest version of Smart Assist (version 8.4) displays a warning if the
system hasn’t detected engagement by the driver for a period greater than 150
seconds. The second warning is in the form of an auditory chime. The third warning
comes in the form of a louder chime.
4. The Lexide EV manual slates certain restrictions on the driver, whereby the driver is
required to drive only on dry,straight roads, such as highways and freeways. It also
states that the driver is required to keep his hands on the wheel at all times.
Furthermore, Lexide EV stores data in a non-volatile using a removable secured
digital card (SD card) installed within the vehicle’s electronic control unit (ECU).
5. Lexide expanded to Nord by establishing a wholly owned subsidiary in the form of
Lexide Mobility Systems (Lexide Nord) in January, 2014, after testing Lexide EV on
Nord streets. They entered into an agreement (Exclusive Supply Agreement) with Jig
Gie Automotive Components on 19 January, 2014 for the supply of sensors required
to manufacture Lexide EV for the Nord market for a period of 10 years.
6. On 9 June, 2015, Lexide EV was commercially launched in the markets of Nord,
becoming an instant success.
7. On 20 August, 2016, Jig Gie sent a written notice to Lexide Nord informing that a
single lot of sensors supplied under the “Exclusive Supply Agreement” were faulty,
due to a manufacturing defect. Lexide Nord initiated a voluntary product recall on 12
September 2016, concerned with the safety of its customers. The owners of Lexide
EV were urged to bring their cars to an authorised Lexide dealership to check whether
their cars were affected by the faulty sensors. In the absence of legislation mandating

7
 product recalls, such an initiative by Lexide Nord was much appreciated by the Nord
media.
8. Mr. Shintaro Okamoto, managing director of SK Agro Products Limited (“SKAP”),
had purchased the Lexide EV from Beaumont Lexide, an authorised Lexide car
dealership on 30 August 2015. He used to drive the vehicle to and from work on the
Long Island Interstate Thoroughfare (LIIT), connecting the Nordian cities of Elke and
Hedgekat.
9. On 21 December 2016, at 9:43 am, Mr. Okamoto’s car, bound westward on the LIIT,
struck a refrigerated truck-tractor, heading eastward, while the truck was making a left
turn onto Rue de Bahnhof, a local paved road. Mr. Okamoto was severely injured,
while the driver of the truck sustained no injuries.
10. The system performance data downloaded from Mr. Okamoto’s car’s SD card
revealed that he had not updated to the latest version (Version 8.4) of the Smart
Assist. Further, it was revealed that during the 48-minute trip, Smart Assist was active
for 33 minutes. The system displayed the initial visual warning (Hold Steering
Wheel) to the driver 9 times. The Smart Assist did not detect Mr. Okamoto’s hands on
the wheels for a period of 6 minutes. Mr. Okamoto was using the car’s speech to text
features to write e-mails to his colleagues.
11. Lexide Nord’s car services records revealed that Mr. Okamoto had failed to
participate in the product recall initiated by Lexide Nord on 12 September, 2016. Post
the accident, Mr. Okamoto’s car was inspected by the TFN (Transport for Nord) and
revealed no anomalies within the motor system. Reports also confirmed that Mr.
Okamoto was not intoxicated. The accident was widely covered by the Nord media.
12. A local English daily, Nord News, published excerpts from an interview with Mr.
Okamoto regarding the accident on the front page of the print edition (Okamoto
defeats Lexide Nord) on 23rd December, 2016. Mr. Okamoto accused Lexide Nord of
being negligent. By that evening, the stock value of Lexide Nord dropped by 1.5
million Nord dollars.
13. Enraged by the damages caused to the company, Lexide Nord sued Mr. Okamoto for
civil defamation in the High Court of Hegdekat. Mr. Okamoto counter-sued Lexide
Nord, holding it strictly liable for the accident. In a common judgement rendered on
15th July, 2017, the High Court held Lexide Nord liable for the accident and dismissed
Lexide’s allegations of defamation against Mr. Okamoto.

8
 ISSUES RAISED

I) Whether the Respondent (Mr. Okamoto) defamed the Petitioner (Lexide

Nord)?

II) Whether the Petitioner was negligent to the Respondent (Mr. Okamoto)?

III) Whether the Petitioner (Lexide Nord) is strictly liable for the accident
involving the Respondent (Mr. Okamoto)’s car?

9
 SUMMARY OF ARGUMENTS

I) Whether the Respondent (Mr. Okamoto) defamed the Petitioner (Lexide

Nord)?
The Respondent is liable for defamation because the statement is false,
defamatory, in writing and published in Nord News and various other newspapers
of Nord. The statements lower the reputation of the Petitioner in the standard of
right thinking members of the society and impede his business and trade practices.
As a consequence of the Respondent’s statements, the Petitioner lost 1.5 million
Nord dollars in the stock exchange of Nord.
II) Whether the Petitioner was negligent to the Respondent (Mr. Okamoto)?
The Petitioner is not responsible for negligence because a legal duty of care did
not exist, there was no breach of legal duty and the damages ensued by the
Respondent were not the consequences of the actions of the Petitioner. Even if a
duty of care existed, the Petitioner took due care and had placed several
precautionary measures to ensure the safety of their customers. The injuries
sustained by the Respondent were not the consequences of the Petitioner’s actions
but because of lack of care and prudence on part of the Respondent.

III) Whether the Petitioner (Lexide Nord) is strictly liable for the accident involving
the Respondent (Mr. Okamoto)’s car?

The Petitioner is not strictly liable for the accident involving the Respondent’s car
because the Respondent was at fault and Act of third party (Jig-gie). The
Respondent did not take part in the product recall initiated by the Petitioner, he
did not follow the manual guide of the Lexide EV and he was constantly using the
speech to text features of the car to send emails to his colleagues. The third party
(Jig-gie) supplied the motor sensors to the Petitioner for assembling the Lexide
EV. The Petitioner was under no duty to overlook the sensors because when he
had been supplied the sensors, he assumed that they were not faulty and that Jig-
gie had excercised due care and prudence. The Petitioner can’t be held liable for
the acts of the party over which he had no authority to oversee.

10
 ARGUMENTS ADVANCED

I) I) Whether the Respondent (Mr. Okamoto) defamed the Petitioner (Lexide

Nord)?
Lexide Nord (hereafter referred to as “The Petitioner”) submits that he has been
defamed by the Respondent and that Mr. Okamoto’s statements in the “Nord
News”, English daily in the Republic of Nord can be classified as libel.

To this effect, we shall establish the various elements of defamation and how they existed in
the present case.

“A libel is defamation in some permanent form, e.g., a written or printed defamation. A libel
is an infringement of a right and actual damages need not be proved in order to sustain an
action.” 1

The four essential elements of a libellous statement are –

i) The statement must be false

ii) The statement must be defamatory

iii) The statement must be in writing

iv) The statement must be published

I.1) The statement was false

In his interview, Mr. Okamoto says, “Corporations and their founders have, in the urge to
revolutionize human interaction with technology, often been negligent while placing the cart
before the horse. Companies like Lexide are a classic example of how customers have been
reduced to being nothing less than guinea pigs for ill-planned, and often life threatening,
backyard corporate experiments.”2

1
27 RATANLAL & DHIRAJLAL, THE LAW OF TORTS 268 (LexisNexis 27th 2016).
2
Fact Sheet, 30.

11
An established principle of law in cases of defamation is that the burden of proof that the
statement is false does not lie on the plaintiff.3 The Hon’ble Supreme Court of India has
reiterated this view in Subramanian Swamy v. Union of India4.

In the light of the aforementioned established principle of law, the petitioner contends that in
the case present before this Hon’ble court may consider the statement to be false unless the
contrary is established by the respondent.

I.2) The statement of the Respondent was defamatory

Salmond & Heuston on the Law of Torts define a defamatory statement as “one which has a
tendency to injure the reputation of the person to whom it refers; which tends, that is to say,
to lower him in the estimation of right thinking members of society generally and in
particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear,
dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking
member of society…”.5 The Hon’ble High Court of Delhi6 relied on this definition to
establish the meaning of defamatory statement.

The same was referred to by the Hon’ble Supreme Court of India in Subramaniam Swamy v.
Union of India.7 The Hon’ble Court has further observed that reputation is not only “a most
treasured perfume”, but also a cherished value generator this side of the grave. It is a means
of generating revenue in a lifetime, as well as for posterity.8 Thus, the Petitioner would like to
establish that reputation of any individual or entity is of supreme importance, and the
Petitioner losing his reputation would hinder the Petitioner’s work and business.

In Dixon v. Holden9, it was held that “a man’s reputation is his property, more valuable than
other property.” The Petitioner, as a multinational sports utility vehicle manufacturing
company, enjoyed a good reputation in the society. It saw a huge commercial success as soon
as it was launched in the markets of Nord until the defamatory statements by the Respondent
were published. Any injury to the reputation of the Petitioner would affect the Petitioner’s
business in the markets of Nord and without a good reputation the Petitioner’s status in the
Nord markets would be diminished.
3
27 RATANLAL & DHIRAJLAL, THE LAW OF TORTS 269 (LexisNexis 27th 2016).
4
2016 7 SCC 221.
5
20 SALMOND & HEUSTON, THE LAW OF TORTS (Thomson Professional Pub Canada 1996).
6
Bata India Ltd. v. A. M. Turaz and Ors., 2012 online SCC DEL 5387.
7
Subramaniam Swamy v. Union of India, 2016 7 SCC 221.
8
Vishwanath Agrawal v. Sarla Vishwanath Agrawal, 2012 7 SCC 288.
9
Dixon v. Holden, (1869) LR 7 Eq 488.

12
“Any statement which tends to injure a person in his profession or trade is deemed
defamatory.”10 A company or a corporation may sue for a libel calculated to injure them in
their business and may not need to prove special damges11Mr. Okamoto’s statements led to
Lexide Nord losing a sum of 1.5 million Nord dollars in the NNE (NIX Nord Exchange). By
the evening of 23rd December, when the print edition containing the defamatory statement
was published, the stock value of Lexide Nord had come down. The company lost out on
business and the Respondent’s statement hindered any future business that the Company
would enter.

The test that is applied is whether the words would “tend to lower the plaintiff in the
estimation of right-thinking members of the society generally”12. The fact that the Petitioner
lost a lot of business on the day that the Respondent’s statement was published show that the
Petitioner had been lowered in the estimation of right-thinking members of the society.

In the light of the aforementioned definition and observations, the Petitioner contents that the
Respondent’s allegation that Lexide Nord was negligent and that it used consumers as
“guinea pigs” for scientific experiment is false, derogatory and defamatory in nature and that
the Respondent’s statements lower the reputation of the Petitioner as a well-established semi-
autonomous vehicle manufacturing company. It is further submitted on behalf of the
Petitioner that the launch of Lexide EV was neither “ill-planned” nor a “backyard corporate
experiment”. The Petitioner conducted an elaborate set of experiments before the vehicle was
commercially launched in the streets of Nord.

I.3) The statement was in writing

Any defamatory statement “must be in writing or print, or may be conveyed in the form of
caricatures or any other similar representations”13 to be classified as a libel.

In the present case, the defamatory statement was in the form of a print edition of the English
daily Nord News, dated 23rd December, 2016 and as a headline in most other newspapers of
Nord read “Okamoto brings down Lexide”14 and can therefore be considered as in writing for
the purpose of libel.

10
27 RATANLAL & DHIRAJLAL, THE LAW OF TORTS 271 (LexisNexis 27th 2016).
11
South Hetton Coal Co Ltd v North-Eastern News Association Ltd[1894] 1 QB 133, CA

12
Sim v. Stretch, (1936) 2 ALL ER 1237.
13
Du Bost v. Beresford, (1810) 2 Camp 511.
14
Fact Sheet, 30.

13
 I.4) The statement was published in Nord News and various other newspapers
The rule of law with respect to defamation is that the defamatory statement should be
published to a third party, i.e. somebody other than the party about whom the statement is
made.15

In the matter of Pandey Surendra Nath Sinha v. Bageshwari Pd.16, the High Court of Patna
has observed that “a wrong of defamation, as such, consists in the publication of a false and
defamatory statement concerning another person without lawful justification”.

There is no doubt in the minds of the Hon’ble Supreme Court of India that printing and
distributing a libellous matter in newspaper/s amounts to publication.17

As soon as the print edition of the Nord News (dated 23rd December 2016) was circulated, the
defamatory statement by Mr. Okamoto was published for the world to see. Therefore, the
Petitioner submits that there was publication and that publication lowered the reputation of
Lexide Nord in the minds of right thinking members of the society and exposed them to
ridicule or hatred or contempt, as mentioned in I) ii).

Hereby, the Counsel for the Petitioner humbly submits to this court that all the elements of
defamation are fulfilled in the present case and that the Respondent is liable for defamation.

15
Pullman v. Hill & Co., (1891) 1 QB 524.
16
Pandey Surendra Nath Sinha v. Bageshwari Pd., AIR 1961 Pat 164.
17
KM Mathew v. KA Abraham, 2002 6 SCC 670.

14
II. Whether or not Lexide Nord was negligent?

Under the Law of Torts, there are three essential elements of negligence18. They are -

1. A legal duty to exercise due care

2. A breach of the duty of care

3. Consequential damages

In the present case the Counsels for the Petitioner humbly submit that the Petitioner: 1) did
not owe a duty of care to the Respondent (II.1) 2) did not breach the legal duty of care (II.2)
3) was not responsible for the consequential damage (II.3).

II.1) A legal duty of care did not exist

Lord Atkin, in Donoghue v. Stevenson19, defined duty of care as one’s responsibility to take
‘reasonable care to avoid acts or omissions which you can reasonably foresee would be like
to injure your neighbor.’ Explaining who this neighbor is, Lord Atkin held that “the persons
who are so closely and directly affected by my act that I ought 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”.

In the case present before the court, the Respondent had bought the Lexide EV vehicle from
Beaumont Lexide, an authorised car dealership of Lexide Nord. The Petitioner here is the
manufacturer and in this light, it is pertinent to establish whether the manufacturer owed a
duty to the Respondent.

“A manufacturer is not liable for the negligence of an agent or independent contractor who
supplies parts or does work or his product, provided that he takes reasonable care to see that
the parts supplied by the agent can properly be used to put the product in a condition in
which it can safely be used or consumed by the ultimate user or consumer.” 20

A parallel can be drawn between the present case and the English case of Taylor v. Rover
Company Ltd. and others. In the latter, the manufacturer had engaged a third party to do the
hardening of the chisel, but a defect arose during the process of hardening due to excessive

18
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
19
Donoghue (or McAlister) v Stevenson, [1932] AC 562.
20
Taylor v. Rover Co. Ltd. and Ors., [1966] 1 WLR 1491.

15
heat treatment. The Court, ruling in favour of the manufacturer, held that “the manufacturers
were entitled to assume, having got competent hardeners to do the hardening of the chisel,
that the work had been properly done, and it was no part of their duty in law to test the chisel
for hardness when it was received from the agents”

Similarly, the Petitioner had entered into a contract with Jig-gie Automotive Components, a
competent supplier, for the supply of sensors for a period of ten years (The “Exclusive
Supply Agreement”, dated January 19, 2014).21 When the Petitioner received the sensors
from Jig-gie, it was assumed by the Petitioner that the sensors were without fault and that the
agent (Jig-gie) had discharged their duty with prudence. There were no design defects in the
motor vehicle and all the parts were put together in such a manner that they could safely be
used by the consumer.

The Petitioner therefore contends that he owed no legal duty to check the working of the
sensors, and hence it can be established that there was no legal duty of care.

II.2) That there was no breach of legal duty

It has already been established that there is no legal duty of care and in the absence of a duty
of care, there cannot be a breach of a duty. However, even if for the sake of argument it is
assumed that a duty of care existed, the Petitioner still acted prudently and in a manner that a
reasonable man would have.

The test for deciding whether there was a breach of duty is that of a reasonable and prudent
man. The question to be asked is “whether the defendant has omitted to do something which a
reasonable and prudent man, guided by those considerations which ordinarily regulate the
conduct of human affairs would have done or has he done something which a reasonable or
prudent man would not have done.”22

The Lexide EV manual emphasises on the fact that there must be constant interaction of the
driver’s hands with the wheel. If driver engagement is insufficient or is not present at all, the
Smart Assist technology gets deactivated. Moreover, a semi-autonomous vehicles is deisgned
to function only with a driver’s input and attention23. Inspite of all these warnings and safety
measures issued by the Petitioner, when Jig-gie informed them of a malfunctioning in a lot of

21
Fact Sheet, 17.
22
Blyth v. Birmingham Waterworks Co., 156 ER 1047.
23
The Wired, When Active Safety Systems Fail, Who Pays? (August 4, 1:15pm),
https://www.wired.com/2011/06/active-safety-systems/.

16
sensors, the Petitioner recalled the products. The product recall initiated by the Company on
12 September, 2016 was an act of prudence. By doing so, the Petitioner did what a reasonable
man would have done in the given set of circumstances, i.e. to ensure the safety and security
of its customers that may indirectly be affected by the malfunctioning sensors. All the
consumers of Lexide EV were urged to bring their cars to an authorised Lexide Nord
dealership to check whether their cars had been affected by the malfunctioning sensors. A
pertinent fact in the present case is that although the laws of Nord did not mandate a product
recall, the Petitioner still initiated the voluntary product recall as quickly as possible.

“Negligence does not entail liability unless the law exacts a duty in the given circumstances
to observe care”24 In the absence of any legislation, the Petitioner was not bound by law or
under any legal duty to initiate a product recall, but did so taking into consideration the safety
and security of the Petitioner’s customers. The actions of the Company were in the general
interest of the customers and were much appreciated by the media in Nord.

It can thus be summarised that the Petitioner did not breach any duty of care. In fact, they
took precautionary measures to ensure that all the vehicles with the faulty sensors could be
identified.

II.3) The Petitioner is not responsible for the consequential damages

Cause of action for negligence arises only when damage occurs for damage is a necessary
ingredient of this tort. But as damage may occur before it is discovered; it is the occurrence of
damage, which is the starting point of the cause of action. 25 An injury or damage is
proximately caused by an act, or a failure to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission.26

In Sushil Ansal v. State through CBI27, the defendant had closed one door of a cinema hall to
accommodate more chairs and when a fire occurred, several people were injured. Here, the
actions of the defendant directly led to the damages suffered by the plaintiffs. Another case
that brings to our notice the concept of consequential damges is Smoldon v Whitworth &

24
Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552.
25
25 RATANLAL & DHIRAJLAL, THE LAW OF TORTS 485 (Wadhwa & Company Nagpur 2008).
26
Sushil Ansal v. State through CBI, (2014) 6 SCC 173.
27
Id.

17
Nolan28. In this case, while playing a rugby match, the plaintiff suffered injuries to his neck
when a serum collapsed. He brought a suit against a member of the opposing team, that a
duty of care existed. However, it was dismissed on the grounds that the injuries incurred by
the Plaintiff were not the consequences of the actions of the defendant, who did not owe him
any duty of care.

The present fact situation falls under the category of the latter case. The Petitioner here did
not owe a duty of care, as has already been established and the injuries suffered by the
Respondent was not because of the consequences of the Petitioner’s actions. The Respondent
suffered injuries because he failed to establish engagement with the wheel, which a requisite
for driving the Lexide EV, as stated in its manual.

In the light of aforementioned settled principle of law, it is submitted that the petitioner
therefore, is not responsible for consequential damages.

28
[1997] PIQR P133, CA.

18
III) That the Petitioner is not strictly liable for the accident involving the Respondent’s
car.

The doctrine of strict liability is upheld when the defendant is held liable irrespective of
29
whether he could have avoided the particular harm by taking precautions. However, the
Court has laid down that “the defendant can excuse himself by showing that the escape was
owing to the plaintiff’s own default”30. Therefore, the Plaintiff absolves himself of strict
liability by proving 1) Plaintiff’s own default (III.1) and 2) Wrongful act of third party
(III.2).

III.1) That there was contributory negligence on part of the plaintiff

It is the common law rule that anyone who by his own negligence contributed to the injury of
which he complains cannot maintain an action against another in respect of it. For he will be
considered in law to be author of his wrong. This rule was laid down in Butterfield v.
Forrester31. It is important to mention here that the manual of Lexide EV clearly stated that
there must be constant driver engagement while driving. However, data extracted from the
SD card of the car revealed that Smart Assist did not detect the Respondent’s hands on the
wheels for nearly 6 minutes. The initial visual Warning “Hold Steering Wheel” was displayed
to the Respondent nine times. It was also revealed that the Respondent was using the speech
to text features of the car to send emails to his colleagues.

The Respondent had not updated to the latest version (Version 8.4) of the software on Lexide
EV. Version 8.4 gave a series of warnings to the driver when it does not detect engagement
of the driver with the wheel. It first displayed a visual warning (“Hold Steering Wheel”) and
subsequently, it warned the driver with a series of two auditory chimes – the latter louder
than the former. If driver engagement with the wheel is still not detected, a final warning is
given which reads “To Maintain Set Speed Place Hands On Wheel.” Although the Petitioner
did not mandate the update of the software and the customer could do it at his own leisure,
the Respondent had not updated to the newer version at the time of the accident, which
happened 15 days after the latest version had been rolled out.

The fact here of utmost importance is that the Respondent did not participate
in the voluntary product recall initiated by the Petitioner.

29
M.C. Mehta v. Union of India, (1987) 1 SCC 421.
30
Rylands v. Fletcher, LR 3 HL 330.
31
(1809) 11 East 60.

19
“When he has by his own want of care so far contributed to the damage occasioned by the
negligence or improper conduct of the defendant that but for want of care the damage would
not have occurred32” The Respondent’s omission to participate in the product recall and to
get his vehicle checked directly resulted in the accident. The Respondent could have avoided
the accident, but because of his lack of want of care, the consequential accident occurred.

Hence, it is humbly sumbitted that the Petitioner can’t be held liable for strict liability in lieu
of the fact that the Respondent was at fault.

III.2) The Petitioner is not liable for the acts of Jig-gie (the third party)

The Petitioner did not manufacture the motor sensors used in manufacturing the Lexide EV
vehicle, but entered into a contract with an entity called Jig-gie for the supply of motor
sensors. In this case, jig-gie becomes the third party and the Petitioner cannot be held
accountable for the acts of the third party “He is not responsible for damage not due to his
own default, whether that damage be caused by inevitable accidents or wrongful acts of third
persons.33”

The Petitioner has already established tha the present fact situation is similar to that in
Taylor v. Rover Co. Ltd. and Ors.,34 where the manufacturer of the chisel had no duty to
oversee the hardening because he had authorised an agent to do so, and he assumed that the
agent had discharged his duty diligently. “The defendant may still be held liable if he failed in
foreseeing and guarding against the consequences to his works of that third party’s act.35
The Petitioner here was under no obligation to foresee or guard against the consequences of
the act of the third party.

Therefore, the Petitioner cannot be held liable for strict liability in lieu of the fact that a third
party (Jig-gie Automotive Components) was liable for the faulty sensors of the car.

32
15 ARTHUR UNDERHILL, THE LAW OF TORTS 186 (Butterworth 1946).
33
Rickards v. Lothian, (1913) AC 263.
34
[1966] 1 WLR 1491.
35
Northwestern Utilities, Ltd v. London Guarantee and Accident Co., (1936) AC 108 125.

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 PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court
of Nord, the Petitioner requests the Court to-

i) Grant Special Leave to the Petitioner to appeal under Article 136 of the
Constitution of Nord against the final impugned judgment and order dated 15th
July 2017 passed by the Hon’ble High Court of Hegdekat in Writ Petition No. 299
of 2017.
ii) Clear the Petitioner of the charges of negligence and strict liability

iii) Hold the Respondent liable for civil defamation.

iv) Hold that the Respondent owes 1.5 million Nord dollars as compensation to Lexide
Nord, and whatever amount the Court may deem fit.

All of which is most respectfully, humbly and equitably submitted and affirmed before this
Hon’ble Supreme Court.

In respectful submission before the Supreme Court,

Counsels on behalf of Lexide Nord (Petitioner).

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