Doctrine of Attractive Nuisance and Negligence dwelled upon: DHC

The Delhi High Court recently had an opportunity to dwell on the concepts of ‘doctrine of attractive nuisance’ and ‘negligence’ under the tort law. The Court was dealing a case wherein six children died due to drowning in open drains.

Absolving the Delhi Government from the tortious liabilities on the facts of the case, the Court explained the doctrines.

Quoting Section 339 of the Restatement (Second) of Torts (Artificial Conditions Highly Dangerous to Trespassing Children) from USA, the Court agreed them as guiding principles applicable in India as well. The doctrine of attractive nuisance is an exception to the general rule that an owner/occupier of land had no obligation towards trespassers, except a duty not to inflict harm. Under the exception, an owner/occupier of land would be liable for harm caused to trespassing children if he knew or ought to have known that children being attracted to the condition or object on the land, would trespass; yet the owner/occupier had failed to take due care.

On negligence, the Court observed, “…..the question of negligence on the part of contesting respondent [Delhi Govt] would also have to be viewed in the context of whether the danger involved was plainly visible or concealed. In cases where a person permits a dangerous condition to persist, which is likely to catch others unaware, he could be accused to failing to discharge his obligations of due care. The danger must be unknown, concealed or hidden. This would, clearly, be the case where a manhole in a public area is left uncovered. This would act as a trap and is most certainly likely to injure and bring grief to a person who is caught unaware.”

Further while dealing with the evidentiary rule of res ipsa loquitur (the thing speaks for itself), the Court mentioned the three conditions to attract its applicability, namely; (i) the accident must be of a kind which does not ordinarily occur in the absence of someone’s negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

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