STRICT LIABILITY

PROF C J RAWANDALE
INTRODUCTION

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¢ To make one liable under the law of torts, one must prove a violation of
legal duty due to the defendant’s fault, negligence or wrongful
intent.

¢ The doctrine of ‘Strict Liability’ is an exception to this general

rule and makes some persons responsible for damages due to their
actions or products, regardless of any “fault”.

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¢ Illustration:
¢ Strict liability often applies when people engage in inherently hazardous
activities, such as ‘blasting’ in a city or keeping wild circus animals.
¢ If the blasting damages, it does not matter how careful it was – it is liable
for the injury.
¢ If the animals escape and injure someone, the fact that the circus used
the world’s strongest cages and the highest standard of care imaginable
will not let it get off the hook

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ORIGIN

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¢ Rylands v. Fletcher (1868) LR 3 HL 330

¢ John Rylands and Thomas Fletcher were neighbours. Fletcher was

running a coal mine on lease. Rylands desired to construct a water
reservoir on his land for storing water and supplying it to the Ainsworth
Mill. R gave this job to an independent contractor.
¢ While working on the water reservoir, the workmen belonging to the
independent contractor came across some old disused shafts. They did
not properly pack those.
¢ After the completion of the work, when water was filled in the reservoir,
those improperly packed old disused shafts succumbed to the pressure
and water percolated through to the coal mine, and Fletcher could not
carry any work, thus suffering losses. He went to the court for redressal.
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FIRST STAGE:

¢ A special case was stated by an arbitrator for the Court of Exchequer.

The arbitrator found that the contractors, but not the defendants, had
been negligent. On that basis, the Court of Exchequer questioned
whether the plaintiff was entitled to recover damages against the
defendants.
¢ The Court of the Exchequer, by a majority - Pollock CB and Martin
B- decided to favour the defendants. Martin B held that in such a case,
there could be no liability without negligence because otherwise, the
defendant would be an insurer, which, in his view, would be contrary to
legal analogy and principle.
¢ Baron Bramwell dissented, holding that the defendant should be
liable based on strict liability.

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SECOND STAGE:
¢ The case went on appeal to the Court of Exchequer Chamber.
Blackburn J delivered the judgment of the Court, finding for the plaintiff
Mr. Fletcher. Despite the absence of proof of negligence on the part of Mr.
Rylands, he was held liable according to Blackburn J's classic principle:
¢ “We think that the true rule of law is that a person who for his own
purposes brings on his lands and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural
consequence of its escape…”
¢ The defendants appealed in the House of Lords, and the plaintiff was again
successful. It observed: “If a person brings or accumulates on his land
anything which, if it should escape, may cause damage to his neighbours,
he does so at his peril. If it does escape and cause damage, he is
responsible; however, he may have been careful, and whatever precaution
he may have to prevent the damage”.
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¢ Lord Cairns in House of Lords added requirement of non-natural use of
land.
ESSENTIALS

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¢ Read v Lyons, [1947] AC 157 at 173 (HL)
¢ “Now the strict liability recognised by this House in Rylands v. Fletcher
is conditioned by two elements which I may call the condition of ‘escape’
from the land of something likely to do mischief if it escapes, and the
condition of ‘non-natural use of land’ – Viscount Simon.
¢ The appellant was employed as an Inspector of Ammunition. The
explosion of a shell injured him while she performed her duties on the
respondent’s premises. Further, there was no proof of negligence on the
defendant’s part.
¢ The Court held that the injury was caused on the defendants' premises,
i.e. not outside, thus no escape. Therefore, the respondents were not
liable.

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2. NON-NATURAL USE OF LAND

¢ Sochacki v. Sas, (1947) 1 All ER 344

¢ B, a lodger in A’s house, lit a fire in his room and went out. While he was
out, his room caught fire may be due to the jumping of a spark. It spread
and damaged A’s property in the rest of the house.
¢ There was no evidence of negligence on the part of B. It was held that B
was not liable under Rylands v. Fletcher since using the fire in his grate
was an ordinary, natural, proper, everyday use of a fireplace in a room.

¢ T. C. Balkrishna Menon v.T.R. Subramanian, AIR 1968 Mad. 151

¢ The Court held that using explosives in an open field during a festival is a
“non-natural” user of land.

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¢ State of Punjab v. Modern Cultivators, AIR 1965 SC 17
¢ Due to the overflow of water from the canal, damage was done to the
plaintiff’s property. The Supreme Court held that land use for
constructing a canal system is normal, thus not non-natural land use.

¢ Mukesh Textile Mills v. Subramanya Sastry AIR 1987 Kar. 87

¢ A was the owner of a sugar factory. B owned land adjacent to A’s sugar
factory. A stored quantity of molasses escaped B’s land and damaged his
crop. B sued A.
¢ Collecting molasses in large quantities was held by the Court to be a
non-natural use of land, and if a person collected such things on his land
and escaped to neighbouring land, he was liable.
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¢ M. P. Electricity Board v. Shail Kumari, (2002) 2 SCC 162
¢ In this case, a live wire got snapped and fell on the public road which was
partially inundated with rainwater. Not noticing that wire, a cyclist, aged
37 years, while returning home at night from the factory where he was
employed, rode over the wire which twitched and snatched him and he
was instantaneously electrocuted.
¢ A claim for damages made by the dependents of the deceased was
resisted by the appellant State Electricity Board on the ground that the
electrocution was due to the clandestine pilferage committed by a
stranger unauthorisedly siphoning the electric energy from the supply
line.
¢ The High Court directed the Board to pay as compensation, Rs. 4.34
lakhs to the claimants.
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¢ The Board preferred an appeal before the Supreme Court. The appellant
sought to rely on the exception to the rule of strict liability being ‘an act
of stranger’.
¢ The Supreme Court held that “even assuming that all safety measures
had been adopted, a person undertaking an activity involving hazardous
or risky exposure to human life is liable under law of torts to
compensate for the injury suffered by any other person, irrespective of
any negligence or carelessness on the part of the mangers of such
undertaking. The basis of such liability is the foreseeable risk inherent in
the very nature of such activity. The liability cast on such person is
known, in law, “strict liability”.

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EXCEPTIONS TO THE RULE

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EXCEPTIONS TO THE RULE OF STRICT LIABILITY

¢ In the following circumstances, the rule of strict liability is not applicable.

q Plaintiff’s Consent
q Plaintiff’s Default
q Act of the Third Party (Stranger)
q Act of God/Vis Major
q Statutory Authority

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¢ Plaintiff ’s Consent:
¢ Where the artificial work is maintained with the plaintiff’s consent and for
the common benefit of the defendant, this rule does not apply.

¢ Balakh Glass Emporium v. United India Insurance Company Ltd.,

AIR 1993 Ker 342
¢ The defendant was held not liable when water escaped from upper floor
and damaged the lower floor because there was an implied consent by
occupier of lower floor to the normal use of water by the occupier of the
upper floor.

¢ Carstairs v.Taylor, (1871) LR 6 Ex. 217

¢ Taylor, the landlord, rented his upper story to the plaintiff. Taylor, for the
benefit of both maintained a rain water box for the benefit of both. Some
rats gnawed the water box which resulted into escape of water and
damaging the goods of the plaintiff. The defendant was held not liable 17as
there was plaintiff’s consent and no negligence on the part of the defendant.
2. PLAINTIFF’S OWN DEFAULT

¢ Plaintiff ’s Own Default:

¢ Damages reduced if claimant is partly at fault for the escape.

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3. ACT OF THIRD PARTY

¢ Act of Third Party (Stranger):

¢ Where escape is caused by the act of the third party over whom the
defendant has no control, he will not be liable.

¢ Rickards v. Lothian, (1913) AC 263

¢ The plaintiff was tenant of the defendant on the second floor. On the
fourth floor of defendant’s building a third party maliciously plugged up
the waste pipes and opened the water taps. As a result, the plaintiff’s
goods were damaged by the flow of water from the lavatory on the
fourth floor.
¢ The defendant was held not liable as it was an act of third party beyond
his control and no proof of negligence on his part.
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4. ACT OF GOD/VIS MAJOR

¢ Act of God (Vis Major):

¢ It will only succeed for conditions of nature ‘which no human foresight
can provide against’.

¢ Ryan v.Young, (1938) 1 All ER 522

¢ Driver of a lorry of the defendant died while driving the lorry which
thereon ran on and injured the plaintiff. The driver before dying appeared
to be in good health. Further defendant was not under duty to get the
driver medically examined. There was no fault in the lorry. The
defendant was held not liable.

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¢ State of Mysore v. Ramchandra, AIR 1972 Bom 92
¢ Constructing a water storage to increase the supply of water is natural
use of land and a permitted act, subject to application of emergency
measure. One such measure is to make arrangement for outlet of water
in case of emergency. It was not done in the present case which resulted
into the damage to the property of one and great loss thereby. The
defence of Act of God was not allowed.

¢ M. P. Electricity Board v. Shail Kumari, (2002) 2 SCC 162

¢ “But that [act of stranger] exception is not available to the Board as the
act attributed to the third respondent should reasonably have been
anticipated or at any rate its consequences should have been prevented
by the appellant board. 21
5. STATUTORY AUTHORITY

¢ Statutory Authority:
¢ Where the defendant is authorised or required under the law to
accumulate, keep or collect the dangerous things which escape or cause
mischief and injures the plaintiff, the rule of strict liability does not apply.
¢ Green v. Chelsea Waterworks, (1894) 70 LT 547
¢ The defendants were authorised by statute to store water for the
purposes of supply to the city. Owing to some accidental cause the
water escaped and caused injury to the plaintiff.
¢ The Court held that where the accumulation of water by the defendant
was not for their own purpose, and where they had been authorised by
statute to accumulate and keep it, they would not be responsible for any
escape, unless it is result of the negligent act of the defendants.
22
DO EXCEPTIONS TO THE STRICT
LIABILITY LEAD TO ‘NO LIABILITY’?

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¢ ‘We have virtually reached the position where a defendant will not be
considered liable when he would not be liable according to the ordinary
principles of negligence.’ – Prof Winfield.
¢ This repudiation of the principle in Rylands vs. Fletcher is contrary to
the modern judicial philosophy of social justice.

¢ England:
¢ The injustice may clearly be illustrated by the case of Pearson vs.
North Western Gas Board (1968) 2 All ER 669. The plaintiff was
seriously injured in an explosion of gas, which also destroyed their home,
killed her husband. Her action in Court failed, in view of the decision in
Dunne vs. North Western Gas Board (1964) 2 QB 806.
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¢ Dunne vs. North Western Gas Board (1964) 2 QB 806
¢ The Plaintiff, a girl of sixteen along with other members got injured when an
explosion blew her off her cycle. The explosions which caused these accidents arose
from a gas main and travelled along a sewer becoming mixed with air and so
becoming highly inflammable and explosive. She sought judgment in her favour on
the ground that the Gas Board were in breach of duty owed by them under the rule
in Rylands v. Fletcher.
¢ The Court held: “[Gas] escaped and did damage without any negligence on the part
of the defendants or of anyone else. It is not a case of an independent contractor
having been negligent as was the case in Rylands v. Fletcher, which brought about a
decision in wide terms imposing liability on a landowner for things which escaped
from his land, whereas in the present time the defendant’s liability in that case could
simply have been placed on the defendant’s failure of duty to take reasonable care to
protect the adjacent mines which were known to be there or which ought to have
been discovered with reasonable care, and in respect of such a duty it is no answer
to say that the failure was that of an independent contractor”. 25
¢ The decline of the rule in Rylands vs. Fletcher left the individual injured by the
activities of industrial society virtually without adequate protection.
¢ An attempt to provide solace to the people, in England, in 1978, the Royal
Commission on Civil Liability and Personal Injury headed by Pearson
(also popularly referred as Pearson Committee, 1973) was appointed.
¢ It recommended the introduction of strict liability in a number of circumstances
such as no fault insurance scheme for road traffic and industrial accidents,
similar to the subsequent New Zealand Accident Compensation Corporation,
and a scheme of strict liability for consumer protection for defective products,
including drugs, a proposal especially relevant to the thalidomide tragedy.

¢ (For further discussion, refer to Beverley Lang, The Employers Liability

(Defective Equipment) Act. Lion or Mouse?, The Modern Law Review, Vol. 47,
No. 1 (Jan., 1984), pp.48-56) 26
¢ None of these recommendations have so far been implemented, with
the exception of that related to defective products.

¢ Vivienne Harpwood has construed the position of strict liability after

the Pearson Committee then and today as follows: “It is extremely
unusual for a claim under the rule in Rylands v. Fletcher to reach the
courts today”. (See, Vivienne Harpwood, Modern Tort Law, (Routledge:
5th Edition, 2003) at p.242)

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THALIDOMIDE CASE

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¢ A German pharmaceutical company, Chemie Gruenthal at Stolberg,
synthesized thalidomide in West Germany in 1953 while searching for an
inexpensive method of manufacturing antibiotics from peptides.
¢ Thalidomide was first introduced in 1957 primarily as tranquillizer, a
medication prescribed particularly for imparting drowsiness and sleep.
Then it was given to pregnant women to provide them relief from
morning sickness and as an aid to help them sleep.
¢ Before it was removed from market, an estimated 8,000 to 12,000
infants were born with deformities caused by thalidomide, and of those
only about 5,000 survived beyond childhood.

¢ (For more information refer to Vijay V. Moghe, Ujjwala Kulkarni and

Urvashi I Parmar, Thalidomide, Bombay Hospital Journal, Vol. 50, No. 3,
2008. Also available at: (Last visited 18 October 2008))
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STRICT LIABILITY IN INDIA

¢ India:
¢ ”The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the
national life” – Article 38 (1) of the Constitution of India.
¢ Being a welfare state, it is the duty of the State under our Constitution
to look after the welfare of all its citizens.

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¢ In various social welfare statutes the principle of strict liability has been
provided to give insurance to people against death and injuries,
irrespective of fault.
¢ Section 3 of the Workmen's Compensation Act 1923 provides for
compensation for injuries arising out of and in the course of
employment, and this compensation is not for negligence on the part of
the employer but is a sort of insurance to workmen against certain risks
of accidents.
¢ Section 124A of the Railways Act 1989, Sections 140 and 163A
of the Motor Vehicles Act, 1988, the Public Liability Insurance
Act, 1991 incorporate the principle of strict liability.
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REJECTION OF “STRICT LIABILITY” &
THE DAWN OF “ABSOLUTE LIABILITY”

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¢ M.C. Mehta v. Union of India, AIR 1987 SC 1086
¢ Oleum gas leaked from one of the units of Shriram Foods and Fertilizers
Industries in New Delhi. It resulted into death of one of the advocate
and caused serious injuries to several others. A writ petition under
Article 32 of the Constitution was brought by way of public interest
litigation.
¢ The Court held that: “Law has to grow in order to satisfy the needs of
the fast changing society and keep abreast with the economic
developments, taking place in this country…Law cannot allow our
judicial thinking to be constrained by reference of the law as it prevails in
England or for the matter of that in any other foreign legal order.”

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¢ The Court also observed: “This rule evolved in the 19th Century at a time
when all these developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of liability consistent
with the constitutional norm and the needs of the present day economy
and social structure.” It further held that, “Application of exceptions to this
rule is inapplicable.”
¢ “…an enterprise, which is engaged in hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the
persons working in the factory and residing in the surrounding areas owes
an absolute and non-delegable duty to the community to ensure that
no harm results to anyone on account of hazardous or inherently
dangerous activity which it has undertaken.” – Chief Justice P N Bhagwati.

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¢ Union Carbide Corporation v. Union of India, AIR 1992 SC 248
¢ In December, 1984 Methyl Iso Cyanate and other toxic gases leaked
from the Union Carbide Corporation India Ltd. at Bhopal. About 2660
people died, several thousand suffered serious injuries which did not die
with that generation but also in cases got transferred to their next
generation.

¢ The Court on applying the principle of absolute liability held the

defendant liable to pay US $470 Million dollars by way of compensation
to the victims or relatives of the victims.

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¢ Indian Council of Enviro-Legal Action v. Union of India, AIR 1996 SC
1466
¢ The issues were two-fold in the case:
1. Should the Corporation be held responsible to meet the cost of the
remedial action to remove and store the sludge in safe and proper
manner?
2. Should they be made liable for the loss and suffering caused to the
village where the industrial complex was located?
¢ To answer this, the court re-emphasised the Mehta principle of absolute
liability. ‘Generator is responsible’ is the universal principle holding the
health care establishments legally accountable for damage caused by waste
management processes. The Court called it a rule of "Polluter pays" and
stated that the industry alone has the resources to discover and guard
against hazards and dangers caused by its actions.
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PROF C J RAWANDALE
PUBLIC LIABILITY INSURANCE ACT,
1991

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THE PUBLIC LIABILITY INSURANCE ACT, 1991

¢ The Public Liability Insurance Act, 1991 is an Act which provides for
public liability insurance for the purpose of providing immediate relief to
the persons affected by accident occurring while handling any hazardous
substance and for matters connected therewith or incidental thereto.

¢ Section 2 (a) defines accident as follows: “Accident means an accident

involving a fortuitous, sudden or unintentional occurrence while handling
any hazardous substance resulting in continuous intermittent or
repeated exposure to death, of or injury to, any person or damage to
any property but does not include an accident by reason only of war or
radio-activity.”
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¢ As per Section 3 (1) of the Act, where death or injury to any person
(other than a workman) or damage to any property has resulted from an
accident, the owner shall be liable to give such relief as specified in
Schedule for such death, injury or damage.

¢ Further, Section 3 (2) lays down that in any claim for relief under sub-
section (1)…the claimant shall not be required to plead and establish
that the death, injury or damage in respect of which the claim has been
made due to any wrongful act, neglect or default of any person.

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¢ The above provisions appear to be of immense help and assistance to
the victims of such hazardous or inherently dangerous activity. Once one
study Section 8, realises the hard reality. It reads as:

¢ “1. The right to claim relief under sub-section (1) of section 3 in respect
of death of, or injury to, any person or damage to any property shall be
in addition to any other right to claim compensation in respect thereof
under any other law for the time being in force.
¢ 2. Notwithstanding anything contained in sub-section (1), where in
respect of death of, or injury to, any person or damage to any property,
the owner, liable to give claim for relief, is also liable to pay compensation
under any other law, the amount of such compensation shall be
reduced by the amount of relief paid under this Act.
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 Thank You!

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