ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW
SESSION 2019-20

PROJECT WORK
SUBJECT – LAW OF TORT 2
TOPIC – THE PRINCIPLES OF STRICT AND
ABSOLUTE LIABILITY : A COMPARISION

SUBMITTED BY
NAME : RUPESH KUMAR SINGH
CLASS : B.A. LL.B (2ND SEM) SECTION – ‘A’
ROLL NO. : 19BALLB004
ENROLL NO. : GJ9731

SUBMITTED TO
NAME : RABAB KHAN
(ASSISTANT PROFESSOR)
DEPARTMENT OF LAW
 ACKNOWLEDGEMENT

Primarily, I would like to thank God for making me able to complete this
project with success. Then I would like to express my sincere gratitude to
Prof. Rabab Khan, Faculty of Law, AMU, who gave me the golden
opportunity to do this project work on the Topic – “Principles of Strict
and Absolute Liability : A Comparision” and gave her valuable
guidance for preparing this project work, that helped me a lot in doing
my research and I came to Know about so many things.

Secondly, I would like to thank my parents for their blessings and friends
who have helped me with their valuable suggestions and guidance and to
all those people who directly and indirectly help me in completing this
project work in limited time frame.

I pay my sincere gratitude to all those who share valuable thoughts with
me.
 SYNOPSIS

 INTRODUCTION
 THE RULE OF STRICT LIABILITY
 ESSENTIALS FOR STRICT LIABILITY RULE
 EXCEPTIONS TO THE RULE
 THE RULE OF ABSOLUTE LIABILITY
 DISTINCTION BETWEEN STRICT & ABSOLUTE LIABILITY
 NEED FOR CHANGE
 THE BHOPAL GAS LEAK DISASTER CASE
 PUBLIC LIABILITY INSURANCE ACT, 1991
 CONCLUSION
 BIBLIOGRAPHY
 PRINCIPLES OF STRICT AND ABSOLUTE
LIABILITY: A COMPARISION

INRODUCTION
There are situations when a person may be liable for some harm even though he is not negligent in
causing the same, or there is no intention to cause harm, even have made positive efforts to avert the
same, law recognizes as ‘No fault liability’. The rules were laid down in two cases, firstly, in the
decision of House of Lords in Rylands v Fletcher,1 and secondly, in the decision of Hon’ble SC of
India in M. C. Mehta v Union of India,2 may be noted.
The rule laid down in Rylands v. Fletcher is generally known as as the Rule of Strict Liability.
Because of the various exceptions available to this rule, it would be preferable to call it as rule of
Strict liability, rather rule of Absolute liability.3
While formulating the rule in M.C. Mehta v. Union of India (Oleum gas leak case), the SC itself
termed the liability recognized in this case as Absolute liability, and stated that such liability will not
be subjected to such exceptions as have been recognized under Rylands v. Fletcher.
The two rules are being discussed below in detail:

THE RULE OF STRICT LIABILITY

In Rylands v. Fletcher (1868), the House of Lords laid down the rule reconising ‘No Fault
Liability’, also known as ‘Strict Liability’, that is, even if the defendant was not negligent or did not
intentionally cause harm or he was careful, he could still be made liable under the rule.
Facts of the case are, the defendant got a reservoir constructed, through independent contractors,
over his land for providing water to his mill. There were old disused shafts under the site of
reservoir, which the contractors failed to observe and so did not block them. When the water was
filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on the
adjoining land. The defendant didn’t know them, although the independent contractors had been.
Even though the defendant had not been negligent, he was held liable.

1
(1868) L.R. 3 H.L. 330
2
A.I.R. 1987 S.C. 1086
3
Winfield, Tort, 11th ed., p. 401; Winfield : The Myth of Absolute Liability, (1926) 42 L.Q.R. 37, 51. Winfield prefers to
name it as “Strict” rather than “Absolute” liabilty because of various exceptions to this rue.
By explaining the rule of No Fault Liability, BLACKBURN J4 propounded that:
“We think that the rule of law, that the person who for his own purposes brings on his lands and
keeps there anything likely to do mischief if it escapes, must be keep it in his peril, and if he doesn’t
do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps
that the escape was the consequence of vis major ( the act of God) ; but as nothing of this sort exists
here, it is unnecessary to inquire what excuse would be sufficient.”
To the above rule laid down laid down by Blackburn J. another important qualification was made by
House of Lords when the case came before it. It was held that for the liability under the rule, the use
of land should be “Non Natural” as was the position in Rylands v. Fletcher itself.5

ESSENTIALS FOR STRICT LIABILITY RULE

For the application of the rule, the following three essentials should be there :
i. Some dangerous thing must have been brought by a person on his land.
ii. The thing thus, brought by a person on his land must escape.
iii. It must be non natural use of land.

1).Dangerous thing
The status of being a dangerous thing is given to thing only when it sets itself free from person’s
land who had brought it and causes severe harm to someone else or its property. Provided thing
collected was a dangerous thing, i.e. a thing likely to do mischief if escapes “huge quantities of
dangerous things” like, gas, electricity, water, explosives, rusty wire etc.

2).Escape
An object or thing causing damage and harm to others attain the status of ‘escape’ when it sets
itself from the occupation and control of its owner. The case of Read v. Lycons & Co,6 where there
was no escape therefore, there was no liability.

3).Non- Natural use of land

For the use to be non natural, it ‘must be some special use bringing with it increased danger to
others, and must not by merely the ordinary use of land or such a use as is proper for the general
benefit of the community.’7 In Sochaki v. Sas,8 it has been held that the fire in a house in a grate is

4
The rule was formulated by Blackburn , J. in Exchequer Chamber in Rylands v. Fletcher, (1868) L.R. 1 Ex. 265 and
the same was approved by the House of Lords.
5
Dr. R.K. Bangia, The Law of TORTS (Allahabad law Agency,Haryana, 24th ed. 2017).
6
(1947) A.C. 156; (1946) 2 ALL E.R. 471
7
Rickards v. Lothian, (1913) A.C. 263
8
(1947) 1 All E.R. 344
an ordinary, natural, proper, everyday use of the fire place in a room. If fire spreads to the adjoining
premises, the liability under this rule cannot arise.

EXCEPTIONS TO THE RULE

The following exceptions are reconised to the rule of Rylands v. Fletcher :
 Plaintiff’s own default;
 Act of god ( Vis Major);
 Consent of the plaintiff;
 Act of third party;
 Statutory authority.

Plaintiff’s own default

Damage caused by escape due to the plaintiff’s own default was considered to be a good defence in
Rylands v. Fletcher itself. If the plaintiff suffers damages only because of his doing he shall not be
entitled for any claim. In Ponting v. Noakes,9 the plaintiff’s horse intruded into defendant’s land and
died after having nibbled the leaves of poisonous tree there. The defendant was not held liable
because the damage would not have occurred but for the horse’s own intrusion to the defendants
land.

Act of God
Act of God is considered to be a good defense to an action under the rule in Rylands v. Fletcher.
BLACKBURN J. himself defined it as :
“circumstances which no human foresight can provide against, and of which human prudence is not
bound top recognized is not bound to recognized the possibility.”10

Nichols v. Marshland11 case establishes the fact that when the damage is caused to anyone due to
the act of natural forces then in this case principle of strict liability is not applicable, in this case the
defendant formed few artificial lakes by obstructing a natural stream for many years. The lake
however overflowed due to too much rainfall that particular year and as result of that artificial
barriers broke by stream. This caused severe damage to the four bridges of the plaintiff. The court in
this case did not hold the defendant liable as it was proved that the defendant did not show any
negligence and that was act of the God which was out of his control.

Consent of the plaintiff

9
(1849) 2 Q.B. 281
10
Tennet v. Earl of Glasgow, (1864) 2 M (H.L.) 22, 26-27
11
(1876) 2 Ex. D. 1
In the case of volenti non fit injuria, that is, where the plaintiff has consented to the accumulation of
the dangerous thing on the defendant’s land, the liability under the rule Rylands v. Fletcher does not
arise. Such a consent is implied where the source of danger is for ‘common benefit’ of both the
plaintiff and the defendant.
In Carstairs v. Taylor,12 the plaintiff hired ground floor of building from the defendant. The upper
floor of the building was occupied by the defendant himself. Water stored on the upper floor leaked
without any negligence on the part of the defendant and injured the plaintiff’ property on the ground
floor. As the water had been stored for the benefit of both the plaintiff and the defendant, defendant
was not held liable.

Act of third party

If the harm has been caused due to the act of a stranger, who is neither the defendant’s servant nor
the defendant has any control over him, the defendant will not be liable under this rule. When there
are any harmful consequences caused by third party or any unknown individual on which the
defendant had no control, then in this situation the defendant shall not be held liable.
In Rickards v. Lothian,13 case the waste pipeline of the wash basin in the defendant’s premises was
blocked by an unknown individual and the tap was left open. The overflowing water entered the
premises of plaintiff and spoiled his belongings. The court did not hold defendant liable for this act
as it had happened without his knowledge as it was doing of stranger.

Statutory Authority
An act done under the authority of a statute is a good defence to an action for tort. The defence is
also available when the action is under the rule in Rylands v. Fletcher, however it can not be pleaded
as a defence when there is negligence.
In Green v. Chelsea Waterworks Co.,14 the defendant company had a statutory duty to maintain
continuous supply of water. A main belonging to the company burst without any negligence on its
parts, as a consequence of which the plaintiff’s premises were flooded with water. It was held that
company was not liable as the company was engaged in performing a statutory duty.

THE RULE OF ABSOLUTE LIABILITY

12
(1871) L.R. 6 Ex. 217
13
(1913) A.C. 263
14
(1894) 70 L.T. 547
In M.C. Mehta v. Union of India15, the Supreme Court was dealing with the claims arising from the
leakage of the oleum gas on 4th and 6th December, 1985 from a unit of Shriram Foods and Fertilizers
Industries, in the city of Delhi. As a consequence of this leakage, it was alleged that one advocate
practising in the Tis Hazari Court had died and several other were affected by the same. The action
was brought through a writ petition under Article 32 of the Constitution by the way of PIL. If the rule
of Strict Liability laid down in Rylands v. Fletcher was applied to such like situations, then those
who had established ‘Hazardous and Inherently’ dangerous industries in and around thickly
populated areas could escape the liability for the havoc caused thereby by pleading some exceptions
to the rule of strict liability.

The Supreme court took a bold decision holding that it was not bound to follow the 19 th century rule
of English Law, it could evolve a rule suitable to the social and economic conditions prevailing in
India present day. Chief Justice P.N. Bhagwati played an iconic role in the development though
didn’t blindly follow the rulings under Rylands v. Fletcher, as he believed that the principal
established in the case were not aligned to the current form of jurisprudential thinking. According to
the Justice Bhagwati,
“in the 19th century the rule of strict liability further developed as this was the time when the nature
of industrial development was at its initial stage. He also belived that one needs to be alert in carry
out the development program in the modern industrial society. As the industries are an inherently
dangerous and hazardous in nature and so this rule is not applicable in current scenario. No one
should not feel conscious about this rule which was developed in the totally different in economic
and social structure”.16

Today our country is scaling up high and achieving the title of being a pioneer in industrial
development. Along with this the demography of the development is also reaching high standards
with each passing day, so are the complexity of the life and geography. And so it becomes even more
important to acquire inflexible and absolute principle of liability with respect to no- fault liability.
Rules and principles established in Rylands v. fletcher, need to be modified with today’s modern
times as these were established in the 19 th century which was the time when industrial revolution had
just started.17

 Going beyond the rule of strict liability the Apex Court ruled that this rule will not be subject to
any of the exceptions recognized under the rule in Rylands v. Fletcher, in the following words :

15
A.I.R. 1987 S.C. 1086.
16
S. P. Singh, Law of Tort (Universal Law Publishing Co. Ltd., Gurgaon, 7th edition , 2015).
17
Ratanlal and Dhirajlal ,The Law of Torts (Lexis Nexis India Pvt.Ltd., 27th edition, 2016).
 “ We would therefore hold that where an enterprise is engaged in a hazardous and
inherently dangerous activity and harm resulted to any one on account of an accident in
the operation of such hazardous or inherently activity resulting, for example, in the
escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-à-vis the tortious principle of strict liability under the rule
in Rylands v. Fletcher.”18

The court gave two reasons justifying the rule;

a) That the enterprise carrying on such hazardous and inherently dangerous activity for private
profit has a social obligation to compensate those suffering therefrom, and it should absorb
such loss as an item of overheads, and
b) The enterprise alone has the resources to discover and guarded against such hazards and
dangers.

Distinction between Strict and Absolute liability

The SC in M. C. Mehta v. Union of India, clearly differentiated between the Strict and the Absolute
liability by laying four basic pointers. First, Absolute liability would include those industries which
are subjected to highly hazardous and dangerous activities. This means that industries which don’t
come under this category shall be falling under strict liability rule. Second, the rule will apply only
on those who are affected lithely within and outside the premises and not just because a particular
thing escaped from someone’s land. Third, the rule of Absolute liability does not have an exception,
whereas some exceptions were provided in rule of Strict liability. Fourth, damages to be claimed
would all depend upon the financial capability and the magnitude of loss incurred by that particular
enterprise. SC propagated that in the case there is any dangerous and hazardous activity being carried
out within the enterprise, it, must be guarded with highest standards of safety. And if any harmful
outcome then in those cases enterprise should take responsibility of entire compensation for damage
caused.

NEED OF CHANGE

18
A.I.R 1987 S.C. 1086, at 1098-1099
  Traditional rules unfit in the present world : the rules evolved during the 19 th century were
formulated keeping in mind the social and economic conditions during that time. In order to
adopt these rules in today’s circumstances they need to be altered keeping in mind today’s
social and economic requirement.19

 Agricultural use of land : India is a country where agriculture is very important source of
livelihood, water storage in huge quantities for irrigation purposes is must here. The Division
Bench of Andhra Pradesh HC also in the case of K. Nagireddi v. Government of Andhra
Pradesh,20 emphasised the need to modify the old principle and expressed its view that “In
India the general rule of Rylands v. Fletcher is accepted, though the principle is needed to be
modified in its application to the Indian considerations.” Expalining the reason, it observed 21
that :
In fact in India, the question to be asked is “how could people live if there was no water” in
tanks and reservoirs. Enormous benefits follow from dams and irrigation is obvious and
without them, the land would be wilderness, the country would be desert.”

 Environment pollution : the Supreme Court in case, Indian council For Enviro-Legal Action
v. Union of India,22 followed its earlier decision in M.C. Mehta v. Union of India,
imposing absolute liability on enterprises carrying on hazardous and inherently dangerous
activity. All industries which were causing pollution, on account of their continuous,
persistence and insolent violation of law, being characterised as “rogue industries” by the SC,
this liability of rogue industries was based on the the principle of “Polluters Pay”.

THE BHOPAL GAS LEAK DISASTER CASE

19
Ratanlal & Dhirajlal, The law of Torts (Lexis Nexis India Pvt. Ltd., 27th edition, 2016).
20
A.I.R. 1982 A.P. 119.
21
Ibid ., at 122
22
A.I.R 1996 S.C. 1446.
In 1984, on the night of December, 2/3 mass disaster, the worst of all, was caused by the leakage of
Methyl Isocynate (MIC) and other toxic gases from the UCIL, at Bhopal. It is an subsidiary of Union
Carbide Corporation (UCC), an MNC registered in USA. About 2660 people died instantaneously
and lacs of people were seriously injured. However the toll of death had risen to 4000. Several suits
were filed against UCC in the US District Court of New York by legal representatives of deceased
and many of the affected persons for damages. Union of India under the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985 took upon itself the right under section 3 to sue for the
compensation on behalf of the affected parties and filed a suit for the same. All suits were
consolidated and dismissed by Judge Keenon on the ground of forum non conveniens. Then UOI
filed suit in District Court of Bhopal which awarded interim compensation for amount of rupees 350
crores. This amount, on appeal to MP High Court by UCC, was reduced to 250 crores. This order
was challenged in SC. UCC was trying for a direct settlement with the victims that move was
stopped by Judge M.W. Deo and tried to negotiate out of court settlement with UOI. Finally, the SC
in Union Carbide Corporation v. Union of India,23 on 14th feb, 1989 recorded settlement for
claims reached between the parties in the suit for 470 million dollars (750 crores) and as
consequence, all civil and criminal proceedings against UCC and UCIL and their officers were
terminated. On 15th Feb, 1989 terms of settlement signed by learned Attorney General for UOI and
the counsel for the UCC was filed.

PUBLIC LIABILITY INSURANCE ACT, 1991

Every owner, i.e., a person who has control over handling24 of any hazardous substance25, shall take
out, before he starts handling any hazardous substance, one or more insurance policies providing for
the contracts of insurance whereby he is insured against liability to give relief in case of death or
injury to a person, or damage to any property, arising from an accident occurring while handling any
hazardous substance. In respect of insurance policy have to be taken as soon as possible, bit within a
maximum period of one year from the commencement of the Act. Such liability shall be on the
principle of “no fault liability”.26

CONCLUSION

23
A.I.R 1990 S.C. 273.
24
The Public Liability Insurance Act, 1991 section 2(c)
25
Ibid. section 2(d)
26
Ibid. see sections 3 & 4
There are situations when a person may be liable for some harm even though he is not negligent in
causing the same, or there is no intention to cause harm, even have made positive efforts to avert the
same, law recognizes as ‘No fault liability’. The rules were laid down in two cases, firstly, in the
decision of House of Lords in Rylands v Fletcher, and secondly, in the decision of Hon’ble SC of
India in M. C. Mehta v Union of India, The rule laid down in Rylands v. Fletcher is generally
known as as the Rule of Strict Liability, because of the various exceptions are available to it.
While formulating the rule in M.C. Mehta v. Union of India, the SC itself termed the liability
recognized in this case as Absolute liability, and stated that such liability will not be subjected to
such exceptions as have been recognized under Rylands v. Fletcher
The Supreme court took a bold decision holding that it was not bound to follow the 19 th century rule
of English Law, it could evolve a rule suitable to the social and economic conditions prevailing in
India present day. Chief Justice P.N. Bhagwati played an iconic role in the development of this rule
by not following the rulings under Rylands v. Fletcher, as he believed that
Today our country is scaling up high and achieving the title of being a pioneer in industrial
development. And so it becomes even more important to acquire inflexible and absolute principle of
liability with respect to no- fault liability. Rules and principles established in Rylands v. fletcher,
need to be modified with today’s modern times as these were established in the 19 th century which
was the time when industrial revolution had just started. And SC clearly stated the distinction
between these two rules :
First, Absolute liability would include those industries which are subjected to highly hazardous and
dangerous activities. This means that industries which don’t come under this category shall be falling
under strict liability rule. Second, the rule will apply only on those who are affected lithely within
and outside the premises and not just because a particular thing escaped from someone’s land. Third,
the rule of Absolute liability does not have an exception, whereas some exceptions were provided in
rule of Strict liability. Fourth, damages to be claimed would all depend upon the financial capability
and the magnitude of loss incurred by that particular enterprise.

BIBLIOGRAPHY
Dr. R. K. Bangia, Law of Tort including The Motor Vehicle Act and Consumer Protection
Laws (Allahabad Law Agency, Haryana, 24th edition, 2017).
S. P. Singh, Law of Tort including Compensation under Consumer Protection Act (Universal
Law Publishing, Gurgaon, 7th edition, 2015).

Beula C. Darius and R. Dhivya, “A Comparative Study on Principles of Absolute And Strict
Liability”, 120 International Journal of pure and Applied Mathematics pp. 2323-2336
(2018).

Asang Wankhede, “Absolute Liability in India Necessity and Reforms”, available at,
http://www.kayadepundit.com/article/ABSOLUTE%20LIABILITY%20IN%20INDIA
%20NECESSITY%20AND%20REFORMS.pdf, (last visited on May 23, 2020).
Bharat Parmar & Aayush Goyal, “Absolute Liability : The Rule of Strict Liability in Indian
Perspective”, available at,
http://docs.manupatra.in/newsline/articles/Upload/2D83321D-590A-4646-83F6-
9D8E84F5AA3C.pdf, (last visited on May 23, 2020).
“The Rule of Absolute Liability”, available at,
https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/245746/8/08_chapter%201.pdf, (last
visited on May 23, 2020).