Module III

NO-FAULT LIABILITY
–IN TORT
 Module- III
Foundation of Tortuous Liability (Sessions- 10)

I. Strict Liability and Absolute Liability

II. Vicarious Liability – Scope and Justification
III. Liability of the State- [ Law Commission of India, Report -1955
on tortuous liability of the state in India]

Legal Text:
Constitution of India [Article 300]
Public Liability Insurance Act, 1991
National Environment Tribunal Act, 1995
Motor Vehicle Accident Act, 1988
Indian Partnership Act, 1932

Mr. VIVEK DUBEY, Asssistant Professor of

7/14/2011 2
Law of Torts
 INTRODUCTION
• With technological growth and development, the hazardous
activities undertaken by persons and enterprises which have
the potential to cause damage to others have increased.
• Many of the accidents cannot be averted beyond a certain
extent even after the best efforts of the firms or people. Such
times thus call for a law or rule which seeks to provide
compensation to victims of unhappy and unfortunate
accidents such as gas leaks, etc. and does not protect the
defendant by means of establishing the absence of negligence
on their part.
• Such liability exists in the form of the rule of Rylands v. Fletcher
and is further made more foolproof in the form of the rule in
M.C Mehta v. Union of India [ AIR (1987) SC].
• In some cases tort law imposes liability on defendants
who are neither negligent nor guilty of intentional
wrongdoing. Known as STRICT LIABILITY, or
liability without fault, this branch of torts seeks to
regulate those activities that are useful and necessary
but that create abnormally dangerous risks to society.

• These activities include blasting, transporting hazardous

materials, storing dangerous substances, and keeping
certain wild animals in captivity.
• A distinction is sometimes drawn between moral fault
and legal fault. Persons who negligently or intentionally
cause injury to others are often considered morally
blameworthy for having failed to live up to a minimal
threshold of human conduct. On the other hand, legal
fault is more of an artificial standard of conduct that is
created by government for the protection of society.
• Persons who engage in ultrahazardous activities may be
morally blameless because no amount of care or diligence
can make their activities safe for society. However, such
persons will nonetheless be held legally responsible for
harm that results from their activities as a means of
shifting the costs of injury from potential victims to
tortfeasors. As a matter of social policy, then, individuals
and entities that engage in abnormally dangerous
activities for profit must be willing to ensure the safety of
others as a price of doing business.
 Rylands vs Fletcher
In the Exchequer, ENG [1865]
• Relevant Facts:
• The df were owners of a mill. In order to supply it with water
they constructed a reservoir upon nearby land. The Pl was
working certain coal mines, under lands, close to but not
adjoining the premises on which the reservoir was
constructed.
• The Df employed an engineer and contractors or plan and
build the reservoir. The contractors, in excavating for the bed
of the reservoir, came upon five long ago abandoned vertical
shafts. B/c they were filled with soil neither the contractors
nor the Dfs suspected that they were abandoned mine
shafts. The reservoir was completed and partly filled. Within
days one of the shafts gave way and burst, letting water flow
into the pl’s workings, flooding their mine.
• Legal Issue(s): Whether the Pl is entitled to
recover damages from the Df by reason of strict
liability applied to an abnormally dangerous
activity?
• Law or Rule(s): A person, who lawfully brings
on his land something which though harmless, but
will do mischief if it escape, must keep it at his
peril, and if he does not, he is answerable for all
the damage.
 Court Rationale
• Df., though free from blame, must bear the loss, unless he can
establish that it was the consequence of some default for which the Pl.
were responsible.
• The df has an absolute duty to keep the reservoir at his peril. He can
excuse himself by showing that the escape was owing to the pl or the
act of God, or vis major (a greater or superior force). None of which
exists here.
• It is reasonable and just that the neighbor who has brought something
on his own property, knowing it to be mischievous if it escapes, should
be obliged to make good the damage which ensues.
• But for the df ’s act in constructing the reservoir no mischief could
have accrued, and he must answer for the natural and anticipated
consequences. This principle applies to beasts, or water, or filth, or
stenches.
• Blackburn J. held the mill owner to be liable, on the
principle that
• “We think that the rule of law is , that the
person who for his own purposes brings on his land 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”.
• He can excuse himself by showing that the escape was
owing to the plaintiff’s default ; or perhaps that the
consequence was of vis major, or the act of god; but
as nothing of this sort exists here, it is unnecessary to
inquire what excuse would be sufficient.”
 Essentials for applicability of rule of strict liability

• To succeed in this tort the claimant must show:

1. That the defendant brought some thing onto his land;

2. That the defendant made a "non-natural use" of his land

3. The thing was something likely to do mischief if it escaped;

4. The thing did escape and cause damage.

5. Forseeability [ Added later on ]

 DANGEROUS THING
• According to this rule, the liability for the escape of a
thing from one’s land provided the thing collected was a
dangerous thing, a thing which is likely to do mischief if
it escapes. The rule has been applied to water, gas,
electricity, vibrations, poisonous trees, explosives, noxious
fumes and rusty wire. The liability exists whether the land
is or is not owned by the defendant.
• In Rylands v Fletcher, the thing so collected was a large
body of water. The water collected in the reservoir was
of a huge quantity and was thus regarded to be of
potential danger.
 ESCAPE
• The thing causing the damage must escape to
the area outside the occupation and control of
the defendant.
• Cheater v Cater [projection of branches of
poisonous tree to neighbor's land is escape]
• Giles v Walker (1820) [Thistle seeds]
• Firth v Bowling Iron Co. (1878) [wire rope]
 Read v J. Lyons & Co Ltd
(1946) 2 All E.R. 471
• The claimant was employed by the Ministry of Supply
as an inspector of munitions in the defendants’
munitions factory and, in the course of her
employment there, was injured by the explosion of a
shell that was being manufactured.
• It was admitted that high explosive shells were
dangerous but the defendants were held not liable
because “escape” of the thing should be from a place
where the defendant had control and occupation of
land to a place which is outside his occupation and
control. Defendants were not liable because there was
no escape of the thing outside the defendants premises.
 NON-NATURAL USE
• Keeping water for ordinary domestic purposes is
‘natural-use’. For the use to be non-natural it must
be some special use bringing with it increased
danger to others, and must not by the ordinary use
of land or such a use as is proper for the general
benefit of community.
• Consideration of time, place, surroundings,
circumstances and purpose all enter in the
determination of the question whether a particular
use is a natural use or not.
 Noble v Harrison (1926)
• HELD- Trees on one’s land are not non-natural
use of land.
• There the branch of a non-poisonous tree growing
on the defendant’s land, which overhung on the
highway, suddenly broke and fell on the plaintiff ’s
vehicle passing along the highway. The branch had
broken off due to some latent defect.
• It was held that the defendant could not be held
liable under the rule in Rylands v Fletcher
 T.C. Balakrishnan Menon v T.R. Subramaniam
AIR 1968 Kerala, 151
• An explosive made out of a coconut shell filled with
explosive substance, instead of rising in the sky and
exploding there, ran at a tangent, fell amidst the crowd
and exploded, causing serious injuries to the respondent.
• One of the questions for consideration before the Kerala
High Court was whether the appellants, who had engaged
an independent contractor to attend to the exhibition of
fireworks, would be liable.
• It was held that the rule in Rylands v Fletcher would be
applicable because the explosive is an “extrahazardous”
object. The persons using such an object are liable even
for the negligence of their independent contractor.
 Rationale behind strict liability

• The common law developed a separate doctrine to help plaintiffs

to prove their cases for certain situations. The doctrine of strict
liability allocates the presumption of responsibility for certain types of
accidents to the defendant instead of the plaintiff.
• This alleviates the burden of proof that usually rests on the
plaintiff when trying a case. The courts regarded keeping wild
animals and blasting, for example, as inherently dangerous
activities.
• There arose a presumption that if a wild animal escaped, or a
blasting accident occurred, the owner of the animal or whoever
created the explosion was automatically liable for any injuries
which could ordinarily be linked to these events. This raised the
social cost to persons who engaged in dangerous activities
• The basis of the doctrine of strict liability is
two fold
• (i) The people who engage in particularly
hazardous activities should bear the burden of
the risk of damage that their activities generate
and
• (ii) it operates as a loss distribution mechanism,
the person who does such hazardous activity
(usually a corporation) being in the best
position to spread the loss via insurance and
higher prices for its products
 Defences to Strict Liability

• 1. Consent [vnfi]
• The express or implied consent of the claimant
to the presence of source of the danger,
provided there has been no negligence by the
defendant, will be a defence.
• Such consent is implied where it is for the
common benefit of Plt and def.
 2. Common Benefit
• If the source of the danger was maintained for the benefit of
both the claimant and defendant, the defendant will not be
liable for its escape. This defence is either related to the
defence of consent or the same thing. According to Winfield
& Jolowicz, p551, "common benefit seems redundant (and
indeed misleading) as an independent defence".
• Example- If the plaintiff hired the ground floor of a 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 ’s goods. As the water has
been stored for the common benefit of both the plaintiff and
the defendant, the defendant was held not liable.
• 3. Act of a stranger
• The defendant will not be liable if a stranger was
responsible for the escape.
• Richards v Lothian [1913] AC 263. The D was not
liable when an unknown person blocked a basin on
his property and caused a flood, which damaged a
flat below.

4. Statutory authority
• A statute may require a person or body to carry out
a particular activity. Liability under Rylands v
Fletcher may be excluded upon the interpretation
of the statute.
 Green v Chelsea Waterworks Co
(1894) 70 L.T.
• a main belonging to a water-works company,
which was authorized by Parliament to lay the
main, burst without any negligence on the
part of the company and the claimant’s
premises were flooded; the company was held
not liable.
5. Act of God
• An act of God is an event which 'no human foresight can provide
against, and of which human prudence is not bound to recognize the
possibility’.

6. Plaintiff ’s Own Default

• If the escape is the fault of the claimant there will be no
liability. Alternatively, there may be contributory negligence on
the part of the claimant.

Ponting v Noakes(1849) 2 Q.B. 281,

The claimant’s horse reached over the defendant’s boundary,
nibbled some poisonous tree there and died accordingly and it
was held that the claimant could recover nothing, for the
damage was due to the horse’s own intrusion and alternatively
there had been no escape of vegetation.
 Applicability of Rylands Rule in India
• M.V. Act 1988 recognizes liability of the owner or insurer of the
vehicle without proof of any negligence (no fault liability). Likely
in Carriers Act, 1865, Railway Act 1961, Public liability Insurance
Act 1991, National Environmental Tribunal Act, 1995. The
rylands rule is applicable in India with certain deviations.
• Union of India v. Prabhakaran Vijaya Kumar & Ors.
[05/05/2008]
• In India the landmark Constitution Bench decision of the
Supreme Court in M.C. Mehta vs. Union of India AIR 1987 SC
1086 has gone much further than Rylands vs. Fletcher in
imposing strict liability by saying that strict liability is not subject
to any of the exceptions to the rule in Rylands vs. Fletcher.
• The decision in M.C. Mehta’s case related to a concern
working for private profit.
• The Court said that, in its opinion, the same principle also
applies to statutory authorities (like the railways), public
corporations or local bodies which may be social utility undertakings
not working for private profit.
• Strict liability has no element of moral censure. It is
because such public bodies benefit the community that it
is unfair to leave the result of a non-negligent accident to
lie fortuitously on a particular individual rather than to
spread it among the community generally.
• 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 124A of the Railways Act 1989
incorporates the principle of strict liability
 M.P. Electricity Board v Smt. Shail Kumari
( AIR 2002 SC 551)
• The deceased was riding on his bicycle while returning
from his factory in night. A snapped live electric wire was
lying on the road. There was rain and the road was
partially filled with water. The cyclist could not notice the
live electric wire and as he came in contact with the same,
he died instantaneously due to electrocution.
• In this case, the apex court applied the rule of strict
liability. The defence of the dangerous being an act of the
stranger (an exception to the rule of strict liability) was
not allowed because the same could have been foreseen.
• "It is an admitted fact that the responsibility to supply
electric energy in the particular locality was statutorily
conferred on the Board..... It is no defence on the part of the
management of the Board that somebody committed
mischief by siphoning such energy of his private property
and that the electrocution was from such diverted line. It is to
look out the mangers of the supply system to prevent such
pilferage by installing necessary devices..... Authorities
manning such dangerous commodities have extra duty to
chalk out measures to prevent such mishaps.
• Even assuming that all such measures have 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 managers of such undertakings. 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, as
"strict liability."
 S K Shangring Lamkang v State of Manipur
AIR 2008 SC 46
• Held-
• An “act of god” as an exception to the rule of strict liability
is held not available in cases of death due to electrocution
as a result of falling of high tension electric wire from its
pole due to lightning stroke or storm.
• The possibility of falling of high tension electric line from
its pole as a result of storm or lightning should have been
reasonably anticipated by the Respondents and as such
appropriate steps should have been taken by them so that
no harm was caused when someone touched the fallen
electric line — Respondent shall be strictly and absolutely
liable to compensate to those who are harmed in the course
of operation of the electricity activity
 ABSOLUTE LIABILITY

 Strict liability without exceptions becomes

Absolute Liability. It is a liability independent of
wrongful intent or of negligence.
 Accepted in India its effect can be seen in
Payment of Compensation in case of hazardous
industries. The burden of proof rests solely on
the defendant.
 WHY WAS THERE A NEED OF
ABSOLUTE LIABILITY?
• Tort Law is dynamic in Nature. It had to change
with the Society.
• Industrialization and Economic development of the
Society.
• The meaning of “hazardous ” changing to a great
extent from the Case of Ryland to M.C.Mehta Case.
• Defense of Exceptions might lead to escaping
liability for dangerous activities.
• Adjustment of Conflicting Interest.
 Its evolution
• Although the terms strict and absolute liability are used synonymously
in England yet the history of cases in Animal trespass and the
judgment of Rylands v. Fletcher distinguished it.
• The principle of Absolute Liability was used in India in case of M.C.
Mehta. Initially in the history of England, Absolute Liability was very
much prevalent as could be seen in the case of trespass by cattle
termed as “negligent keeping” by Blackstone.
• But then at one time the common-law rules as to liability for damage
or injury by animals were felt to be historical anomalies destined to be
ironed out by gradual extension of the idea of fault to all torts.
• And then came up the landmark case of Rylands which gave some
exceptions making the Absolute liability no more absolute(they used
the term Strict) as in words of Sir Frederick Pollock “become slowly
but surely choked and crippled with exceptions.”
 M.C. Mehta v Union of India AIR 1987
SC 1086
• In case of M.C. Mehta v. Union of India, where the Supreme
Court was dealing with claims arising from the leakage of
Oleum gas on 4th and 6th December, 1985 from one of the
units of Shriram Foods and Fertilizers Industries, in the city
of Delhi, belonging to Delhi Cloth Mills Ltd. As the
consequence of this leakage, it was alleged that one advocate
practicing in the Tis Hazari Court had died and several others
were affected by the same.
• The action was brought through a writ petition under Art.32
of the Indian Constitution by way of public interest litigation
as the Court thought that these applications for compensation
raised certain important issues and those issues should be
addressed by a constitutional bench.
• In M.C. Mehta the issue of availability of Article 21
against a private corporation engaged in an activity
which has potential to affect the life and health of the
people was vehemently argued by counsel for the
applicants and Shriram.
• The Court traced the evolution of the Doctrine of State
Action to ascertain whether the defendants in this case
fall under the definition of the term state, as provided
under Article 12.
• The Court also looked into the Industrial Policy of the
Government and Industrial Policy Resolution 1956
where industries were classified into three categories
having regard to the part which the State would play in
each of them.
JUDGMENT BY JUSTICE BHAGWATI
• “We would therefore hold that where an enterprise
is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of
an accident in the operation of such hazardous or
inherently dangerous activity resulting,
• for example, in 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”
• The basis of the new rule as indicated by the
court are two:
• If an enterprise is permitted to carry on an
hazardous or inherently dangerous activity for
its profit, the law must presume that such
permission is conditional on the enterprise
absorbing the cost of any accident (including
indemnification of all those who suffer harm in
the accident) arising on account of such
hazardous or inherently dangerous activity as an
appropriate item of its over-heads.
• Since the persons harmed would not be in a
position to isolate the process of operation
from the hazardous preparation of substance
that caused the harm, the enterprise must be
held strictly liable for causing such harm as part
of the social cost for carrying on the hazardous
activities.
• Secondly, the enterprise alone has the resources
to discover and guard against hazards or
dangers and to provide warning against
potential hazards.
• The supreme court also laid down that the measure of
compensation should be co-related to the magnitude and
capacity of the enterprise, so that the compensation can
have the deterrent effect.
• The larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by
it (‘Deep Pocket’ Theory).
• In Indian Council for Enviro Legal Action v UOI ( AIR 1996
SC 1446), the Supreme court reiterated the rule laid down
in shriram case.
• In Klaus Mittelbachert v East India Hotels Ltd. (AIR 1997
Del. 201) due to hazardous nature of the premises, the
rule of absolute liability was applied and the defendants
were required to pay exemplary damages amounting to 50
lac rupees.
 COMPARING STRICT AND ABSOLUTE
LIABILITY
• Conceptual difference.
• Inarticulate premise of the Judges affected the
definition of two liabilities.
• Burden of Proof.
 MERITS- STRICT LIABILITY
1. It has a wider scope of application.

2. It has forseeability and it can incorporate

new areas of liability like its application in
Motor Vehicles Act 1939.
 DEMERITS
 If it is applied in all situations along with the
exceptions, it would limit the scope of legal standard
of due care and so subjecting another to an
unreasonable injury with a thing he enjoys himself.

 It is an impediment in a social service state of

today, there are certain relational liabilities established
by legislation (Workmen’s Compensation); and the
duties towards seamen, established in admiralty, have
been much extended. Because of the danger to life and
limb involved in industry etc. Liability of Reparation is
imposed upon the industry.
 ABSOLUTE LIABILITY

MERITS DEMERITS
1. It is stricter than strict 1. It leads to the gradual
liability and so industries extension of the idea
involved in hazardous of fault to all torts.
activities cannot take any
plea.
2. It has limited application.
2. It gives a background of Only limited to
support to certain relational hazardous activity.
liabilities like in Workmen’s
Compensation where
compensation is given even 3. It gives too much emphasis
without fault. on enterprise liability.