Strict and Absolute Liability:- A critique

TOPIC:- THE CONCEPT OF STRICT AND ABSOLUTE LIABILITY:-A CRITIQUE.

            THE CONCEPT OF STRICT LIABILITY

             RATIONALE OF STRICT LIABILITY

There are many activities which are so dangerous that they constitute constant danger to person and property to others. The law may deal with them in two ways. It may prohibit them altogether. It may allow them to be carried on for the sake of social utility but only in accordance with statutory provisions laying down safety measures and providing for sanctions for non-compliance[1] through the doctrine of strict liability. The undertakers of the activities have to compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is the foreseeable risk inherent in the very nature of the activities. In this aspect, the principle of strict liability resembles negligence which is also based on foreseeable harm. But the difference lies in that the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions and so if the defendant did all that which could be done for avoiding the harm, he cannot be held liable except possibly in those cases where he should have closed down the undertaking. Such a consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. The rationale behind strict liability is that the activities coming within its fold are those entailing extraordinary risk to others, either in the seriousness or the frequency of the harm threatened.[2]   

          ORIGIN OF THE STRICT LIABILITY RULE

The Strict Liability rule had its origins in nuisance but for most of the 20th century was probably regarded by the majority of lawyers as having developed into a distinct principle. Now it seems to have returned to what are regarded as its roots: it is a “sub species of nuisance”.[3] But on balance it still merits some separate treatment. Liability under the rule is strict in the sense that it relieves the claimant of the burden of showing fault; however , it is far from absolute since there are a number of wide ranging differences. In Rylands v Fletcher[4] in 1868, the House of  Lords laid down the rule recognizing ‘No fault’or ‘Strict Liability’, i.e., even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm he could still be held liable under the rule.

The facts of the case were as follows. The defendant was a mill owner, and he employed some independent contractors who were apparently competent, to construct a reservoir on his land to provide water for his mill. In the course of work the contractors came upon some old shafts and passages on the defendant’s land. They communicated with the mines of the plaintiff, a neighbour of the defendant, although no one suspected this, for the shafts appeared to be filled with earth. The contractors did not block them up, and when the reservoir was filled the water from it burst through the old shafts and flooded the plaintiff’s mines. It was found as a fact that the defendant had not been negligent, although the contractors had been. But the House of Lords held the defendant liable.

The basis of liability in the above case was the following rule propounded by Blackburn, J.[5]:

            “We think that the rule of law is , that the person who for his own purposes brings on his lands 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.”

The justification for the above -stated rule was explained in the following words:-

“ The general rule, as stated above, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth on his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s land should be obliged to make good the damage which ensures if he does not succeed in confining it to his own property. But for his act in bringing it there , no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrued, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.” 

To the above rule laid down by Blackburn, J., in the Court of Exchequer Chamber, another important qualification was made by the 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.

For the application of the rule therefore the following three essentials should be there:                                            

(1)   Some dangerous thing must have been brought by a person on his land.

(2)   The thing thus brought or kept by a person on his land must escape.[6]

(3)   It must be non-natural use of land.[7]

                                   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. 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

For the rule in Rylands v Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. The requirement of escape was firmly set in the law by the House of Lords’ decision in Read v J. Lyons  & Co Ltd.[8] 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.

                                        NON-NATURAL USE

Water collected in the reservoir in such a huge quantity in Rylands v Fletcher was held to be non-natural use of land. Keeping water for ordinary domestic purposes is ‘natural-use’.[9] 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.[10] In Noble v Harrison,[11] it has been held that 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. It has been held in Sochaki v Sas,[12]  that the fire in a house in a grate is an ordinary, natural, proper, everyday use of the fire place in a room. If this fire spreads to the adjoining premises, the liability under the rule in Rylands v Fletcher cannot arise.  

Generally an employer is not liable for the wrongful act done by an independent contractor. However, it is no defence to the application of this rule that the act causing damages had been done by an independent contractor. In Rylands v Fletcher itself, the defendants were held liable even though they had got the job done from the independent contractors.

Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam,[13] 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.      

                        EXCEPTIONS TO THE RULE

The following exceptions to the rule have been recognized by Rylands v Fletcher and some later cases:-

(i)                             Default of the claimant

(ii)                           Act of God

(iii)                         Statutory Authority

(iv)                         Consent of the claimant

(v)                           Act of third party.

               DEFAULT OF THE CLAIMANT

If the damage is caused solely by the act or default of the claimant himself, he has no remedy. In Rylands v Fletcher itself, this was noticed as a defence. If a person knows that there is a danger of his mine being flooded by his neighbour’s operations on adjacent land , and courts the danger by doing some act which renders the flooding probable he cannot complain.[14] So too in Ponting v Noakes[15], 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.

                                                  ACT OF GOD

Where the escape is caused directly by natural causes without human intervention in “circumstances which no human foresight can provide and of which human prudence is  not bound to recognize the possibility”, the defence of Act of God applies.This was recognized by Blackburn J. in Rylands v Fletcher itself and was applied in Nichols v Marsland.[16] In this case the defendant for many years had been in possession of some artificial ornamental lakes formed up by damming up a natural stream. An extraordinary rainfall, “greater and more violent than any within the memory of the witnesses” broke down the artificial embankments and the rush of escaping water carried away four bridges in respect of which damage the claimant sued. Judgment was given for the defendant; the jury had found that she was not negligent and the court held that she ought not to be liable for an extraordinary act of nature which she could not foresee or reasonably anticipate.

                                              STATUTORY AUTHORITY

The rule in Rylands v Fletcher may be excluded by statute. Whether it is so or not is a question of construction of the particular statute concerned. In Green v Chelsea Waterworks Co,[17] for instance 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. On the other hand, in Charing Cross Electricity Co v Hydraulic Power Co[18] where the facts were similar, the defendants were held to be liable and had no exemption to the interpretation of their statute. The distinction between the cases is that the Hydraulic Power were empowered by statute to supply water for industrial purposes, that is they had permissive power but not a mandatory authority, and they were under no obligation to keep their mains charged with water at high pressure, or at all. The Chelsea Waterworks Co were authorized by statute to lay mains and were under a statutory duty to maintain a continuous supply of water ; it was an inevitable consequence that damage would be caused by occasional bursts and so by necessary implication the statute exempted them from liability where there was no negligence.

                  CONSENT OF THE CLAIMANT

Where the claimant has expressly or impliedly consented to the presence of the source of danger and there has been no negligence on the part of the defendant, the defendant is not liable.[19]The exception merely illustrates the general defence, volenti non fit injuria. The main application of the principle of implied consent is occupied by different persons and the tenant of a lower suffers damage as a result of water escaping from an upper floor, though it has to be said that the cases which have discussed this defence have tended to involve perfectly ordinary domestic fittings which would to modern eyes be a natural use of land.[20]      

                       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. Thus in Box v Jubb[21] the overflow from the defendant’s reservoir was caused by the blocking of a drain by strangers, the defendant was held not liable for that. Similarly, in Richards v Lothian[22] some strangers blocked the waste pipes of a wash basin, which was otherwise in the control of the defendants, and opened the tap. The overflowing water damaged the plaintiff’s goods. The defendants were held not liable.

                             RULE OF ABSOLUTE LIABILITY      

A very basic question that arises is what is this Absolute Liability?  How is it different from Strict Liability? There is a very simple answer to it; it is the application of Strict Liability but without the exceptions. But what was the need of this new doctrine when already we have many doctrines on liability and not just that we also have the mother law to all these principles that is Nuisance?

The answer to this question is another question, what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or is injured?  Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? Or will the application of the Principle of Strict liability in Ryland v. Fletcher lead us to a justified conclusion in matters of mass injury caused by such Industries?

 The rule in Rylands v. Fletcher evolved in the 19th Century at a time when all these developments of science and technology had not taken place. So therefore, it cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. 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 the country and never the less the Law of Tort is dynamic in nature. We cannot allow our judicial thinking to be constricted by reference to the law, as it prevailed or prevails in England, about few hundred years back. The fact remains that the meaning of Hazardous; has also changed and a variety of  substances have  evolved which one could not think of then; due to the modernization of the world, science, technology, people, industrial practices and in totality, law itself except the rule of doing justice. One can check the merit of the argument, by comparing the substance for which the word “Hazardous” can be used, as it caused damage to an innocent third party both in Rylands v. Fletcher and M.C. Mehta and others v. Union of India and Others[23]. Then how can we still follow an archaic rule?

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.

The court had in mind that it was within a period of one year that a second case of large scale leakage of noxious gas in India took place, as just a year back the Bhopal Gas Tragedy had taken place where more than 3000 persons had met tragic and untimely death and lacs of others were subjected to diseases of serious kind.

No doubt it is a matter of concern, that where on one hand; there is a public limited company by shares, earning profits, which is engaged in an industry vital to its share holder’s interest and on the other hand it is also a company with potential to affect the life and health of the people. Here comes the conflict of interest of the shareholders or the people benefitting under it and the public that is affected by its gas but actually getting no benefit. 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.

If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find that the activity of producing chemicals and fertilizers is deemed by the State to be an industry of vital public interest, whose public import necessitates made the activity to be ultimately carried out by the State itself, in the interim period with State support and under State control, private corporations may also be permitted to supplement the State effort. The argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the State, even private corporations manufacturing chemicals and fertilizers can be said to be engaged in activities which are so fundamental to the Society as to be necessarily considered government functions. Now the question arises which necessity should be given more importance. Undoubtedly the right to life prevailed and the Supreme court thus evolved a new principle of Absolute Liability.

“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.”[24]

The rule was absolute and non-delegable duty towards the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. It should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part resulting into no fault liability.

  IS THE CONCEPT OF ABSOLUTE LIABILITY NEW?     

In England if one kept a wild animal, one of a kind naturally dangerous, or a domestic animal which he knows or has reason to know has vicious propensities, he is liable for injuries done by the animal because of those propensities. Blackstone sought to rest the liability for trespass by the cattle on “negligent keeping.”[25] But the negligence was proved by the escape and was a fiction to save the face of the will theory.[26]The owner of a trespassing cow was liable even if it was let out of the pasture by a trespassing third person[27] giving rise to no fault liability or rather absolute liability with no exceptions applicable. This shows that the practice of Absolute liability was very much there but there was no distinction drawn between Absolute liability and Strict Liability as was drawn in India, that might be the reason, as to why, Blackburn, J. kept on giving these examples of Absolute liability but ended up giving those exceptions making it no more Absolute liability but, in the words of Sir Frederick Pollock “choked and crippled by exceptions”.

So therefore it is not a new concept only that it was not defined separately.

                  STRICT AND ABSOLUTE LIABILITY

                    MERITS AND DEMERITS

 . It has a wider scope of application. It has foreseeability and it can incorporate new areas of liability like its application in Motor Vehicles Act 1939. In Minu Mehta v Balakrishna,[28]the supreme court held that the liability of the owner or the insurer of the vehicle could not arise unless there was negligence on the part of the owner or the driver of the vehicle. According to section 140 of the Act in case of death of the victim, a fixed sum of Rs 50000, and in case of his permanent disability a fixed sum of Rs 22,000 can be claimed as compensation without pleading or establishing any fault on the part of the owner or the driver of the vehicle.[29] The claim for compensation for the above mentioned fixed sum shall not be defeated by reason of any neglect, wrongful act or default of the accident victim. It implies that the defence of contributory negligence cannot be pleaded in case of an action for no fault liability, as mentioned above.

Recognition of “liability without fault” would be a welcome measure in case of motor vehicle accidents. It will be in consonance with the present day needs, when the emphasis is on finding the ways and means of finding the tort victim, that “no fault liability” to compensate the victim to the full extent of the loss suffered by him is recognized in case of motor vehicle accidents.            

Absolute Liability has its own limitations never the less the judges propounding the principle found some merit in its application and justified it. Some of its merits are:

 It is stricter than strict liability and so industries involved in hazardous activities cannot take any plea for the accidents that caused damage to the people. It gives a background of support to certain relational liabilities like in Workmen’s Compensation where compensation is given even without fault. It abridged the lacuna or the failure of maintenance of a legal standard of due care with a strict statute under the circumstances of few cases like Union Carbide Corporation v. Union of India[30], M.C.Mehta v. Union of India[31] etc. which were, while carrying on some course of conduct, subjected  another to an unreasonable risk whereby injury is done to his person or substance. It had served the purpose of the judges which Strict Liability failed to meet, fitting to the societal needs of then.

All the merits of both Strict and Absolute liability can be very well converted to their demerits in no time. Absolute Liability leads to the gradual extension of the idea of fault to all torts. It has limited application due to its absolute nature, only limited to Hazardous Industries, and never the less, suppose its application in cases like Professional Liabilities of Doctors & Lawyers disregarding even the generally accepted parameter of minimum degree of competence and reasonable care in the discharge of their duties’ and  application of the strict principle of Absolute liability  with no flexibility  to the extent that it does not even recognize  the Act of God as a defense, it would prove to be disastrous and hinder the free practice of the professionals as they will try to safeguard themselves from any kind of risks. Not just in case of professional liabilities but Absolute Liability would also be a failure in case it is applied in a country that is developing in terms of Technology and Science. That might me the reason as to why Absolute Liability ( the way applied in India) is not applied and not accepted in US in case of product Liability. They rather follow the principle of Strict Liability in almost every jurisdiction in US. There the burden of proof lies on the plaintiff who must prove that the defect in a product was the actual and proximate cause of damage, which is not the case in Absolute Liability.[32] It gives too much emphasis on enterprise liability which is yet another demerit as it promotes the idea of full blow theory of Enterprise liability (without any fault) amounting to the reduction of incentives from the victim to take care to avoid accidents or rather make him more careless because if you see to the conditions applied in M.C.Mehta of must rule of Indemnifying regardless of being careful and Deeper Pocket principle, it leaves the victim with no sense  of responsibility for his own act as he knows his faults would be compensated by someone else.

                                                 CRITIQUE

   A CRITIQUE:- STRICT AND ABSOLUTE LIABILITY

The question of critic depends on a practical as well as theoretical question of interest and importance, whether we are to generalize our whole system of tort liability by means of one principle of liability for fault and for fault only? If we are to generalize on this basis then we would definitely have to compare the justification of  Fault and No Fault Liabilities and then come up with a calculated liability which would cater to all our needs but for the time being we feel that all the application of  liabilities be it a fault liability or a no fault liability had satisfied the criteria of providing justice at particular instances and given situation but may be generalizing one principle and recognizing it as the only application in all circumstances would prove to be disastrous. So therefore, negating  any principle completely, until and unless it goes completely  against the purpose of, according to us would not be right, as the society is dynamic and so should be the Tort law as well. They might not be complete individually but to an applied situation they might cater to our needs so therefore it is difficult to come up with one and only one solution to the problem of liability.

When writing a critique on strict liability in law of torts we have to consider the present social and economic scenario and that at the time when this rule was laid down. The rule in Rylands v Fletcher has comparatively rarely been the basis of a successful claim in the English courts since 1900 and it has been said that it “has hardly been taken seriously by the English courts”[33] and that “it is hard to escape the conclusion that the intellectual effort devoted to the rule by the judges and writers over many years has brought forth a mouse.”[34]This has largely been because of the defences of acts of a third party and statutory authority and above all the very restrictive attitude taken by many twentieth century cases to the concept of non-natural use. The tendency was to say that common large scale activities, especially services such as the supply of gas or water, do not constitute a non-natural use of land even though their potential for causing damage is very great. Moreover in determining whether there is a non-natural use, the courts had regard to the benefit accruing to the public from the activity and this was an important element in the rejection of the rule in some of the leading cases.[35]

In respect of storage of large quantity of water for agricultural purposes, the courts in India have recognized an exception to the rule of strict liability. The reason for the exception is that storing of such water may be necessary according to the peculiar Indian conditions. And again the concept of non-natural use of land may vary from place to place.

In Madras Railway Co. v Zamindar,[36] it has been held by the Privy Council that because of peculiar Indian conditions, the escape of water collected for agricultural purposes may not be subject to strict liability. The owner on whose land such water is collected is liable only if he has not taken due care. In this case, there was escape of water as a consequence of bursting two ancient tanks situated on the respondent’s zamindari. These tanks which had been in existence since ages, existed not merely for the defendant alone, but for the benefit of thousands of his ryots. The escaping water caused damage to the appellant’s property and three railway bridges were destroyed .

It was held that under these circumstances the strict liability rule would not apply as the Zamindar was not negligent, he was not liable for the damage caused by the overflowing water. The following observation of the Privy Council may be noted:-

“ The existence of these tanks is absolutely necessary, not only for the beneficial enjoyment of the defendant’s estate , but for the sustenance of thousands of his ryots.

Looking, then, at the enormous benefit conferred on the public by these tanks ; considering that in this district at least, their existence is an absolute and positive necessity, for without them the land would be wilderness, and the country a desert. Considering these things, I think that it would be inequitable to impose upon the owners of the land, on which these tanks are situated, a greater obligation than to use all ordinary precautions to prevent the water from escaping and doing injury to their neighbours.”[37]              

Strict and Absolute liability appears to be on the two extreme points of No Fault Liability. Application of Strict liability with its exceptions where on one hand, would have let the case like Bhopal Gas Leak Disaster[38], Indian Council For Enviro-Legal Action v. U.O.I.[39]go escort free, with no damages being paid to the victims who got no benefit from the companies but it very much endangered their lives, on the other hand we have Absolute liability which is on the other extreme,  not even recognizing Act Of God as a ground for relief. At one point of time the common law rules as to Absolute liability for damages 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.[40]Think for a situation where the principle and remedy of Absolute Liability being applied for a case where due the trespassing cow you are held liable even if it was let out of the pasture by a trespassing third person.

Some where a line has to be drawn between Absolute liability and strict liability as both has their limitations but never the less they have some merits as well, atleast when they are applied in case laws, but for the time being, none of the principles are perfect or rather ready for application and will always hold some criticism.

TOPIC:- THE CONCEPT OF STRICT AND ABSOLUTE LIABILITY:-A CRITIQUE.

            THE CONCEPT OF STRICT LIABILITY

             RATIONALE OF STRICT LIABILITY

There are many activities which are so dangerous that they constitute constant danger to person and property to others. The law may deal with them in two ways. It may prohibit them altogether. It may allow them to be carried on for the sake of social utility but only in accordance with statutory provisions laying down safety measures and providing for sanctions for non-compliance[1] through the doctrine of strict liability. The undertakers of the activities have to compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is the foreseeable risk inherent in the very nature of the activities. In this aspect, the principle of strict liability resembles negligence which is also based on foreseeable harm. But the difference lies in that the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions and so if the defendant did all that which could be done for avoiding the harm, he cannot be held liable except possibly in those cases where he should have closed down the undertaking. Such a consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. The rationale behind strict liability is that the activities coming within its fold are those entailing extraordinary risk to others, either in the seriousness or the frequency of the harm threatened.[2]   

          ORIGIN OF THE STRICT LIABILITY RULE

The Strict Liability rule had its origins in nuisance but for most of the 20th century was probably regarded by the majority of lawyers as having developed into a distinct principle. Now it seems to have returned to what are regarded as its roots: it is a “sub species of nuisance”.[3] But on balance it still merits some separate treatment. Liability under the rule is strict in the sense that it relieves the claimant of the burden of showing fault; however , it is far from absolute since there are a number of wide ranging differences. In Rylands v Fletcher[4] in 1868, the House of  Lords laid down the rule recognizing ‘No fault’or ‘Strict Liability’, i.e., even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm he could still be held liable under the rule.

The facts of the case were as follows. The defendant was a mill owner, and he employed some independent contractors who were apparently competent, to construct a reservoir on his land to provide water for his mill. In the course of work the contractors came upon some old shafts and passages on the defendant’s land. They communicated with the mines of the plaintiff, a neighbour of the defendant, although no one suspected this, for the shafts appeared to be filled with earth. The contractors did not block them up, and when the reservoir was filled the water from it burst through the old shafts and flooded the plaintiff’s mines. It was found as a fact that the defendant had not been negligent, although the contractors had been. But the House of Lords held the defendant liable.

The basis of liability in the above case was the following rule propounded by Blackburn, J.[5]:

            “We think that the rule of law is , that the person who for his own purposes brings on his lands 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.”

The justification for the above -stated rule was explained in the following words:-

“ The general rule, as stated above, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth on his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s land should be obliged to make good the damage which ensures if he does not succeed in confining it to his own property. But for his act in bringing it there , no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrued, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.” 

To the above rule laid down by Blackburn, J., in the Court of Exchequer Chamber, another important qualification was made by the 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.

For the application of the rule therefore the following three essentials should be there:                                            

(1)   Some dangerous thing must have been brought by a person on his land.

(2)   The thing thus brought or kept by a person on his land must escape.[6]

(3)   It must be non-natural use of land.[7]

                                   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. 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

For the rule in Rylands v Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. The requirement of escape was firmly set in the law by the House of Lords’ decision in Read v J. Lyons  & Co Ltd.[8] 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.

                                        NON-NATURAL USE

Water collected in the reservoir in such a huge quantity in Rylands v Fletcher was held to be non-natural use of land. Keeping water for ordinary domestic purposes is ‘natural-use’.[9] 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.[10] In Noble v Harrison,[11] it has been held that 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. It has been held in Sochaki v Sas,[12]  that the fire in a house in a grate is an ordinary, natural, proper, everyday use of the fire place in a room. If this fire spreads to the adjoining premises, the liability under the rule in Rylands v Fletcher cannot arise.  

Generally an employer is not liable for the wrongful act done by an independent contractor. However, it is no defence to the application of this rule that the act causing damages had been done by an independent contractor. In Rylands v Fletcher itself, the defendants were held liable even though they had got the job done from the independent contractors.

Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam,[13] 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.      

                        EXCEPTIONS TO THE RULE

The following exceptions to the rule have been recognized by Rylands v Fletcher and some later cases:-

(i)                             Default of the claimant

(ii)                           Act of God

(iii)                         Statutory Authority

(iv)                         Consent of the claimant

(v)                           Act of third party.

               DEFAULT OF THE CLAIMANT

If the damage is caused solely by the act or default of the claimant himself, he has no remedy. In Rylands v Fletcher itself, this was noticed as a defence. If a person knows that there is a danger of his mine being flooded by his neighbour’s operations on adjacent land , and courts the danger by doing some act which renders the flooding probable he cannot complain.[14] So too in Ponting v Noakes[15], 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.

                                                  ACT OF GOD

Where the escape is caused directly by natural causes without human intervention in “circumstances which no human foresight can provide and of which human prudence is  not bound to recognize the possibility”, the defence of Act of God applies.This was recognized by Blackburn J. in Rylands v Fletcher itself and was applied in Nichols v Marsland.[16] In this case the defendant for many years had been in possession of some artificial ornamental lakes formed up by damming up a natural stream. An extraordinary rainfall, “greater and more violent than any within the memory of the witnesses” broke down the artificial embankments and the rush of escaping water carried away four bridges in respect of which damage the claimant sued. Judgment was given for the defendant; the jury had found that she was not negligent and the court held that she ought not to be liable for an extraordinary act of nature which she could not foresee or reasonably anticipate.

                                              STATUTORY AUTHORITY

The rule in Rylands v Fletcher may be excluded by statute. Whether it is so or not is a question of construction of the particular statute concerned. In Green v Chelsea Waterworks Co,[17] for instance 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. On the other hand, in Charing Cross Electricity Co v Hydraulic Power Co[18] where the facts were similar, the defendants were held to be liable and had no exemption to the interpretation of their statute. The distinction between the cases is that the Hydraulic Power were empowered by statute to supply water for industrial purposes, that is they had permissive power but not a mandatory authority, and they were under no obligation to keep their mains charged with water at high pressure, or at all. The Chelsea Waterworks Co were authorized by statute to lay mains and were under a statutory duty to maintain a continuous supply of water ; it was an inevitable consequence that damage would be caused by occasional bursts and so by necessary implication the statute exempted them from liability where there was no negligence.

                  CONSENT OF THE CLAIMANT

Where the claimant has expressly or impliedly consented to the presence of the source of danger and there has been no negligence on the part of the defendant, the defendant is not liable.[19]The exception merely illustrates the general defence, volenti non fit injuria. The main application of the principle of implied consent is occupied by different persons and the tenant of a lower suffers damage as a result of water escaping from an upper floor, though it has to be said that the cases which have discussed this defence have tended to involve perfectly ordinary domestic fittings which would to modern eyes be a natural use of land.[20]      

                       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. Thus in Box v Jubb[21] the overflow from the defendant’s reservoir was caused by the blocking of a drain by strangers, the defendant was held not liable for that. Similarly, in Richards v Lothian[22] some strangers blocked the waste pipes of a wash basin, which was otherwise in the control of the defendants, and opened the tap. The overflowing water damaged the plaintiff’s goods. The defendants were held not liable.

                             RULE OF ABSOLUTE LIABILITY      

A very basic question that arises is what is this Absolute Liability?  How is it different from Strict Liability? There is a very simple answer to it; it is the application of Strict Liability but without the exceptions. But what was the need of this new doctrine when already we have many doctrines on liability and not just that we also have the mother law to all these principles that is Nuisance?

The answer to this question is another question, what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or is injured?  Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? Or will the application of the Principle of Strict liability in Ryland v. Fletcher lead us to a justified conclusion in matters of mass injury caused by such Industries?

 The rule in Rylands v. Fletcher evolved in the 19th Century at a time when all these developments of science and technology had not taken place. So therefore, it cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. 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 the country and never the less the Law of Tort is dynamic in nature. We cannot allow our judicial thinking to be constricted by reference to the law, as it prevailed or prevails in England, about few hundred years back. The fact remains that the meaning of Hazardous; has also changed and a variety of  substances have  evolved which one could not think of then; due to the modernization of the world, science, technology, people, industrial practices and in totality, law itself except the rule of doing justice. One can check the merit of the argument, by comparing the substance for which the word “Hazardous” can be used, as it caused damage to an innocent third party both in Rylands v. Fletcher and M.C. Mehta and others v. Union of India and Others[23]. Then how can we still follow an archaic rule?

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.

The court had in mind that it was within a period of one year that a second case of large scale leakage of noxious gas in India took place, as just a year back the Bhopal Gas Tragedy had taken place where more than 3000 persons had met tragic and untimely death and lacs of others were subjected to diseases of serious kind.

No doubt it is a matter of concern, that where on one hand; there is a public limited company by shares, earning profits, which is engaged in an industry vital to its share holder’s interest and on the other hand it is also a company with potential to affect the life and health of the people. Here comes the conflict of interest of the shareholders or the people benefitting under it and the public that is affected by its gas but actually getting no benefit. 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.

If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find that the activity of producing chemicals and fertilizers is deemed by the State to be an industry of vital public interest, whose public import necessitates made the activity to be ultimately carried out by the State itself, in the interim period with State support and under State control, private corporations may also be permitted to supplement the State effort. The argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the State, even private corporations manufacturing chemicals and fertilizers can be said to be engaged in activities which are so fundamental to the Society as to be necessarily considered government functions. Now the question arises which necessity should be given more importance. Undoubtedly the right to life prevailed and the Supreme court thus evolved a new principle of Absolute Liability.

“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.”[24]

The rule was absolute and non-delegable duty towards the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. It should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part resulting into no fault liability.

  IS THE CONCEPT OF ABSOLUTE LIABILITY NEW?     

In England if one kept a wild animal, one of a kind naturally dangerous, or a domestic animal which he knows or has reason to know has vicious propensities, he is liable for injuries done by the animal because of those propensities. Blackstone sought to rest the liability for trespass by the cattle on “negligent keeping.”[25] But the negligence was proved by the escape and was a fiction to save the face of the will theory.[26]The owner of a trespassing cow was liable even if it was let out of the pasture by a trespassing third person[27] giving rise to no fault liability or rather absolute liability with no exceptions applicable. This shows that the practice of Absolute liability was very much there but there was no distinction drawn between Absolute liability and Strict Liability as was drawn in India, that might be the reason, as to why, Blackburn, J. kept on giving these examples of Absolute liability but ended up giving those exceptions making it no more Absolute liability but, in the words of Sir Frederick Pollock “choked and crippled by exceptions”.

So therefore it is not a new concept only that it was not defined separately.

                  STRICT AND ABSOLUTE LIABILITY

                    MERITS AND DEMERITS

 . It has a wider scope of application. It has foreseeability and it can incorporate new areas of liability like its application in Motor Vehicles Act 1939. In Minu Mehta v Balakrishna,[28]the supreme court held that the liability of the owner or the insurer of the vehicle could not arise unless there was negligence on the part of the owner or the driver of the vehicle. According to section 140 of the Act in case of death of the victim, a fixed sum of Rs 50000, and in case of his permanent disability a fixed sum of Rs 22,000 can be claimed as compensation without pleading or establishing any fault on the part of the owner or the driver of the vehicle.[29] The claim for compensation for the above mentioned fixed sum shall not be defeated by reason of any neglect, wrongful act or default of the accident victim. It implies that the defence of contributory negligence cannot be pleaded in case of an action for no fault liability, as mentioned above.

Recognition of “liability without fault” would be a welcome measure in case of motor vehicle accidents. It will be in consonance with the present day needs, when the emphasis is on finding the ways and means of finding the tort victim, that “no fault liability” to compensate the victim to the full extent of the loss suffered by him is recognized in case of motor vehicle accidents.            

Absolute Liability has its own limitations never the less the judges propounding the principle found some merit in its application and justified it. Some of its merits are:

 It is stricter than strict liability and so industries involved in hazardous activities cannot take any plea for the accidents that caused damage to the people. It gives a background of support to certain relational liabilities like in Workmen’s Compensation where compensation is given even without fault. It abridged the lacuna or the failure of maintenance of a legal standard of due care with a strict statute under the circumstances of few cases like Union Carbide Corporation v. Union of India[30], M.C.Mehta v. Union of India[31] etc. which were, while carrying on some course of conduct, subjected  another to an unreasonable risk whereby injury is done to his person or substance. It had served the purpose of the judges which Strict Liability failed to meet, fitting to the societal needs of then.

All the merits of both Strict and Absolute liability can be very well converted to their demerits in no time. Absolute Liability leads to the gradual extension of the idea of fault to all torts. It has limited application due to its absolute nature, only limited to Hazardous Industries, and never the less, suppose its application in cases like Professional Liabilities of Doctors & Lawyers disregarding even the generally accepted parameter of minimum degree of competence and reasonable care in the discharge of their duties’ and  application of the strict principle of Absolute liability  with no flexibility  to the extent that it does not even recognize  the Act of God as a defense, it would prove to be disastrous and hinder the free practice of the professionals as they will try to safeguard themselves from any kind of risks. Not just in case of professional liabilities but Absolute Liability would also be a failure in case it is applied in a country that is developing in terms of Technology and Science. That might me the reason as to why Absolute Liability ( the way applied in India) is not applied and not accepted in US in case of product Liability. They rather follow the principle of Strict Liability in almost every jurisdiction in US. There the burden of proof lies on the plaintiff who must prove that the defect in a product was the actual and proximate cause of damage, which is not the case in Absolute Liability.[32] It gives too much emphasis on enterprise liability which is yet another demerit as it promotes the idea of full blow theory of Enterprise liability (without any fault) amounting to the reduction of incentives from the victim to take care to avoid accidents or rather make him more careless because if you see to the conditions applied in M.C.Mehta of must rule of Indemnifying regardless of being careful and Deeper Pocket principle, it leaves the victim with no sense  of responsibility for his own act as he knows his faults would be compensated by someone else.

                                                 CRITIQUE

   A CRITIQUE:- STRICT AND ABSOLUTE LIABILITY

The question of critic depends on a practical as well as theoretical question of interest and importance, whether we are to generalize our whole system of tort liability by means of one principle of liability for fault and for fault only? If we are to generalize on this basis then we would definitely have to compare the justification of  Fault and No Fault Liabilities and then come up with a calculated liability which would cater to all our needs but for the time being we feel that all the application of  liabilities be it a fault liability or a no fault liability had satisfied the criteria of providing justice at particular instances and given situation but may be generalizing one principle and recognizing it as the only application in all circumstances would prove to be disastrous. So therefore, negating  any principle completely, until and unless it goes completely  against the purpose of, according to us would not be right, as the society is dynamic and so should be the Tort law as well. They might not be complete individually but to an applied situation they might cater to our needs so therefore it is difficult to come up with one and only one solution to the problem of liability.

When writing a critique on strict liability in law of torts we have to consider the present social and economic scenario and that at the time when this rule was laid down. The rule in Rylands v Fletcher has comparatively rarely been the basis of a successful claim in the English courts since 1900 and it has been said that it “has hardly been taken seriously by the English courts”[33] and that “it is hard to escape the conclusion that the intellectual effort devoted to the rule by the judges and writers over many years has brought forth a mouse.”[34]This has largely been because of the defences of acts of a third party and statutory authority and above all the very restrictive attitude taken by many twentieth century cases to the concept of non-natural use. The tendency was to say that common large scale activities, especially services such as the supply of gas or water, do not constitute a non-natural use of land even though their potential for causing damage is very great. Moreover in determining whether there is a non-natural use, the courts had regard to the benefit accruing to the public from the activity and this was an important element in the rejection of the rule in some of the leading cases.[35]

In respect of storage of large quantity of water for agricultural purposes, the courts in India have recognized an exception to the rule of strict liability. The reason for the exception is that storing of such water may be necessary according to the peculiar Indian conditions. And again the concept of non-natural use of land may vary from place to place.

In Madras Railway Co. v Zamindar,[36] it has been held by the Privy Council that because of peculiar Indian conditions, the escape of water collected for agricultural purposes may not be subject to strict liability. The owner on whose land such water is collected is liable only if he has not taken due care. In this case, there was escape of water as a consequence of bursting two ancient tanks situated on the respondent’s zamindari. These tanks which had been in existence since ages, existed not merely for the defendant alone, but for the benefit of thousands of his ryots. The escaping water caused damage to the appellant’s property and three railway bridges were destroyed .

It was held that under these circumstances the strict liability rule would not apply as the Zamindar was not negligent, he was not liable for the damage caused by the overflowing water. The following observation of the Privy Council may be noted:-

“ The existence of these tanks is absolutely necessary, not only for the beneficial enjoyment of the defendant’s estate , but for the sustenance of thousands of his ryots.

Looking, then, at the enormous benefit conferred on the public by these tanks ; considering that in this district at least, their existence is an absolute and positive necessity, for without them the land would be wilderness, and the country a desert. Considering these things, I think that it would be inequitable to impose upon the owners of the land, on which these tanks are situated, a greater obligation than to use all ordinary precautions to prevent the water from escaping and doing injury to their neighbours.”[37]              

Strict and Absolute liability appears to be on the two extreme points of No Fault Liability. Application of Strict liability with its exceptions where on one hand, would have let the case like Bhopal Gas Leak Disaster[38], Indian Council For Enviro-Legal Action v. U.O.I.[39]go escort free, with no damages being paid to the victims who got no benefit from the companies but it very much endangered their lives, on the other hand we have Absolute liability which is on the other extreme,  not even recognizing Act Of God as a ground for relief. At one point of time the common law rules as to Absolute liability for damages 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.[40]Think for a situation where the principle and remedy of Absolute Liability being applied for a case where due the trespassing cow you are held liable even if it was let out of the pasture by a trespassing third person.

Some where a line has to be drawn between Absolute liability and strict liability as both has their limitations but never the less they have some merits as well, atleast when they are applied in case laws, but for the time being, none of the principles are perfect or rather ready for application and will always hold some criticism.