COMPARISON BETWEEN STRICT AND ABSOLUTE LIABILITY

THE CONCEPT 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 noncompliance 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.
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. 1 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 Fletcher2 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 defendants 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 plaintiffs 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.
1 Transco Plc v Stockport MBC [2003] UKHL 61.
2 (1868) L.R. 3 H.L. 330.

The basis of liability in the above case was the following rule propounded by Blackburn, J.3:
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
plaintiffs 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 neighbours reservoir, or whose cellar is invaded by the filth on his neighbours 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 neighbours 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.
(3) It must be non-natural use of land.
a) DANGEROUS THING
According to this rule, the liability for the escape of a thing from ones land provided the thing
collected was a dangerous thing, a thing which is likely to do mischief if it escapes. In Rylands v
3 The rule was formulated by Blackburn, J. in Exchequer Chamber in Fletcher v
Rylands, (1866) L.R. 1 Ex 265 and the same was approved by the House of Lords in
Rylands v Fletcher,(1868) L.R. 3 H.L. 330.

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.
b) 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.4 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.
c) NON-NATURAL USE
Water collected in the reservoir in such a huge quantity in Rylands v Fletcher was held to be nonnatural use of land. Keeping water for ordinary domestic purposes is natural-use. 5 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. In Noble v Harrison,6 it has been held that trees on ones land are not non-natural use
of land. There the branch of a non-poisonous tree growing on the defendants land, which
overhung on the highway, suddenly broke and fell on the plaintiffs 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,7 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.

4 (1946) 2 All E.R. 471.

5 Richards v Lothian, (1913) A.C. 263.
6 (1926) 2 K.B. 332.
7 (1947) 1 All E.R. 344.

Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam,8 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)
(ii)
(iii)
(iv)
(v)

i.

Default of the claimant

Act of God
Statutory Authority
Consent of the claimant
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 neighbours operations on adjacent land , and courts the danger
by doing some act which renders the flooding probable he cannot complain. 9 So too in Ponting v
Noakes10, the claimants horse reached over the defendants 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 horses own intrusion and alternatively there had been no escape of
vegetation.
ii.

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.11 In this case
8 A.I.R. 1968 Kerala, 151.
9 Lomax v Stott(1870) 39 L.J. Ch. 834.
10 [1894] 2 Q.B. 281.
11 (1876) 2 Ex.D. 1.

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.
iii.

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,12 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 claimants premises
were flooded; the company was held not liable. On the other hand, in Charing Cross Electricity
Co v Hydraulic Power Co.13 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.
iv.

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. 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.
v.

ACT OF THIRD PARTY

If the harm has been caused due to the act of a stranger, who is neither the defendants servant
nor the defendant has any control over him, the defendant will not be liable under this rule. Thus
in Box v Jubb14 the overflow from the defendants reservoir was caused by the blocking of a
12 (1894) 70 L.T. 547
13 [1914] 3 K.B. 772.
14 (1879) 4 Ex. D. 76

drain by strangers, the defendant was held not liable for that. Similarly, in Richards v Lothian15
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 plaintiffs goods. The
defendants were held not liable.

15 (1913) A.C. 263.

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 Others16. 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.
16 AIR 1987, SC 1086.

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 shareholders 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--vis the
tortious principle of strict liability under the rule in Rylands v. Fletcher.
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. But the negligence was proved by the escape and was a fiction
to save the face of the will theory. The owner of a trespassing cow was liable even if it was let
out of the pasture by a trespassing third person 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 Pollock choked and crippled by exceptions.
So therefore it is not a new concept only that it was not defined separately.
MERITS AND DEMERITS OF STRICT AND ABSOLUTE LIABILITY
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,17 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. 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
acidents.
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 Workmens
Compensation where compensation is given even without fault.
It bridged 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, M.C.Mehta v. Union of India 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
17 A.I.R. 1977 S.C. 1248.

limited application due to its absolute nature, only limited to Hazardous Industries, and
nevertheless, 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 be 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. 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.