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Tort Topic 6 No Fault Liability Stri
Tort Topic 6 No Fault Liability Stri
3.3 The basis of liability in the above case was the following rule propounded by Blackburn, J.:
3.4 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.”
3.5 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.
4.0 For the application of the rule therefore the following four 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) The thing that escaped in fact caused the damage.
4) It must be non-natural use of land
4.2 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. 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
4.3 DAMAGE
The damage suffered by the plaintiff should be a direct consequence of the thing that escaped. In
Ryland’s case, it is the large quantity of water that has caused the damage by flooding the mines of
the plaintiff. In other words there has to be a causal link to the thing that escapes and the damages
In a later case the House of Lords has also added the factor of ‘foreseeability’ . Please refer to
Cambridge water case (1994) 2AC 264
C. Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam AIR (1968)Ker 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 “extra-hazardous” object. The persons using such
an object are liable even for the negligence of their independent contractor.
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
7. 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 (1876) 2 Ex D1. 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.
8. 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(1894) 70 LT 547,
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 (1914) 3 KB 772, 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.
2. Landmark Case: MC Mehta v Union of India & others AIR (1987) SC 1086
2.1 FACTS of the case were as follows:
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, located 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.
2.2 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.
2.3 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.
2.4 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.
2.5 In M.C. Mehta case, as per Bhagwati, C.J., “…the rule of Rylands v. Fletcher evolved in the
year 1866 and it provides that a person who for his own purposes brings on to his land and collects
and keeps there anything likely to cause mischief if it escapes must keep it at his peril, if he fails to do
so is prima facie liable for the damage which is the natural consequence of its escape. The liability
under this rule is strict and it is no defence that the escaped without the person’s wilful act, default
So therefore it is not An altogether new concept, but only that it was not defined separately.
4.6 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.
4.7 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.
5.2 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” 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. ”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.
5.4 In Madras Railway Co. v Zamindar, 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.
5.4.1 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.
5.4.2 Looking, then, at the enormous benefit conferred on the public by these tank ; 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.”
5.5 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, Indian Council For Enviro-Legal Action v. U.O.I. 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. 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.
5.6 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, at least 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.