PAGE NO – 1

Name of the paper – Juris2

Date – 23/11/2020

Answer – 3
INTRODUCTION

In civilized societies, most of the relations between the individual and the state are governed
by rules made or recognised by the state, that is, law. Law lays down the rights and duties of
the individuals. In other words, it prescribes what one is to do and what one is not to do and
what one is entitled to get it done. A breach of these rules is called wrong. When a person has
committed a wrong, he is said to be liable.

Thus, liability is the condition of the person who has committed a wrong. Salmond defines
liability as, ˜the bond of necessity that exists between the wrongdoer and the remedy of the
wrong'. The task of law is not finished only by laying down rights and duties; it ensures their
protection, enforcement and redress also. Therefore, liability is a very important part of the
study of law. The kinds of liability, when one becomes liable or in other words, when liability
comes into existence and the measure of liability are the things that must be known in this
connection.

Kinds of Liability/types of liability

Liability are of different kinds:

1. Civil.

2. Criminal.

3. Penal

4. Remedial

5. Vicarious

6. Absolute and Strict

1) Civil liability

Civil liability is the enforcement of the right of the plaintiff against the dependent in civil
proceedings. Civil liability gives rise to Civil Procedure whose purpose is to the enforcement
of certain rights claimed by the plaintiff against the defendant. Examples of civil proceedings
are an action for recovery of the Debt, Restoration of property, the specific performance of a
contract, recovery of damages, the issuing of an injunction against the threatened injury etc.

2) Criminal Liability

Criminal liability is the liability to be punished in a criminal proceeding. in criminal liability,

punishment is awarded to a wrongdoer. If the person is guilty of committing the offense with
criminal intension then he is liable for punishment. Criminal liability is based on the Maxim
"actus non facit reum nisi mens sit rea” it means the offender is guilty only when it is done
with the guilty mind.

3) Penal liability

The theory of penal liability is concerned with the punishment of wrong. There are different
kinds of punishment, Deterrent, preventive, retributive, reformative etc. A penal liability can
arise either from a criminal or a civil wrong. There are three aspects of penal liability those are
the conditions, incidence, and measure of a liability. As regards the conditions of penal liability,
it is expressed in the maxim "actus non facit reum nisi mens sit rea” This means that the Act
does not constitute guilt unless it is done with guilty intention. Two things are required to be
considered in this connection and those are the act and the mens rea requires the consideration
of imitation and negligence. The act is called the material condition of penal liability and the
mens rea is called the formal condition of penal liability.

4) Remedial Liability -

Remedial liability is based on the Maxim "Ubi jus ibi remedium” it means when there is right
there must be some remedy. The force of law can be used to compel a person to do what he
ought to do under the law of the country. if an injury is caused by the violation of a right, the
same can be remedied by compelling the person bound to comply with it.The first exception is
an imperfect obligation or duty, Second exception unenforceable duties and the third exception
is the impossibility of performance by law.
5) Vicarious liability

Vicarious liability means a liability which is incurred for or instead of another.

Generally, a person becomes liable for a tort committed by him. But there are certain
circumstances in which one person becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions to the general rule that man
must be forced to do by the force of law what he is bound to do by a rule of law.

Example

Master and servant

Firm and partners

Employer and independent contractor

6) Absolute or strict liability

Both in Civil and criminal law, mens rea or guilty mind is considered necessary to hold a
person responsible/liable. However, there are some exceptions to the general rule. In those
cases, a person is held responsible irrespective of the existence of either wrongful intent or
negligence. Such cases are known as the wrongs of absolute liability/ strict liability.

STRICT LIABILITY AND ABSOLUTE LIABILITY

According to Blackburn –

The rule of law is that the person who, for his own purpose, brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he
does not do so is prima facie answerable for all the damage which is the natural consequence
of its escape.

Strict liability

The principle of strict liability evolved in the case of Rylands v Fletcher. In the year 1868, the
principle of strict liability states that any person who keeps hazardous substances on his
premises will be held responsible if such substances escape the premises and causes any
damage. Going into the facts of the case, F had a mill on his land, and to power the mill, F built
a reservoir on his land. Due to some accident, the water from the reservoir flooded the coal
mines owned by R. Subsequently, R filed a suit against F. The Court held that the defendant
built the reservoir at his risk, and in course of it, if any accident happens then the defendant
will be liable for the accident and escape of the material.

Going by the principle laid in this case, it can be said that if a person brings on his land and
keeps some dangerous thing, and such a thing is likely to cause some damage if it escapes then
such person will be answerable for the damaged caused. The person from whose property such
substance escaped will be held accountable even when he hasn’t been negligent in keeping the
substance in his premises. The liability is imposed on him not because there is any negligence
on his part, but the substance kept on his premises is hazardous and dangerous. Based on this
judicial pronouncement, the concept of strict liability came into being. There are some essential
conditions which should be fulfilled to categorize a liability under the head of strict liability.

Essentials of Strict Liability

1. Dangerous Substances

The defendant will be held strictly liable only if a “dangerous” substances escapes from his
premises. For the purpose of imposing strict liability, a dangerous substance can be defined as
any substance which will cause some mischief or harm if it escapes. Things like explosives,
toxic gasses, electricity, etc. can be termed as dangerous things.

2. Escape

One more essential condition to make the defendant strictly liable is that the material should
escape from the premises and shouldn’t be within the reach of the defendant after its escape.For
instance, the defendant has some poisonous plant on his property. Leaves from the plant enter
the property of the plaintiff and is eaten by his cattle, who as a result die. The defendant will
be liable for the loss. But on the other hand, if the cattle belonging to the plaintiff enter the
premises of the defendant and eats the poisonous leaves and die, the defendant would not be
liable. In the judicial pronouncement of Reads v. Lyons & Co. it was held that if there is no
escape, the defendant cannot be held liable.
3. Non-natural Use

To constitute a strict liability, there should be a non-natural use of the land. In the case
of Rylands v. Fletcher, the water collected in the reservoir was considered to be a non-natural
use of the land. Storage of water for domestic use is considered to be natural use. But storing
water for the purpose of energizing a mill was considered non-natural by the Court. When the
term “non-natural” is to be considered, it should be kept in mind that there must be some special
use which increases the danger to others. Supply of cooking gas through the pipeline, electric
wiring in a house, etc. is considered to be the natural use of land. For instance, if the defendant
lights up a fire in his fireplace and a spark escapes and causes a fire, the defendant will not be
held liable as it was a natural use of the land.

So, these three conditions should be fulfilled to constitute principal of strict liability.

Exception to the rule of strict liability

There are certain exceptions to the rule of strict liability, which are-

• Plaintiff’s Fault:

If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be held liable, as
the plaintiff himself came in contact with the dangerous thing.In the judicial pronouncement
of Ponting v Noakes, the plaintiff’s horse died after it entered the property of the defendant
and ate some poisonous leaves. The Court held that it was a wrongful intrusion, and the
defendant was not to be held strictly liable for such loss.

• Act of God:

The phrase “act of God” can be defined as an event which is beyond the control of any human
agency. Such acts happen exclusively due to natural reasons and cannot be prevented even
while exercising caution and foresight. The defendant wouldn’t be liable for the loss if the
dangerous substance escaped because of some unforeseen and natural event which couldn’t
have been controlled in any manner.
• Act of the Third Party:

The rule also doesn’t apply when the damage is caused due to the act of a third party. The third
party means that the person is neither the servant of the defendant, nor the defendant has any
contract with them or control over their work. But where the acts of the third party can be
foreseen, the defendant must take due care. Otherwise, he will be held responsible. For
instance, in the case of Box v Jubb where the reservoir of the defendant overflowed because a
third party emptied his drain through the defendant’s reservoir, the Court held that the
defendant wouldn’t be liable.

• Consent of the Plaintiff:

his exception follows the principle of violenti non fit injuria. For instance, if A and B are
neighbours, and they share the same water source which is situated on the land of A, and if the
water escapes and causes damage to B, he can’t claim damages, as A wouldn’t be liable for the
damage.

Absolute liability

The concept of absolute liability evolved in India after the case of M.C Mehta vs Union of
India famously known as Oleum Gas Leak case. This is one of the historic cases in the Indian
Judiciary. The case of M.C Mehta is based on the principle of strict liability but with no
exception were given and the individual is made absolutely liable for his acts. It is based under
this principle that the defendant won’t be allowed to plead defence if he/she was at fault as it
was laid down in Ryland vs Fletcher case. After the Bhopal gas leak case many people lost
their lives and are suffering from some of the fatal diseases through the generation and because
of this there was an urgent need to develop a rule under strict liability which had no exceptions
available to the defendant to escape from the liability.

The rule laid down by the Honourable Supreme Court of India is much wider with respect to
the rules laid down the House of Lords in the case of Ryland vs Fletcher. It was propounded
by the Supreme Court that where an enterprise is engaged in a hazardous or inherently
dangerous activity and if any harm results to anybody on account of the accident in operation,
the enterprise would be held strictly and absolutely liable to compensate to all those who are
affected by the accident.

Essential Elements of Absolute Liability

The essential elements of absolute liability are-

• Dangerous Thing– As per the rules laid down, the liability of escape of a thing from an
individual’s land will arise only when the thing which is collected is a dangerous thing
that is a thing which likely causes damage or injury to other people in person or their
property on its escape. In various torts cases which have happened all over the world, the
doctrine of strict liability has held a large body of water, gas, electricity, vibrations,
sewage, flag-pole, explosives, noxious fumes, rusty wires etc are certain things which
come under the ambit of dangerous things.

• Escape– Anything which has caused damage or mischief should have escaped from the
area which was under the control of the defendant to come under the ambit of absolute
liability. Like it happened in the case of Read vs Lyons and Co. where the plaintiff was
working as an employee in the defendant’s company which was engaged in manufacturing
shells. The accident happened while she was on her duty that day within the company’s
premise. It happened when a piece which was being manufactured there exploded and due
to which the plaintiff suffered harm. After this incident and a case was filed against the
defendant’s company but the court eventually let go the defendant and gave the verdict
that strict liability is not applicable here in this particular case. This was declared by the
court because the explosion that took place was within the defendant’s premises and not
outside. And the concept says that it should have escaped the dangerous thing like shell
here from the boundaries of the defendant premise which didn’t happen and was missing
over here. So, the negligence on the part of the defendant could not be proved in the court.

• Non-natural use of land– Water collected on land for domestic purposes does not
amount to non-natural use of land but if one is storing it in large quantities like in a
reservoir as it was the case in Ryland vs Fletcher then it amounts to non-natural use of
land. The difference between natural and non-natural use of land by keeping in mind the
surrounding social conditions. As the growing of trees and plants on land is considered as
a natural use of land but if one starts growing trees which are poisonous in nature then it
will be considered as non-natural use of land. If an issue arises between the defendant and
 the plaintiff even though the defendant is using the land naturally, the court will not hold
the defendant liable for his conduct.

• Mischief- To make the person liable under this principle, the plaintiff at first needs to
show that the defendant had done the non-natural use of land and escaped the dangerous
thing which he has on his land which resulted in the injury further. In the case of Charing
Cross Electric Supply Co. vs Hydraulic Power Co., the defendant was assigned to supply
water for industrial works. But he was unable to keep their mains charged with a minimum
pressure that was required which led to the bursting of the pipeline at different places.
This resulted in causing heavy damage to the plaintiff which was proved in the court of
law. The defendants were held liable in spite of this that they were not at fault. These are
the few rules where this doctrine is applied.

Scope of Rule of Absolute Liability

In most of the places, the rule of strict liability and absolute liability are seen as exceptions in
the law. And the individual is held liable only when he/she is at fault. But, in such cases, the
individual could be held guilty even if he is not at fault. After the catastrophic accident of
Oleum Gas Leak case the act of The Public Liability Insurance Act, 1991 was introduced with
the main purpose of providing immediate relief to people who are victims of the accident in
which handling of hazardous substances is involved. The agenda behind this act was that the
act will create a public liability insurance fund which will eventually be used for the purpose
of compensating the victims. Hazardous Substance under this act is defined as any substance
which by reason of its chemical or any properties is liable to cause any damage to human
beings, other living creature, plants, microorganism, property or to the environment. The term
handling is described in section 2(c) of the Public Liability Insurance Act,1991 which is the
clear expression of the rule of absolute liability laid down in M.C Mehta vs Union of India.

APPLICATION OF STRICT AND ABSOLUTE LIABILITY BY THE INDIAN

JUDICIARY

Doubts about the act that was formulated for the protection of the victims of the tragedy in
Bhopal were raised by Mishra CJ. in the case of Charan Lal Sahu v. Union of India as to the
correctness of the rule. It was said that the Oleum gas leak case was an obiter. These doubts
were not accepted by the court in the case of Indian Council for Environmental Legal Action
v. Union of India and the M.C Mehta case was not called to be obiter. In the Indian Council
case the court, keeping in sight the absolute liability principle, put a fine of Rs. 38.385crores
on the defaulting company (HACL) with compound interest since 1997, imposing the “polluter
pays” principle according to which polluter must pay for the damage done to human beings
and the environment.

In a case where the plaintiff’s husband died as a result of getting electrocuted because of gross
negligence on the part of the Kerala State Electricity Board (K.S.E.B), the Kerala HC observed
that KSEB was involved in such a dangerous activity that it was absolutely liable for any
damage caused because of it. In Union of India v Prabhakaran, the court rejected the plea of
the Railways and held that the “contributory negligence” in the part of the plaintiff’s wife was
not to be considered in such cases where the railways had a strict liability, hence making the
State and its officials liable. The apex court discussed the doctrine of strict liability in the case
of M.P. Electricity Board v. Shail Kumari & Ors, where the Electricity Board was ordered to
compensate for the electrocution of one cyclist because of a livewire that got snapped and fell
on a public road which was partially inundated with water.

The rule has also been considered by the courts in a number of cases to decide the
appropriateness, legality and amount of damages to be paid by the defendants, whether
aggravated or punitive damages be awarded. Thus, it can be seen that these principles have
been recognized and applied by the Indian Judiciary to a great extent even in present cases.

CONCLUSION

As understood by the explanations given above, it is obvious that the rule of absolute liability
today is extremely essential in India in order to make sure that the ever growing number of
industries dealing with hazardous substances and thus carrying out inherently dangerous
activities, keep a check of the basic norms of safety of their employees working in such
conditions as well as of the people living in and around that area by holding them fully liable
for any damage caused to anyone because of such activities. It is important to observe the
change in the judiciary’s view on how the previously held notion that public industries carrying
out such work should not be held liable under such circumstances as they work for public
benefit, has changed with time and now they are held equally liable as the private industries
are. The present structure of the principle has so far turned out to be sufficient in regulating
these practices and so there is not an immediate need for reform although a better recognition
of it by the legislation is required.