MODULE-IV

Rule of Strict Liability1

The strict liability principle is an extremely important concept under the law of torts. The
basis of this principle basically lies in the inherent harm that some activities can inflict. For
example, leaking poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract
this rule.

Under the strict liability rule, the law makes people pay compensation for damages even if they
are not at fault. In other words, people have to pay compensation to victims even if they took
all the necessary precautions. In fact, permissions allowing such activities often include this
principle as a pre-condition.

Rylands v. Fletcher

The rule of strict liability originates from the famous English case of Rylands v. Fletcher.
According to the facts of this case, the defendant owned a mill and wanted to improve
its water supply. For this purpose, he employed a firm of reputed engineers to construct a
reservoir nearby.

The problem occurred when the reservoir was so full one day that the water from it started
over-flowing. The water flowed with so much force that it entered the plaintiff’s mine and
damaged everything.

The engineers, who were independent contractors of the defendant, were clearly at fault. This
is because they were negligent in constructing the reservoir. This is exactly what the
defendant also said for avoiding his liability.

The court, however, disagreed and explained the strict liability rule. It is said that when
somebody keeps something on his property for his benefit, it should not escape and affect
others. In case it so escapes, the owner of that thing must compensate the victim even if he
was not negligent.

The essentials of strict liability are:2

• Hazardous or Dangerous substance: The substance will be regarded as

dangerous if on escape it can cause some mischief or harm to anyone. Even
ordinary things that if on leaving the premises can cause damage is dangerous.

• Escape: It is important to fix strict liability that the thing must be out of the
premises and control of the defendant. E.g.: If a person has a poisonous plant on his
premises and it is reaching out to another person’s land, the defendant cannot take
the defense that the plant is originally is on his land and only the branches are on
others land. This will be regarded as an escape and if someone consumes those
poisonous leaves, the defendant, in that case, can be held liable.
 • Non-natural use: To constitute strict liability it is necessary the dangerous
thing kept on the premises is used for non-natural purposes. The storage of water in
huge quantities for energizing mill is non-natural use of water and therefore the
defendant was held liable in Ryland’s case.
These three conditions need to be satisfied simultaneously to fix strict liability in any case.

Exceptions to Strict Liability

1. Plaintiff’s Own Default: When damage is caused to the plaintiff

solely due to his own fault, he shall receive no remedy in such cases.

Case: Ponting vs. Noakes, (1894) 2 QB 281- In this case, the plaintiff’s horse
had nibbled on some poisonous leaves by reaching over the boundary of the
defendant’s land and had eventually died. The court held that the vegetation on
the defendant’s land had not spread over to the plaintiff’s side but it was the
intrusion of the plaintiff’s horse in the defendant’s land when it chewed on the
leaves of the plant sowed in the defendant’s plot. It was a case of the plaintiff
himself being at fault, therefore he could not demand any remedy for the loss
caused to him.

2. Act of God
An act of God is a sudden, direct , and irresistible act of nature that nobody can
reasonably prepare for. It can cause damage regardless of how many precautions one
may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc.
are acts of God. Any damage that occurs due to these acts does not attract strict
liability.

3. Wrongful act of a third party

Sometimes, the involvement of third parties may be the cause of damages. For
example, renovation work in one flat may cause some nuisance to another flat.
Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue
the person renovating the other flat.

4. Voluntia non-fit Injuria:

Anyone entering the premises having hazardous substance knowingly and out of
free consent cannot take the defense of strict liability. If two people jointly own a
dangerous thing, on escape one cannot blame the other and claim damages. As the
dangerous thing is incorporated with the consent of both people and one
cannot take action against another.

Absolute Liability3

Inception in India
The modifications in the existing Doctrine of Rylands vs. Fletcher led to the development of
Doctrine of Absolute Liability(M.C. Mehta v. Union of India ) that prevented the defendants
from taking up any defense against payment of compensation:-

No exceptions
· If an industry or enterprise is involved in any inherently dangerous activity, then for any
damage arising out of the conduction of that activity, the defendants (the owners of the
industry) will have no access to any defence or exception and will be absolutely liable to pay
compensation to the aggrieved parties.

· The enterprise will be held responsible for all possible damages or consequences resulting
from the activity. This will make such industries provide safety equipments to their workers
to prevent any mishap. Therefore, this will safeguard the interests of the workers and will
give them a refined, safe working atmosphere.

No requirement of the escape

· The element of escape which is essential in strict liability may be ignored here as this
restricts the application of this Doctrine of Absolute Liability as often incidents may arise
where the escape of the dangerous thing like poisonous fumes may not take place outside the
industry premises but may damage the workers inside. The worker’s right to compensation
will not be ignored in this case. Therefore, the extent of this principle is to be applied in a
wider context ruling out the element of escape.

Deep Pocket theory

· In cases where strict liability applies, compensation paid is according to the nature and
quantum of damages caused but in cases of absolute liability, compensation or damage to be
paid is exemplary in nature. The amount decided upon should be more than the damage
caused as industrial hazardous accidents generally causes mass death and destruction of
property and the environment.

M.C. Mehta v. Union of India (1987)4

Shriram Foods and Fertiliser Plant, Delhi (Shriram) were situated amidst a population of
200,000 people. It manufactured items such as glycerin soap and technical hard oil. The
petitioner, M.C. Mehta, filed a writ petition(art. 32) in the Supreme Court to obtain an order
for closure of the plant and its relocation to an area where it “would not be any real danger to
the health and safety of the people.”(art 21)
 During the pendency of the petition, oleum gas leaked from the plant causing significant
detrimental health effects to the local population, pursuant to which compensation claims were
filed5.
This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of panic in
Delhi. One person died in the incident and a few were hospitalized. The case lays down the
principle of absolute liability and the concept of deep pockets

Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India, -

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place between the
intervening night of 2nd and 3rd December 1984. The leakage of methyl-iso-cyanide(MIC)
poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major
disaster and over three thousand people lost their lives. There was a heavy loss to
property, flora, and fauna. The effects were so grave that children in those areas are born with
deformities even today. A case was filed in the American New York District Court as the
Union Carbide Company in Bhopal was a branch of the U.S.-based Union Carbide Company.
The case was dismissed there owing to no jurisdiction. The Government of India enacted the
Bhopal Gas Disaster (Processing of Claims) Act, 1985, and sued the company for damages
on behalf of the victims. The Court applying the principle of ‘Absolute Liability’ held the
company liable and ordered it to pay compensation to the victims.
Vicarious Liability
Generally, a person is liable for his own wrongful acts and one does not incur any liability for
the acts done by others. In certain cases, however, vicarious liability, that is the liability of
one person for the act of another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of relationship between
A and B, and the wrongful act should be, in certain way, connected with that relationship.

The common examples of such liability are:

(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.

So Vicarious Liability deals with cases where one person is liable for the acts of others. In the
field of Torts, it is considered to be an exception to the general rule that a person is liable for
his own acts only. It is based on the principle of quid facit per se per album facit per se,
which means, “He who does an act through another is deemed in law to do it himself”. So in
a case of vicarious liability both the person at whose behest the act is done as well as the
person who does the act are liable. Thus, employers are vicariously liable for the torts of their
employees that are committed during the course of employment.

Reasons for vicarious liability

Several reasons have been advanced as a justification for the imposition of vicarious
liability:
(1) The master has the ‘deepest pockets. The wealth of a defendant, or the fact that he has
access to resources via insurance, has in some cases had an unconscious influence on the
development of legal principles.

(2) As the employer makes a profit from the activities of his employees, he should also bear
any losses that those activities cause.

For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.

A servant is a person employed by another to do work under the direction and control of his
master. As a general rule, the master is liable for the tort of his servant but he is not liable for
the tort of an independent contractor. It, therefore, becomes essential to distinguish between
the two.

A servant is an agent who is subject to the control and supervision of his employer regarding
the manner in which the work is to be done. An independent contractor is not subject to any
such control. He undertakes to do certain work and regarding the manner in which the work
is to be done. He is his own master and exercises his own discretion. An independent
contractor is one “who undertakes to produce a given result, but so that in the actual
exclusion of the work, he is not under the order or control of the person for whom he does it,
and may use his own discretion in things not specified beforehand.”

Example:
My car driver is my servant. If he negligently knocks down X, I will be liable for that. But if
he hire a taxi for going to railway station and a taxi driver negligently hits X, I will not be
liable towards X because the driver is not my servant but only an independent contractor.

Vicarious Liability of State6

Under Vicarious Liability it was conveyed that an individual is liable for the acts of another.
This was stated by the Judiciary which is a part of the State/ Government. This gives rise to a
question –
• What if the Government’s employees have done any wrongful act resulting in
damage to others?
The answer to this question is the Vicarious Liability of State. Vicarious Liability of State got
evolved by the East India Company in 1858. But the article 300 came into effect in 1950.
Position in India:
The position of State liability as stated in Article 300 of the Constitution is as under: Clause
(1) of Article 300 of the Constitution provides first, that the Government of India may sue or
be sued by the name of the Union of India and the Government of a State may sue or be sued
by the name of the State

• State of Rajasthan v. Vidyawati

The facts of the case are that a person named Lokumal was employed by the State of Rajasthan
as a temporary driver for a Government car. After the completion of the repairs for the car,
during his return from the workshop, he knocked down a citizen
named Jagdishlal (Plaintiff). Jagdishlal was severely injured and he died subsequently.
The plaintiff’s wife (widow) named Vidyawati and her minor daughter, through her mother as
next friend sued Lokumal and the State of Rajasthan for relief.
Supreme Court held that the State was liable to pay the damages incurred as the act of driver
was not a sovereign function.

• Kasturilal Ralia Ram v. State of UP

The facts of this case are that Plaintiff was arrested by the UP police officers on suspicion of
having stolen property. On further investigation, a huge quantity of gold was found and the
same was seized by the police officials. Finally, he was released, but the gold was not returned
to him as the Head Constable in charge of the makhana absconded with the gold.  Plaintiff then
sued the State of UP to return his gold or to pay damages for the same.
Supreme Court said that it is the negligence of the police officers in dealing with the Plaintiff’s
property and is violative of the UP Police Regulations.
But the court finally contended that the State is not liable to pay because the police officers
acted negligently while they are executing their duty in arresting a person. These powers like
arresting a person and seizing property are sovereign powers. The contention of the Supreme
Court was based on the statutory power and the act done in exercise of the sovereign function.

• Nilabati Behera v. State of Orissa

In this case, Smt. Nilabati Behera, Plaintiff sent a letter to the Supreme Court stating that
her 20-year-old son named Suman Behera died under police custody after being severely
injured.  The Petitioner claimed compensation for the violation of her son’s right under Article
21. Police had arrested him for theft and he was detained at a police outpost. On the very next
day, his dead body was found near the railway track. Plaintiff strongly claimed that his death
was the result of injuries inflicted by police.
Doctor also attested that the injury on the body of deceased was due to a blunt object which
may be a lathi. Finally, the State of Orissa was sued to provide compensation of Rs.1,50,000
to the petitioner and Rs.10,000 to the Supreme Court’s Legal Aid Committee. The Supreme
Court also ordered the State of Orissa to commence criminal proceedings against the persons
who killed Suman Behara.

Bhim Singh v. State Of Jammu And Kashmir [xi]

case, the Court awarded the exemplary cost of Rs 50,000 on account of the
authoritarian manner in which the police played with the liberty of the appellant.

Doctrine Of Sovereign Immunity

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an actionable
claim are presented, liability can be avoided by giving this justification.
The doctrine of sovereign immunity is based on the Common Law principle borrowed from
the British Jurisprudence that the King commits no wrong and that he cannot be guilty of
personal negligence or misconduct, and as such cannot be responsible for the negligence or
misconduct of his servants.
After the commencement of the Constitution, perhaps the first major case which came up
before the Supreme Court for the determination of liability of Government for torts of its
employees was the case of 

State of Rajasthan v. Vidyawati In this case, the court rejected the plea of immunity of the
State and held that the State was liable for the tortious act of the driver like any other employer.

Later, in Kasturi Lal v. the State of U.P., the Apex Court took a different view and the entire
situation was embroiled in confusion. In this case, the Supreme Court distinguishing Sovereign
and non-Sovereign functions of the state held that abuse of police power is a Sovereign act,
therefore State is not liable

sovereign Functions :
Sovereign functions are those actions of the state for which it is not answerable in any court
of law. For instance, acts such as the defense of the country, raising and maintaining
armed forces, making peace or war, foreign affairs, acquiring and retaining territory. In
the modern sense, the distinction between sovereign or non-sovereign power thus does not
exist. It all depends on the nature of the power and manner of its exercise

• In Bhim Singh v. State of j &k and then principle laid down

in Nilabati Behera v. the State of Orissa further extended to cover cases of
unlawful detention.
•
Conclusion

Whatever justifications initially existed for sovereign immunity, they are no longer valid in
today’s society. We conclude that the State’s sovereign immunity for tort liability is outdated
and is no longer warranted.