Q.4.

WHAT IS VICARIOUS LIABILITY AND HOW STRICT LIABILITY AND ABSOLUTE LIABILITY ARE
DIFFERENT FROM VICARIOUS LIABILITY? DISCUSS.
VICARIOUS LIABILITY- Vicarious liability means liability of a person other than the one who committed
toe tort. Hence, it is an exception to the general principle of Law of Torts that the person committing the
tort shall himself be liable to pay compensation to the victim of such wrong-doing that constitutes a
Tort.
MASTER-SERVANT LIABILTY- Vicarious liability is also named as Master- Servant liability i.e. the master is
held liable for the tort committed by his servant. But it is more than this. In addition to liability of the
master for the torts of his servant, vicarious liability is applied in case of partners and also agents. In this
sense, vicarious liability means the liability of a person for the torts committed by another person or
liability for torts of a third person.
3 EXAMPLES OF VIACRIOUS LIABILITY-
1. Liability of the Principal for torts committed by his Agent.
2. Liability of partners for tort committed by any partner.
3. Liability of the Master for the tort committed by his servant.
PRINCIPAL AGENT LIABILITY- Principal is the main person in business or other position. Agent is his
representative, who deals with the outside people on behalf of the Principal. Since people are dealing
with the representative or agent on behalf of the Principal, therefore for wrongs committed by the
agent during his dealings, will give a right to persons so wronged to claim compensation from the
Principal. This Is the basis of liability of the Principal for torts committed by his agent.
Capacity of agent and wrong done essential- But for applying this principal of Vicarious liability, two
things must exist_ 1. The person committing wrong was agent, and 2. While doing the wrong, he was
acting as agent.
Supreme Court in State Bank of India v. Shyma Devi, AIR 1978 SC 1263, where the lady gave cheque to
the clerk of the bank as a neighbor to deposit in her account but he played a fraud, The Apex Court held
the clerk was not acting as agent of the bank, and therefore, bank is not vicariously liable.
PARTNERS OF A FIRM- The concept of liability of partners of a firm is not strictly vicarious liability but
some authors include it within it. As per the provisions of the Partnership Act, the liability of the firm is
both joint and several. Under this principle, in case of a tort committed by the firm, a partner may be
held liable for the wrong committed by another partner.
MASTER-SERVANT LIABILITY- This is the most important category of vicarious liability. Under it, the
Master i.e person employing the servant is held liable for any tort committed by his servant. Like, the
Principal-Agent, in the case of master-servant also, the outsiders deal with the servant on behalf of the
master and take the act wronged as the one authorized by the master himself.
2 Essentials of Master-Servant Liability- Following 2 requirements must be met for holding the master
liable fo the tort committed by his servant:
1. Tort has been committed by the servant; and
2. Tort was committed during the course of employment.
For the first, relationship of master and servant must be established, and for the second, the act must
have connection with the employment. The servant here needs to be differentiated from an
independent contractor.
Contractor- Servant Difference- The contractor also acts on behalf of the Master but in such cases of
tort, master is not held liable but contractor himself is liable to pay damages. This is because of his
different position from that of the servant. It can be pointed out as under:
1. In case of work by the contractor, it is not done under the directions and dorect control of the
Master/Employer.
2. The act constituting the tort is not during the employment because there is no master-servant
relationship, and therefore, it cannot be during the course of employment.
CASES WHERE MASTER LIABLE FOR TORTS COMMITTED BY INDEPENDENT CONTRACTOR-
As a n EXCEPTION to the rule that master is not liable for torts committed by the independent character,
the following can be referred:
1. Employer AUTHORISING OR SUBSEQUENTLY RATIFYING ILLEGAL ACT-.
2. IN CASES OF STRCT LIABILITY AS LAID DOWN IN RYLANDS v. FLETCHER.
3. IF DANGER OF THE ACT IS CAUSED ON OR NEAR THE HIGHWAY.
4. IF WRONG CAUSED TO THE PLAINTIFF IS NUISANC IN FORM OF WITHDRAWAL OF SUPPORT FROM
NEIGHBOUR’S LAND
5. WHEN TORT RESULTS IN THE BREACH OF A MASTER’S COMMON LAW DUTIES. Such FOUR duties as
interpreted in the case of Smith v. Charles Baker & Sons (1891) . It was observed:
(a) Duty of employer to take reasonable care to provide proper appliances.

(b) To maintain them in a proper condition.

© Not subject those employed to unnecessary risk.
VICARIOUS LIABILITY OF STATE
To understand the vicarious liability of the State, the answer actually lies in answer to the question:
Whether State is Liable in Torts? Why this question arises?
1. State has to discharge some sovereign functions like defence and maintaining law and order. If every
now and then, the question of liability will arise, the functionaries of The State shall be hesitant and
defensive in discharging their essential functions.
2. State liability in Torts has remained unclear in the case laws. Since the question has not been clearly
explained, the question becomes important foe an answer.
The available information on these two questions comes as under:
1. SOVEEIGN FUNCTIONS AND LIABILITY- In addition to sovereign functions, the modern welfare State
also performs a lot of non-sovereign functions like housing and building of roads, bridges etc. Therefore,
the case law on the point answers as under_
NO LIABILITY IN SOVEREIGN FUNCTIONS PERFORMED WITHIN PRESCRIBED LIMITS AND HONESTLY- If the
employee of the State discharges his duties within the prescribed limits of his powers and duties, and he
does it honestly and in good faith, there is no liability of the State. But if the act constituting tort is
unlawful, then the State is vicariously liable. The important cases on the point are:
Rudal Shah v. State of Bihar, AIR 1983SC1086, where the petioiner was kept in jail even after he was
acquitted, the violation was serious and of right to life and personal liberty. Hence, State was made
vicariously liable.
Bhim Singh v. State of J&K, AIR 1986SC494, where MLA was arrested while going to attend the Assembly
session in violation of his immunity provided under the Constitution. The State was held liable for the
tort, again violation of Article 21.
STATE LIABILITY FOR TORTS DURING NON_SOVEREIGN FUNCTIONS- Artice 300 of the Constitution deals
with such liability in acts of trade and commerce. The language of such liability is quite confusing, going
back to the liability as it was before independence i.e. under the Govt. of India Act, 1935 and again goig
back to the liability of East of India Company. The case law has been conflicting making the answer
murky. Normally, it is said State is liable like a private individual. However, to make State liability in Torts
more clear, the FIRST LAW COMMISSION recommended for a legislation like the one in UK and USA. In
the case of N. Nagendra v. State of AP, AIR 1994SC2663, the Apex Court referred to such requirement of
legislation mentioning the recommendation of Law Commission and developments in UK and USA. The
court also observed that today the difference of State liability is not relevant, and it is liable unless
protected by the legal principles applicable in Torts.
STRICT LIABILITY OR RYLANDS v. FLETCHER LIABILITY
Since the principle of strict liability was laid down in the landmark judgment of the House of Lords in
Rylands v. Fletcher (1868), such liability is also called Rylands v. Fletcher liability.
STRICT LIABILITY IS EXCEPTION TO PRINCIPLE OF PROVING INTENTIONAL ACT OR CARELESSNESS FOR
TORT LIABILITY- Normally, an act constitutes a Tort if it was done with wrong intention of the wrong
doer. But if the damage is caused is of a grave nature, this principle is not applied under the rule of Strict
Liability Hence, Strict Liability is an exception to the normal rule of proving an act constituting a tort.
STRICT LIABILITY IS EXCEPTION TO THE EXCEPTION OF VICARIOUS LIABILITY- Under the principle of
vicarious liability, master is liable for the tort committed by his servant. The exception to this master-
servant liability is that an independent contractor is not such a servant for whose tort, the master is
liable i.e. independent contractor is himself liable for his tort. House of Lords in the famous case of
Rylands v. Fletcher laid down that in certain kind of torts, the principle of Strict Liability shall be
applicable and in such category of cases where the tort is committed by the independent contractor but
even then, the MASTER SHALL BE LIABLE FOR THE TORT COMMITTED BY THE CONTRACTOR ENGAGED
BY HIM.
STRICT LIABILITY PRINCIPLE IN RYLANDS v. FLETCHER-
An important observation by Justice Blackburn is the basis of strict liability:
“ We think 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 onsequence of its escape.”
REQURIREMENTS FOR APPLYING STRICT LIABILITY:
1. Some dangerous thing must have been brought by a person on his land. Examples of dangerous thing
are: large body of water, gas, electricity, vibrations, sewage explosives etc.
2. The thing thus brought or kept by a person on his land must escape.
3. It must be non-natural use of land.
STRICT LIABILITY IS NOT FREE FROM EXCEPTIONS-
While laying down the rule of strict liability, the House of Lords in Rylands case also provided 5
exceptions from the application of liability of the master.
5 EXCEPTIONS/DEFENCES IN LIABILITY OF STRICT LIABILITY- In Rylands v. Fletcher, the following 5
exceptions (as defences from escaping from liability of the owner) was also laid down. It means if any of
the following defences are available to an owner of the land, he will not be liable to pay damages. These
FIVE DEFENCES are as under:
1.Plaintiff’s Own Default- If the person claiming compensation had himself committed the wrong or has
led to the damage. Example of entering into another’s land where accident occurred.
2. Act of God- If the escape could not be foreseen and it is because of supernatural forces without any
human intervention. Like earthquake, heavy rains causing floods, tsunami etc. BLACKBURN J. himself
defined it as: “ Circumstances which no human foresight can provide against and of which human
prudence is not bound to recognize the possibility.” In the case where the authorities were expected to
lower the water level of the dam before rainy season but failed to do so resulting in overrelease of
water causing damage to the plantation of the defendant, the defence of Act of God was not accepted
by the Court.
3. Consent of the Plaintiff- This is covered under the principle volenti non fit injuria which means injury
voluntarily suffered is not a legal injury that can be compensated. The examples are consenting for a
common water reservoir etc.
4. Act of Third Party- If the damage was caused by the act of a third person on whom the defendant
does not have any control nor could he foresee such an act. Supreme Court applied this defence in MP
Electricity Board v. Shail Kumar, AIR 2002SC551.
4. Act of Statutory Authority- If a legal duty is caused on an authority and while performing that act and
without negligence, the damage caused is covered under this defence.
ABSOLUTE LIABILITY
The Rule of Absolute Liability is an extension of Strict Liability that has been developed by the Supreme
Court of India in MC Mehta v. Union of India, AIR 1987SC1086 and also applied in Bhopal Gas Leak
Disaster known as Union Carbide v. Union of India, AIR1990SC 273.
WHAT IS ABSOLUTE LIABILITY? This is strict liability without recognizing the exceptions of Rylands v.
Fletcher while applying the rule of strict liability. It is rule of strict liability without exceptions.The reason
given is the Heavy Loss and the Rule Of Rylands v. Fletcher being about 150 years old having little
relevance today.
The Rule of Absolute Liability emerged in the judgment of MC Mehta v. Union of India, AIR
1987SC1086. CJ PN Bhagwati made very important observations in this regard. The brief reference can
be made as under:
1. Ryland v. Fletcher Cannot Afford Guidance- The rule evolved in Rylands v. Fletcher in the 19th century
at a time when developments of science and technology had not taken place 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.
2. Hazardous or dangerous Enterprise Has Non-Delegable Duty of Safety- CJ Bhagwati held: “We are of
the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which
poses a potential threat to the health and safety of the persons working in the factory and residing in
the surrounding areas OWES AN ABSOLUTE AND NON-DELEGABLE DUTY to the community to ensure
that no harm results to anyone on account of hazardous or inherently dangerous activity which it has
undertaken.”.
3. LIABILITY IS STRICT AND ABSOLUTE WITHOUT ANY EXCEPTIONS- The Apex Court concluded: “ 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 the 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 tortuous principle of strict liability under the
rule in Rylands v. Fletcher.”
PRINCIPLE REITERATED IN BHOPAL GAS TRAGEDY CASE- Bhopal Gas tragedy happened before MC
Mehta’s facts but decision came late. The case known as Union Carbide Corporation v. Union of India,
AIR 1990 SC273 further strengthened the rule of Absolute Liability. This case also led to the enactment
of The Public Liability Insurance Act, 1991 for giving immediate relief to the victims.
DIFFERNTIATING VICARIOUS, STRICT AND ABSOLUTE LIABILITY
1. Vicarious liability is exception to the general principle of tort liability that wrong doer himself is liable
for paying compensation. Under this exceptional rule, master is liable for the tort committed by his
servant, and Principal is liabe for the wrong of his agent.
2. Strict and Absolute Liability are exception to the rule that if the danger is serious and damage caused
is severe, the general principle under Vicarious Liability that for the wrong caused by Independent
Contractor, the master is not liable shall not apply. As such, Strict liability is an exception to the rule of
Vicarious Liability.
3. Strict Liability is also an exception to the general principle of tort liability that the wrong act to be
named a tort must be intentional or negligent act. Under Strict liability no intention or negligence is
required to be proved.
4. Whereas Vicarious and Strict Liability principle has emerged from the English case of Rylands v.
Fletcher, Absolute Liability is an Indian Rule laid down in MC Mehta v. Union of India.
5. Absolute liability is Strict Liability without accepting 5 defences prescribed in Rylands v. Fletcher. It
means Absolute Liability is New Strict Liability principle knowing no defences of Rylands v. Fletcher. It is
strict liability absolutely applicable.
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Q. 5. DISCUSS IN BRIEF THE GENERAL DEFENCES IN TORT LIABILITY.

INTRODUCTION- When a tort is committed, it gives right to the victim to file a plaint for claiming
damages. In this capacity, the victim of the tort is called the Plaintiff and the wrong doer i.e person
against whom the case is filed is called the Defendant. To claim compensation, the plaintiff is required to
prove the essentials required for claiming damages. Likewise, the Defendant has also a right to plead
that he is not liable to pay the damages. The grounds available to the defendant, which if proved make
the defendant not liable to pay compensation to the plaintiff, are called the DEFENCES.
GENERAL DEFENCES IN TORT LIABILITY
There are EIGHT general defences recognized in the Law of Torts. Any one of them, if proved by the
defendant, escapes the defendant from liability to pay damages to the plaintiff. These are:
1. CONSENT OF PLAINTIFF or volenti non fit injuria.
2. PLAINTIFF HIMSELF IS WRONGDOER.
3. DAMAGE IS RESULT OF INEVITABE OR UNAVOIDABLE ACCIDENT
4. ACT CAUSING DAMAGE IS THE ACT OF GOD BEYOND CONTROL OF DEFENDANT
5. DAMAGE WAS CAUSED WHILE EXCERCISING RIGHT OF PRIVATE DEFENCE BY THE DEFENDANT
6. ACT WAS THE RESULT OF A GENUINE MISTAKE
7. THE ACT RESULTED FROM A GRAVE NECESSITY
8. IT WAS ACT OF STATUTORY AUTHORITY WORKING UNDER THE LAW.
A brief discussion with illustrations of these general defences is as under:
VOLENTI NON FIT INJURIA OR CONSENT OF THE PLAINTIFF-