FREE CONSENT

A PROJECT SUBMITTED TO

ARMY INSTITUTE OF LAW, MOHALI

UNDER THE GUIDANCE OF:
MRS ANMOLPREET KAUR BAJWA (ASST. PROFESSOR)

IN PARTIAL FULLFILMENT OF THE REQUIREMENT OF THE DEGREE OF

BA L.L.B. FIRST YEAR (LAW OF TORTS)
2019-20

Submitted by:
AYUSH SINGH (1942)

Punjabi University, Patiala

July 2019 to December 2019
 DECLARATION

It is certified that the project work presented in the report entitled ‘Strict and
Absolute liability’ embodied the results of original research work carried out
by me. All the ideas and references have been duly acknowledged. The
information and data given is authentic to the best of my knowledge.

Name: Ayush Singh Roll No: 1942

Place: AIL Mohali Date: August 2019

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Law of Torts

teacher, Ms. Anmolpreet Kaur, as well as our Principal, Dr. Tejinder Kaur,
who gave me the opportunity to do this wonderful project on the topic ‘Strict
and Absolute liability’ which helped me in doing a lot of research and also
gain more knowledge about the topic. I am grateful to them for encouraging me
and guiding me throughout the project.

I would also like to thank my parents and friends who helped me successfully
finalize this project in the limited time provided.
 INDEX

Page
S.no Title
no.

1 Introduction to Torts

2 Introduction to Strict Liability

3 Introduction to Absolute Liability

5 Bibliography
 INTRODUCTION TO TORTS

Definition of Tort

1. According to Section 2(m) of the Limitation Act, 1963 – “Tort means a

civil wrong which is not exclusively a breach of contract or breach of
trust.”
2. According to Fraser – “Tort is an infringement of a right in rem of a

private individual giving a right of compensation at the suit of the injured

party.”

Meaning of Tort

A Tort is simply a civil wrong. The word tort has been taken from the Latin
word ‘tortum’, which means ‘to twist’. Thus, “tort” means “a conduct which is
not straight or lawful, but, on the other hand, twisted, crooked or unlawful.”
The Law of Torts consists of various torts or wrongful acts where the
wrongdoer violates some legal right vested in another person. A tort is a private
wrong against a person for which the injured person may recover (unliquidated)
damages, i.e. monetary compensation. The injured party may sue the wrongdoer
(tort-feasor) to recover damages to compensate for the harm or loss incurred.
“Torts are civil wrongs for which the injured party may seek legal redressal
for.” The injured party in case of torts is entitled to claim ‘unliquidated
damages', the judgment of which is given by the judge of a court based on the
facts, circumstances and the amount of injury suffered which is actually
suffered by the injured party. The purpose of tort law is to ensure that people
reasonably coexist with each other.

In case of a tort case there are two parties involved in it i.e. plaintiff and
defendant. Plaintiff is the person whose rights have been violated, the one who
has been injured. He is the one who is the complainant, who comes to the court
seeking remedy. On the other hand defendant is a person who has violated the
rights of the other person and has injured the other person.

Nature of a Tort

Tort may be defined as a civil wrong which is redressible by an action for

unliquidated damages and which is other than a mere breach of contract or
breach of trust.

Thus, it may be observed that:

1. Tort is a civil wrong;

2. Tort is other than a mere breach of contract or breach of trust;
3. Tort is redressible by an action for unliquidated damages.

Essential Elements of a Tort

To constitute a tort, it is essential that the following two conditions are

satisfied:

1. There must be some act or omission on the part of the defendant, and
2. The act or omission should result in legal damage (injuria), i.e., violation
of a legal right vested in the plaintiff (Injuria sine damno).
 INTRODUCTION TO 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, Rylands had a mill on his land, and to power the mill, He built a
reservoir on his land. Due to some accident, the water from the reservoir
flooded the coal mines owned by Thomas Fletcher. Subsequently, Fletcher filed
a suit against Rylands. 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

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.

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, which
as a result dies. 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.

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.

These three condition needs to be satisfied simultaneously to constitute a 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: This 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.
 INTRODUCTION TO ABSOLUTE LIABILITY
If an industry or enterprise is engaged in some inherently dangerous activity
from which it is deriving commercial gain and that activity is capable of causing
catastrophic damage then the industry officials are absolutely liable to pay
compensation to the aggrieved parties. The industry cannot plead that all safety
measures were taken care of by them and that there was negligence on their
part. They will not be allowed any exceptions neither can they take up any
defence like that of ‘Act of God’ or ‘Act of Stranger’.

The rule of absolute liability, in simple words, can be defined as the rule of
strict liability minus the exceptions. In India, the rule of absolute liability
evolved in the case of MC Mehta v Union of India. This is one of the most
important landmark judgments which relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi
from industry. Due to the leakage, many people were affected. The Apex Court
then evolved the rule of absolute liability on the rule of strict liability and stated
that the defendant would be liable for the damage caused without considering
the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an

inherently dangerous or hazardous activity, and if any harm is caused to any
person due to any accident which occurred during carrying out such inherently
dangerous and hazardous activity, then the person who is carrying out such
activity will be held absolutely liable. The exception to the strict liability rule
also wouldn’t be considered. The rule laid down in the case of MC Mehta v
UOI was also followed by the Supreme Court while deciding the case of Bhopal
Gas Tragedy case. To ensure that victims of such accidents get quick relief
through insurance, the Indian Legislature passed the Public Liability Insurance
Act in the year 1991.

The Public Liability Insurance Act, 1991

This act was introduced with the aim of providing immediate relief to people
who are victims of accidents in which handling of hazardous substances is
involved. The main focus of the Act is to create a public liability insurance fund
which can be used to compensate the victims.

The Act states that any person who is carrying out inherently dangerous or
hazardous activities should have insurances and policies in place where he will
be insured against liability to provide compensation to the victims in case any
accident takes place, and some injury occurs. This liability is based on the
principle of “no fault liability” or in other words, the rule of strict liability and
absolute liability. Inherently dangerous or hazardous substance covers under its
scope any mixture, preparation or substance which because of its properties can
cause serious harm to human beings, animals, plants, property or the
environment. If any substance is inherently dangerous or hazardous due to its
handling also, then also the absolute liability of the defendant arises.

Concluding Remarks

The rule of strict liability and absolute liability can be seen as exceptions. A
person is made liable only when he is at fault. But the principle governing these
two rules is that a person can be made liable even without his fault. This is
known as the principle of “no fault liability.” Under these rules, the liable
person may not have done the act, but he’ll still be responsible for the damage
caused due to the acts. In the case of strict liability, there are some exceptions
where the defendant wouldn’t be made liable. But in the case of absolute
liability, no exceptions are provided to the defendant. The defendant will be
made liable under the strict liability rule no matter what.