Strict and Absolute Liability

Question 0

essentials for application of Strict liability rule

Answer 0

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. It must be non-natural use of land.

Question 1

Rylands vs. Fletcher (1868)

Answer 1

Facts: The defendant got a reservoir constructed through an independent contractor over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractor failed to observe and so, did not block them.
When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on huge adjoining land. The defendant did not know of the shafts and had not been negligent although the independent contractors had been.

Held: The rule of “STRICT LIABILITY” was propounded by BLACKBURN J. as follows;

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 consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs’ default; or perhaps that the escape was the consequence of vis major, or the act of god.

The liability arises not because there was any fault or negligence on the part of a person, but because he kept some dangerous thing on his land and the same has escaped from there and caused damage.

To the above rule, another important qualification was made by house of chambers; it was held that for liability under the rule, the use of land should be non-natural as was the position in Rylands case.

Question 2

DANGEROUS THING:

Answer 2

A thing likely to do mischief if it escapes.
In Rylands case it was a large body of water.
The rule has also been applied to gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, and rusty wire.

Question 3

ESCAPE

Answer 3

For this rule to apply it is also necessary that the thing causing the damage must escape to the area outside the occupation and control of the defendant.

Question 4

Read vs. Lyons and Co. (1947)

Answer 4

Facts: The plaintiff was an employee in the defendant’s ammunition factory. While she was performing her duties inside the defendant’s premises, a shell which was being manufactured there, exploded whereby she was injured. There was no evidence of negligence on the part of the defendants.

Held: even though the shell was a dangerous thing, the defendants were not liable because there was no escape of the thing outside the defendants premises and therefore, the rule of strict liability did not apply.

Question 5

NON-NATURAL USE OF LAND:

Answer 5

In Rylands case, the water Collected in the reservoir in such large quantity was held to be non natural use of land. Keeping water for ordinary domestic purposes is natural use.

For the use to be non-natural, it must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of community.

Question 6

SOCHACKI VS. SAS (1947)

Answer 6

Fire in a grate is an ordinary, natural, proper, everyday use of fire place in a room. If this fire spreads to the adjoining premises, the liability under the he Rylands vs. Fletcher rule does not arise.

Question 7

NOBLE VS. HARRISON (1926)

Answer 7

Facts: The branch of a non-poisonous tree growing on the defendant’s land, which overhung on the highway, suddenly broke and fell on the plaintiff’s vehicle passing along the highway. The branch had broken off due to some latent defect.

Held: Growing of non poisonous trees is not non natural use of land. Therefore the plaintiff is not liable.

Question 8

CROWHURST VS. AMERSHAM BURIAL BOARD (1878)

Answer 8

Growing of a poisonous tree is non natural use land and if the animal on the neighbour’s land nibbles the leaves of such a tree and dies the defendant will be liable under the rule.

Question 9

ACT DONE BY AN INDEPENDENT CONTRACTOR

Answer 9

Generally, an employer is not liable for the wrongful act done by an independent contractor. However, it is no defence to the application of this rule that the act causing the damage had been done by an independent contractor.

Question 10

T.C. Balakrishnan Menon vs. T.R. Subramanian (1968)

Answer 10

Facts: an explosive made out of a coconut shell filled with explosive substance, instead of rising into the sky and exploding there, ran at a tangent, fell amidst the crowd and exploded, causing serious injuries to the respondent.

Issue: Whether the appellants who had hired an independent contractor to attend to the exhibition of fireworks, would be liable.

Held: “ The minnal gundu is an explosive and is therefore an “extra hazardous” object, and persons who use such an object, which in its very nature, involves special danger to others, must be liable for the negligence of the heir independent contractor. The duty to keep such a substance without causing injury to others is non dele gable duty: the appellants could not have escaped liability fro the breach of such a duty by engaging an independent contractor.”

Question 11

Exceptions to strict liability rule.

Answer 11

1. Plaintiff’s own default.
   
   2. Act of god.
   3. Consent of the plaintiff.
   4. Act of third party.
   5. Statutory authority.

Question 12

PLAINTIFF’s OWN DEFAULT

Answer 12

Accepted as a defence in Rylands case itself.

If the plaintiff suffers damage by his own intrusion into the defendant’s own property, he cannot complain for the damage so caused.

Question 13

PONTING VS. NOAKES (1849)

Answer 13

The plaintiffs horse intruded into the defendants land and died after having nibbled the leaves of a poisonous tree there.
The defendant was held not liable because damage would not have occurred but for the horse’s own intrusion into the defendant’s land.

The strict rule did not apply for another reason also; that there was no escape.

Question 14

EASTERN AND SOUTH AFRICAN TELEGRAPH CO. LTD. VS. CAPETOWN TRAMWAYS CO. (1902)

Answer 14

Facts: the plaintiff’s submarine cables were disturbed by escape of electric current from the defendants tramways. It was found that the damage was due to the unusual sensitiveness of the he plaintiffs apparatus and such damage won’t occur to a person carrying on ordinary business.

Held: When the damage to the plaintiffs property is caused not so much by the escape of the things collected by the defendant as by the unusual sensitiveness of the plaintiffs property itself, the plaintiff cannot recover anything.

A man cannot increase the liabilities of his neighbour by applying his own property to special use, whether for business or for pleasure.

Question 15

ACT OF GOD / VIS MAJOR

Answer 15

Considered to be good defence in Rylands vs. Fletcher case.

Act of god has been defined as;
Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility.

Question 16

NICHOLS VS. MARSLAND (1876)

Answer 16

Facts: the defendant created artificial lakes on his land by damming up a natural stream. That year there was an extraordinary rainfall, heaviest in the human memory, by which the streams and the lakes swelled so much that the embankments constructed for the artificial lakes, which were sufficiently strong for an ordinary rainfall, gave way and the rush of water down stream washed away the plaintiff’s four bridges.

There was found to be no negligence on the part of the defendants. It was held that the defendants were not liable under the rule of strict liability because the accident in this case had been caused by act of god.

Question 17

S.K. Shangrung Lamkang vs. State of Manipur (2008)

Answer 17

Facts: Two persons died due to electrocution causes by a falling of a high tension electric wire from its pole while they were proceeding riding on a scooter.

The respondents contended that the fall of the electric wire was due to the lightening storm resulting in breaking of a tension disc insulator and not due to their negligence.

Held: since the management of supply of electricity was a hazardous or inherently dangerous activity, when harm was caused to anyone on account of any cause in the operation of the activity, the respondents, who were responsible in respect to the said activity would be strictly and absolutely liable to compensate those who were harmed in the course of operation of the said activity.
The risk involved in the management of supply of electricity was surely great and a high degree of care as expected of hath respondents, inasmuch as they ought to have appreciated the possibility of falling of the electric wire from its pole as a result of storm or lightening.

Question 18

M.P. ELECTRICITY BOARD VS. SHAIL KUMAR ( 2002 )

Answer 18

One Joginder Singh was riding on his bicycle while returning from his factory. A snapped live elope citric wire was lying on the road. There was rain and the road was inundated with water. The cyclist could not notice the electric wire and as he came in contact with the same, he died instantaneously due to electrocution.

Held: The rule of strict liability was applied and it was held that the Board had statutory duty to supply electricity on the area. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the electric supplier shall be liable for the same.

Authorities manning such dangerous commodities have extra duty to chalk out such measures to prevent such mishaps.

The defence that the snapping of wire was due to the act of the go stranger who might have tried to pilfer the electricity was rejected. Such act should have been foreseen by the board and prevented.

If the accident was caused by the unforeseeable act of a stranger, the rule of strict liability did not apply.

The court also explained the nature of strict liability and said; “ it differs from the liability which arises on account of negligence or fault in this way, i.e., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defence did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed but such consideration is not relevant in aliases of strict liability when the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

Question 19

CONSENT OF THE PLAINTIFF

Answer 19

In case of volenti non fit injuria, i.e., where that plaintiff has consented to the accumulation of the dangerous thing on the defendant’s land, the liability under the Rylands vs Fletcher rule does not arise.
Such a consent is implied where the source of danger is for the common benefit of both the plaintiff and the defendant.

Question 20

CARSTAIR VS. TAYLOR (1871)

Answer 20

The plaintiff hired the ground floor of the building from the defendant. The upper floor of the building was occupied by the defendant himself. Water stored on the upper floor leaked without any negligence on the part of the defendant and injured the plaintiffs goods on the ground floor. As the water had been stored for the benefit of both the plaintiff and the defendant, the defendant was held not liable.

Question 21

ACT OF THIRD PARTY

Answer 21

If the harm has been caused due to the act of the stranger, who is neither the defendant’s servant nor the defendant has any control over him, the defendant will not be liable under this rule.

Question 22

BOX VS. JABB (1879)

Answer 22

The overflow of the defendants reservoir was caused by the blocking of a drain by strangers, the defendant was held not liable for that.

Question 23

NORTHWESTERN UTILITIES VS. LONDON GUARANTEE AND ACCIDENT CO. (1936)

Answer 23

The appellants were a public utility company carrying gas at a high pressure. During the construction of sewer by the city authorities, a gad pipe leaked, resulting in fire which destroyed the hotel insured by the respondents. Since the operations of the he city authorities were conspicuous and the danger to the gas pipelines could have been reasonably foreseen and guarded against, the failure to do that was considered to be a negligence on the go part of the appellants and they were held liable.

Question 24

STATE OF J &K vs. Mohd. Iqbal (2007)

Answer 24

Two children were electrocuted near an electric transformer installed at the bus stand, when they were coming towards their dwelling place in a nearby village.

Denying there liability the appellant argued that the electric transformer was properly fenced and that the accident could not have occurred unless the victims fiddle with it and that the death were caused because of their own act.

Holding the appellants liable, the court said;

The state cannot be conceded any defence of attributing mischief to the users of the road for electrocution because of short circuit.this is particularly so in a case of minors, who under law are presumed to be disabled of taking care of he themselves. The transmission of electric energy by the state carries with it added responsibility of ensuring that the carriage of such electric energy does not cause any damage to anyone and that all the electric lines and areas through which the energy is to pass, are not prone to damage to the users of public road or areas in and around such areas.

Question 25

STATUTORY AUTHORITY

Answer 25

An act done under the authority of a statute is a defence to an action for tort. It cannot however be pleaded in cases of negligence.

Question 26

GREEN VS. CHELSEA WATERWORKS CO. (1894)

Answer 26

The defendant Co. had a statutory duty to maintain continuos supply of water. A main belonging to the company burst without any negligence on its part, as a consequence of which the plaintiff’s premises were flooded with water. It was held that the company was not liable as the company was engaged in performing a statutory duty.

Question 27

POSITION IN INDIA

Answer 27

The rule of strict liability is applicable as much in India as in England. There has however been recognition of some deviation both ways, i.e., in the extension Of the scope of the rule of strict liability as well as a limitation of its scope.

The liability without fault has been recognised in case of motor vehicle accidents.
The Motor Vehicles Act, 1938 recognises liability without fault to a limited extent.
Under the act compensation can be claimed even without pleading or establishing any fault on part of the owner or the driver of the vehicle. The claim for compensation shall not be defeated by reason of any wrongful neglect, neglect or default of the accident victim, nor shall the compensation payable be reduced on account of any responsibility in the accident of the accident victim. It implies that the defence of contributory negligence cannot be pleaded in case of an action for no fault liability.

In respect of storage of large quantity of water for or agricultural purposes, the courts in IndiaHave recognised an exception to the rule of strict liability. The reason for the exception is that the storing of such water may be necessary according to the peculiar indian conditions.

Question 28

MADRAS RAILWAY CO. VS. ZAMINDAR (1974)

Answer 28

There was escape of water as a consequence of bursting of two ancient tanks situated on the respondent’s zamindari. These tanks which had been in existence since ages, existed not merely for the benefit of the defendant alone, but for the benefit of thousands of his ryots. The escaping water caused damage to the appellants’ property and three of the railway bridges were destroyed.

Held: under these circumstances, the rule in Rylands vs. Fletcher was not applicable and as the zamindar was not negligent, he was not liable for the damage caused by the overflowing water.

Question 29

Absolute liability

M.C. MEHTA VS. UNION OF INDIA (1987)

Answer 29

On 4th and 6th December 1985, there was leakage of oleum gas from one of the units of Shriram Foods and Fertilizers, in the city of Delhi. As a consequence of this leakage, it was alleged that one advocate practising on Tis Hazari Court had died and several others were affected by the same.

The action was brought through a writ petition under Article 32 of the constitution by way of PIL.
The court had in mind that within a period of one year this was a second case of large scale leakage of deadly gas in India, as a year earlier due to the leakage of MIC gas from the Union Carbide plant in Bhopal more than 3000 people had died and lacs of others were subjected to serious diseases of various kinds.

Held: The SC took a bold decision holding that it was not bound to follow the 19th century rule of English law, and it could evolve a rule suitable to e social and economic conditions prevailing in India at the present day.

It evolved the rule of Absolute Liability in preference to Strict Liability rule. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands vs. Fletcher.

The rule was propounded by Bhagwati C.J.

He said; 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. The enterprise must be held to under an obligation that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to pay compensation for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

Court gave two reasons justifying this rule:

1. That the enterprise carrying on such hazardous and inherently dangerous activity for private profit has a social obligation to compensate those suffering therefrom, and it should absorb such loss as an item of overheads.
2. The enterprise alone has the resources to discover and guard against such hazards and dangers.

The court also laid down that the measure of compensation payable should be correlated to the magnitude and capacity of the enterprise, so he hat the same can have deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous and inherently dangerous activity by the enterprise.

Question 30

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION VS. UNION OF INDIA (1996)

Answer 30

Facts: there was environmental pollution caused in Bichhri village and other adjacent villages, on account of production of H acid and the discharges from the sulphuric acid plant of the respondents.

A writ petition was filed before SC by way of social action litigation on behalf of the villagers affected by the pollution resulting in invasion on their right to life, enshrined in Article 21.

Held : Writ petition was maintainable as the SC had power and duty to intervene and protect the right to life of citizens.
On account of their continuous, persistent and insolent violations of law, the respondent industries, being characterised as rogue industries, which had inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources, and their entire environment were ordered to be closed down.

The above mentioned liability was held to be based on the polluter pays principle apart from also the principle of absolute liability recognised in Oleum Gas Leak Case.