Concept of Liability

Liability is the condition of being legally answerable for an act or omission. If a right is violated, the person who violated it incurs liability, and the law supplies a remedy (compensation, punishment or restoration).

• Salmond: liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong. It is the vinculum juris (bond of law) that links the wrongdoer to the remedy.

• Austin: liability is the condition of being exposed to a sanction as a consequence of a wrongful act or omission.

• Kelsen: liability is the sanction attaching to the delict; a person is liable when a sanction can be directed against him (a person is responsible if he is the one against whom the sanction is directed, whether or not he is the wrongdoer).

• Hart (Punishment and Responsibility, 1968): distinguishes four senses of responsibility: role-responsibility, causal-responsibility, liability-responsibility and capacity-responsibility.

• Hohfeld's 'liability' is a different, technical idea: the correlative of a power (a person who may have his legal position changed by another's act). Do not confuse it with Salmond's liability.

The foundation of liability: the maxim actus non facit reum nisi mens sit rea (an act does not make one guilty unless the mind be guilty). Under the traditional approach, liability requires (a) a wrongful act (or omission), and (b) a blameworthy state of mind, except where the law imposes strict liability.

• A wrong is an act contrary to the rule of right and justice. Wrongs are civil (redressed by compensation or restitution, as in tort or breach of contract) or criminal (redressed by punishment).

• Elements of a wrongful act: (1) an act or omission (the actus reus), (2) a mental element (mens rea: intention, recklessness, negligence), (3) damage or injury in the legal sense (not always required), and (4) a causal link between act and harm.

• Maxims: damnum sine injuria (damage without violation of a right is not actionable) and injuria sine damno (violation of a legal right is actionable even without loss) (see Topic 4).

• Mental states:

  • Intention: the foresight of an act or consequence together with the desire for it (Salmond: intention is the purpose or design with which an act is done). Oblique intention (virtual certainty of consequence) is relevant in murder: R v Woollin (1998).

  • Motive: the ultimate end or reason behind the intention. Motive is generally irrelevant to liability (Bradford Corporation v Pickles, 1895; Allen v Flood, 1898), though it can be relevant to sentencing and in some torts (malicious prosecution, nuisance, conspiracy).

  • Malice: malice in law (wrongful act done intentionally without just cause or excuse) versus malice in fact (actual ill will).

  • Negligence (Salmond's view): a state of mind, being inadvertence (subjective theory). Winfield and modern law treat it as a breach of duty (an objective standard of the reasonable man). Recklessness: conscious taking of an unjustified risk.

(a) Civil and criminal liability:

(b) Remedial and penal liability (Salmond):

• Penal liability: the wrongdoer is punished (imprisonment, fine); the law aims at deterrence or retribution.

• Remedial liability: the law merely enforces the right which has been violated, as when a debtor is compelled to pay, specific performance is ordered, or a trespasser is required to restore possession. The purpose is restitution.

• Salmond notes that criminal liability is penal, and civil liability may be penal (exemplary damages) or remedial.

(c) Vicarious liability: liability of one person for the wrong of another, arising from a relationship such as master and servant, principal and agent, partners, or employer and employee. The maxims are respondeat superior and qui facit per alium facit per se (he who does through another does through himself).

• Rationale: the employer controls the enterprise and benefits from it; the employer is in a better position to compensate and insure.

• Requirements: relationship, and a wrong committed in the course of employment (the Salmond test: an act authorised by the master, or an unauthorised mode of doing an authorised act). Lloyd v Grace, Smith & Co (1912): the employer liable for the solicitor's clerk's fraud; Limpus v London General Omnibus Co (1862) (the driver's unauthorised racing was an unauthorised mode of an authorised act).

• Employer and independent contractor: generally not liable for an independent contractor, with exceptions (non-delegable duties, hazardous activities).

• Vicarious liability of the State: under Article 300 of the Constitution, the Union and the State may sue and be sued in relation to their affairs 'in the like cases as the Dominion of India and the Provinces'. The old distinction between sovereign and non-sovereign functions (P. & O. Steam Navigation Co v Secretary of State for India, 1861) was applied in Kasturi Lal Ralia Ram Jain v State of UP (1965) (the State was not liable for the loss of gold seized by police, as the police acted in sovereign functions). State of Rajasthan v Vidyawati (1962) held the State liable for the negligence of a government driver, treating the State as an employer in the same way as a private person. The modern trend has moved to compensation for violation of fundamental rights as a public law remedy, independent of sovereign immunity (Rudul Sah v State of Bihar, 1983; Bhim Singh v State of J&K, 1985; Nilabati Behera v State of Orissa, 1993; D.K. Basu v State of West Bengal, 1997).

• Vicarious criminal liability: generally not recognised in the Penal Code except where a statute provides (for example, Section 141 of the Negotiable Instruments Act, 1881, for companies and persons in charge; Sunil Bharti Mittal v CBI, 2015).

(d) Strict and absolute liability: liability without proof of mens rea or negligence.

• Strict liability in tort: Rylands v Fletcher (1868): a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and is prima facie answerable for all damage which is the natural consequence of its escape. Exceptions: act of God, consent of plaintiff, plaintiff's default, act of a stranger, statutory authority, and common benefit.

• Absolute liability (India): M.C. Mehta v Union of India (1987) (the Oleum gas leak case, Delhi): the Supreme Court said the Rylands v Fletcher rule is too narrow for modern hazardous industries and laid down the rule of absolute liability: an enterprise engaged in hazardous or inherently dangerous activity is strictly and absolutely liable to compensate those harmed, and none of the exceptions applies. The enterprise's capacity to pay determines the quantum of damages (the 'deep pocket' principle: the larger and more prosperous the enterprise, the greater the amount of compensation).

• Union Carbide Corporation v Union of India (1989): the Bhopal Gas Tragedy settlement. The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 made the Union the sole representative of the victims. Related legislation: Public Liability Insurance Act, 1991, and National Green Tribunal Act, 2010 (Section 17: no-fault liability).

• Indian Council for Enviro-Legal Action v Union of India (1996) (Bichhri, Rajasthan): the polluter pays principle; Vellore Citizens' Welfare Forum v Union of India (1996): adopted the precautionary principle and polluter pays principle as part of Indian law and as part of sustainable development.

• Statutory strict liability: Workmen's Compensation (now Employees' Compensation Act, 1923), the Motor Vehicles Act (no-fault liability, Section 140, and Section 164), and the Consumer Protection Act (product liability under the 2019 Act).

• Strict liability in criminal law: Sherras v De Rutzen (1895) (presumption of mens rea may be displaced); R v Prince (1875); State of Maharashtra v Mayer Hans George (1965) (offences under FERA/customs: mens rea not required where the statute so requires); Nathulal v State of MP (1966) (the Court reaffirms the presumption of mens rea); Sweet v Parsley (1970) (presumption of mens rea is strong in 'truly criminal' offences).

(e) Joint and several liability, contributory liability, and liability of the corporation (see Topic 5).

• Donoghue v Stevenson (1932): the neighbour principle; a manufacturer owes a duty of care to the ultimate consumer.

• Elements of the tort of negligence: duty of care, breach, and damage caused by the breach, which is not too remote.

• Bolton v Stone (1951): a risk which is very small does not require precautions; Blyth v Birmingham Waterworks Co (1856): negligence is the omission to do something which a reasonable man would do.

• Remoteness: Re Polemis (1921) (directness test) replaced by The Wagon Mound (No. 1) (1961) (reasonable foreseeability).

• Res ipsa loquitur: the thing speaks for itself (Byrne v Boulton, 1863; Scott v London & St Katherine Docks, 1865).

• Criminal negligence in India (medical negligence): Jacob Mathew v State of Punjab (2005): for a criminal prosecution of a doctor, gross negligence or recklessness must be shown, not mere lack of care; civil negligence is the standard of the Bolam test (Bolam v Friern Hospital, 1957), accepted in India.

• Indian Consumer Protection Act and medical negligence: Indian Medical Association v V.P. Shantha (1995): medical services come within the Consumer Protection Act, 1986.

• Insanity: M'Naghten's case (1843): the accused must show that at the time of the act he was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act or that it was wrong. India: Section 84 IPC (now Section 22 BNS).

• Infancy: a child under seven is doli incapax (Section 82 IPC; Section 20 BNS); between seven and twelve it depends on maturity (Section 83 IPC; Section 21 BNS). Juvenile Justice (Care and Protection of Children) Act, 2015.

• Necessity: R v Dudley and Stephens (1884): necessity is no defence to murder.

• Self-defence, consent, accident, mistake of fact (and not of law), duress, and act of God (in tort).

• Statutory exceptions in the Penal Code (General Exceptions, Chapter IV IPC; Chapter III BNS).

• Note: the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam (2023) came into force on 1 July 2024, replacing the IPC, CrPC and Evidence Act; the exam may use either set of section numbers during the transition.

Salmond's view: punishment is an evil inflicted on the wrongdoer for his wrong; deterrence is the primary purpose, with retribution, prevention and reform as secondary.

Indian cases on punishment:

• Capital punishment: Jagmohan Singh v State of UP (1973) (the death penalty is constitutional); Rajendra Prasad v State of UP (1979); Bachan Singh v State of Punjab (1980) (the Constitution Bench upheld constitutionality of the death penalty and laid down the 'rarest of rare' doctrine, requiring a balance of aggravating and mitigating circumstances); Machhi Singh v State of Punjab (1983) (guidelines); Mithu v State of Punjab (1983) (the mandatory death penalty under Section 303 IPC was struck down); Shatrughan Chauhan v Union of India (2014) (undue delay in disposal of mercy petitions is a ground for commutation). The 262nd Law Commission Report (2015) recommended abolition of the death penalty for all crimes other than terrorism-related offences.

• Reformative approach: Mohd. Giasuddin v State of Andhra Pradesh (1977) (Justice Krishna Iyer, the need to humanise punishment and use reform); the Probation of Offenders Act, 1958; Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009) (sentencing in death cases must consider the possibility of reform).

• Beccaria's On Crimes and Punishments (1764) opposed torture and the death penalty and favoured certain, swift punishment.