Strict and Absolute Liability

As a general rule, liability in tort depends on fault (intention or negligence). Strict liability is liability for damage even without fault, subject to certain exceptions. Absolute liability (an Indian innovation) is liability without any exception.

Facts: The defendants employed independent contractors to build a reservoir on their land. The contractors discovered old, unused mine shafts under the site that connected to the plaintiff's coal mine, but did not seal them. When the reservoir filled, water burst through the shafts and flooded the plaintiff's mine. The contractors were negligent but the defendants were not personally at fault.

Held: The Court of Exchequer Chamber (Blackburn J) laid down the rule: the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it 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. The House of Lords (Lord Cairns) affirmed with an added qualification that the use of land must be non-natural.

1. Dangerous thing: something likely to do mischief if it escapes (water, gas, electricity, fire, explosives, noxious fumes, chemicals, rusty wire, vibrations, etc.). (Rylands: water; Miles v Forest Granite (explosives); Hale v Jennings (a chair-o-plane in a fair; Attorney-General v Corke (caravan dwellers)); Crowhurst v Amersham Burial Board (yew tree poisonous to cattle).)

2. Escape: from a place where the defendant has occupation or control to a place outside his control. Read v Lyons (1947): the plaintiff, an inspector at a munitions factory, was injured by a shell explosion within the premises; no escape, no strict liability.

3. Non-natural use of land: a special use bringing with it increased danger to others, not the ordinary use of land or such use as is proper for the general benefit of the community (Rickards v Lothian, a water tap in the upper floor overflowed by a malicious act; ordinary domestic use). Industrial storage of chemicals (Cambridge Water) can be non-natural; a water supply in a building is natural; Transco v Stockport MBC (2003) held that a pipe supplying water to a block of flats was an ordinary use.

4. Damage: to the plaintiff's property (damage to land and chattels). The House of Lords in Transco doubted claims for personal injuries; the usual rule is that the rule concerns property damage (Indian cases have accepted personal injuries).

1. Plaintiff's own default (Ponting v Noakes: a horse that reached over the boundary and ate yew leaves).

2. Act of God (Nichols v Marsland).

3. Act of a stranger (an independent third party beyond the defendant's control: Box v Jubb, the overflow caused by a stranger; Rickards v Lothian).

4. Consent of the plaintiff / common benefit (Carstairs v Taylor: water leaked from the upstairs rain-water box of a building shared by tenants).

5. Statutory authority (Green v Chelsea Waterworks: a main pipe laid under statutory duty burst).

6. (Some authors also treat natural user as part of the definition and not as an exception.)

• Cambridge Water Co v Eastern Counties Leather (1994): foreseeability of the kind of damage is necessary; the rule is an extension of nuisance.

• Transco v Stockport MBC (2003): the rule has not been abolished but is confined; the user must be extraordinary and unusual; personal injury not recoverable; a majority of the House left the matter of absorption into negligence undecided.

• Application of Rylands in India: Indian courts applied the strict liability rule in many cases but found it inadequate for modern industrial hazards, because (i) the exceptions (Act of God, act of stranger) could allow powerful enterprises to avoid liability, and (ii) it covers only property damage and "escape".

• M.C. Mehta v Union of India (1987) (Oleum Gas Leak case, Shriram Foods and Fertilizers): after a leak of oleum gas from a Delhi factory caused the death of one person and injuries to many, a Constitution Bench (Bhagwati CJ) held that an enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and of those living around is strictly and absolutely liable to compensate for harm. The Court said it was not bound by the Rylands exceptions, because the law must evolve to meet changing social conditions (Article 32 powers). Key features of the rule of absolute liability:

  • applies to hazardous or inherently dangerous activities;

  • no exceptions (Act of God, stranger's act, plaintiff's default, consent are not available);

  • compensation must be correlated to the magnitude and capacity of the enterprise (the "deep pocket" principle), so that it has a deterrent effect;

  • the enterprise has a non-delegable duty to the community to ensure that no harm results, and must conduct the activity with the highest standards of safety;

  • no need to show escape from the premises: harm within or outside the premises is covered.

• Union Carbide Corporation v Union of India (Bhopal Gas Leak Disaster, 1989): the Supreme Court approved the settlement of US \$470 million; Charan Lal Sahu v UOI (1990) upheld the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985 (the State as parens patriae); the 1991 review reaffirmed the settlement while directing that the insurance for victims be provided and that the criminal proceedings be revived.

• Indian Council for Enviro-Legal Action v Union of India (1996) (Bichhri, Rajasthan: the sludge from chemical factories): applied absolute liability and the polluter pays principle; the polluters were required to pay for remedial costs.

• Vellore Citizens' Welfare Forum v Union of India (1996): (tannery pollution): adopted the precautionary principle, the polluter pays principle and sustainable development as part of Indian environmental law, based on Articles 21, 47, 48A and 51A(g).

• Bhopal-linked statutory regimes: the Public Liability Insurance Act 1991 (compulsory insurance for owners handling hazardous substances; no-fault liability to pay relief for death, injury and property damage; Environmental Relief Fund); the National Green Tribunal Act 2010 (Section 17: the Tribunal can award relief and compensation on a no-fault basis for damage from hazardous substances; also polluter pays in NGT decisions such as the Ganga cases); the Environment (Protection) Act 1986.

• Other illustrations: M.P. Electricity Board v Shail Kumari (2002): strict liability for the death by electrocution from a live wire fallen on the road; Kaushnuma Begum v New India Assurance (2001): strict liability principles in motor accidents; Section 140, MVA (no-fault liability).

• Rylands v Fletcher: non-natural use, escape required, exceptions available, property damage primarily, not necessarily hazardous industry.

• M.C. Mehta: hazardous industry, no escape required (also applies within premises), no exceptions, compensation as per capacity, developed for India's conditions through Article 21 and 32.

• Animals: the scienter rule (liability for harm by a dangerous animal (ferae naturae) or by an animal known to be dangerous); the Cattle Trespass Act 1871 (in India); in England, the Animals Act 1971.

• Employees' Compensation Act 1923 (injuries during employment, no-fault).

• Product liability under the Consumer Protection Act 2019 (Chapter VI).

• Vicarious liability (Topic 2).

• Fire: liability for the spread of fire arising from negligence (the Fires Prevention (Metropolis) Act 1774 protects against accidental fires).

Expect: Rylands facts and ingredients; who decided what (Blackburn J vs Lord Cairns: "non-natural use"); Read v Lyons (escape); Cambridge Water (foreseeability); Transco; M.C. Mehta (1987) and the features of absolute liability; Bhopal; the PLIA 1991 and NGT Act 2010, Section 17; Vellore Citizens; "which defence is NOT available in absolute liability"; Assertion–Reason on strict and absolute liability.