strict liability

Strict Liability

To make one liable under law of torts one must prove violation of legal duty due to:

fault, negligence or wrongful intent of the defendant.

If there is no fault, or negligence or wrongful intent on the part of the defendant, then he will escape liability.

08/04/23 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA 2

Doctrine of strict liability is an exception to this general rule.

This doctrine makes some persons responsible for damages, their actions or products cause, regardless of any “fault” on their part.


Strict liability often applies when people engage in inherently hazardous activities, such as doing ‘blasting’ in a city, or keeping wild circus animals.

If the blasting damages you-no matter how careful the blasting was – it is liable for the injury. Similarly if the animals escape and injure someone, the fact that the circus used the world’s strongest cages and the highest standard of care imaginable will not let it get off the hook.[1]

[1] http://law.freeadvice.com/general_practice/legal_remedies/strict_liabilty.htm


This doctrine was given by Justice Blackburn in the famous case of:

Rylands v. Fletcher

In 1860, John Rylands contemplated the new reservoir constructed to supply water to the Ainsworth Mill. He did not know that he had triggered a chain of events which was to have a profound, if chaotic, effect on the development of the common law of tort. The litigation resulting from the escape of water from the reservoir via old mine shafts to Thomas Fletcher's mines progressed sedately through the courts from 1861 until 1868.


Facts

Rylands and Fletcher were neighbours. Fletcher was running a coal mine on lease. Rylands desired to construct a water reservoir on his land for storing water and supplying it to the Ainsworth Mill. R gave this job to an independent contractor.

While working on the water reservoir, the workmen belonging to the independent contractor came across some old disused shafts. They did not properly pack those ones.


After the completion of the work, when water was filled in the reservoir, those improperly packed old disused shafts succumbed to the pressure and water percolated through to the coal mine and Fletcher could not carry any work, thus suffered losses. He went to the court for redressal.


A special case was stated by an arbitrator for the Court of Exchequer. The arbitrator found that the contractors, but not the defendants, had been negligent. On that basis, the question for the Court of Exchequer was whether the plaintiff was entitled to recover damages against the defendants.

The Court of the Exchequer, by a majority (Pollock CB and Martin B), decided in favour of the defendants. Martin B held that in such a case there could be no liability without negligence, because otherwise the defendant would be an insurer, which, in his view, would be contrary to legal analogy and principle.

Baron Bramwell dissented, holding that the defendant should be liable on the basis of strict liability.


The case went on appeal to the Court of Exchequer Chamber, where Blackburn J delivered the judgment of the Court, finding for the plaintiff Mr. Fletcher. Despite the absence of proof of negligence on the part of Mr. Rylands, he was held liable according to Blackburn J's classic principle:

“We think that the true rule of law is, that a 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 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 further observed:

“… it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, … but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property … he should at his peril keep it there … or answer for the natural and anticipated consequences.”


The defendants appealed in the House of Lords and the plaintiff was again successful. The House of Lords aptly observed:

“If a person brings or accumulates on his land anything which, if it should escape may cause damage to his neighbours he does so at his peril. If it does escape and cause damage he is responsible, however, careful he may have been, and whatever precaution he may have to prevent the damage”.


Many jurists applauded no fault liability as a method for imposing losses on superior risk bearers.

Prof. Clarence Morris

“…one who should know that his activity, even though carefully prosecuted, may harm others, and should treat this harm as a cost of his activity. This cost item will influence pricing, and will be passed on to consumer spread so widely that no one will be seriously affected”.

(See, Prof. Clarence Morris, “Hazardous Enterprises and Risk Bearing Capacity” 61 Yale L.J. 1172 (1952))


Read v Lyons, [1947] AC 157 at p. 173 (HL)

Lord Macmillan stated that 'the doctrine of Rylands v Fletcher … derives from a conception of mutual duties of adjoining landowners and its congeners are trespass and nuisance'.

Also, in Hale v Jennings Brothers, [1938] 1 ALL ER 579 at p. 583

Scott LJ referred to the rule as 'a broad principle … that the liability attaches because of the occupier of the land bringing onto the land something which is likely to do damage if it escapes'.


In Blackburn J's formulation, the rule applies to bringing onto the defendant's land things likely to do mischief if they escape, which have been described as 'dangerous things'.


Read v Lyons, [1947] AC 157 at 173 (HL)

Viscount Simon aptly put the essential conditions to make one liable under doctrine of strict liability as follows:

“Now the strict liability recognised by this House in Rylands v. Fletcher is conditioned by two elements which I may call the condition of ‘escape’ from the land of something likely to do mischief if it escapes, and the condition of “non-natural use of land”.


Defendant would be liable only when there is escape of the object from land of which he is in occupation or control.

Read v Lyons, [1947] AC 157 at 173 (HL)

Appellant was employed as an Inspector of Ammunition. She was injured by the explosion of a shell while she was on respondent’s premises in the performance of her duties. Further there was no proof of negligence on the part of the defendant.

The Court held that the injury was caused on the premises of the defendants i.e. not outside, thus no escape thereby, the respondents were not liable.


Illustrations of natural use of land can be: storage of water in reservoir for mill or use, storage of one or two gas cylinder for domestic use, electricity connection to light the house, lighting an oil lamp in house etc.

Sochacki v. Sas, (1947) 1 All ER 344

B, who was a lodger in A’s house, lit a fire in his room and went out. While he was out, his room caught fire may be due to jumping of a spark. It spread and damaged A’s property in the rest of the house.

There was no evidence of negligence on the part of B. It was held that B was not liable under Rylands v. Fletcher since his use of the fire in his grate was an ordinary, natural, proper, everyday use of a fire place in a room.


[Hostel Rooms at Cardiff- Students were not allowed to lit lamps as the hostel rooms had used wood. In such case it may amount to non natural use of land.

Or

lighting cigarette in the petrol pump or preparing food thereby may also amount to non natural use of land.]


T. C. Balkrishna Menon v. T.R. Subramanian, AIR 1968 Mad. 151

The Court held that the use of explosives in an open field on the occasion of festival is a “non-natural” user of land.


State of Punjab v. Modern Cultivators, AIR 1965 SC 17

Due to overflow of water from a canal, damage was done to plaintiff’s property. The Supreme Court held that use of land for construction of a canal system is a normal use and thus not non natural use of land.


Mukesh Textile Mills v. Subramanya Sastry AIR 1987 Kar. 87

A was owner of a sugar factory. B owned land adjacent to A’s sugar factory. A stored quantity of molasses and it escaped to B’s land and damaged his crop. B sued A.

Collecting molasses in large quantities was held by the Court to be non natural use of land and if a person collected such things on his land and escaped to neighbours land, he was liable.


The rule has been applied in the following cases:

Water, Charing Cross Electricity Supply Co. v. Hydraulic Power Co [1914] 3 KB 772

Fire, Jones v. Ffestiniog Railway (1868) LR 3 QB 733

A motor vehicle, Musgrove v. Pandelis [1919] 2 KB 43, Perry v. Kendricks Transport Co [1956] 1 Weekly Law Reports 85 CA

Gas, Goodbody v. Poplar BC [1915] 84 LJ KB 1230


Electricity, National Telephone Co v. Baker [1893] 2 Ch 186

Poison, West v. Bristol Tramways Co [1908] 2 KB 14

Paraffin, Mulholland and Tedd Ltd v. Baker [1939] 3 All England Law Reports 253

A blow lamp, [1957] 1 QB 496, CA

Colliery spoil tipped on a hillside without drainage provision A-G v. Cory Bros [1921] 1 AC 521

Raw polystyrene LMS International Ltd v. Styrene Packaging and Insulation Ltd. [2005] EWHC 2065 (TCC)


However, the rule has been held inapplicable to:

An aeroplane, Fosbroke-Hobbes v. Airwork Ltd [1937] 1 All England Law Reports 108

An oil can, Wray v. Essex CC [1936] 3 All England Law Reports 97

A boiler without a safety valve Ball v. LCC [1949] 2 KB 159 and

Water piped to a block of flats, Transco plc v. Stockport MBC [2004] 1 All England Law Reports 589


In the following circumstances, the rule of strict liability is not applicable.

Plaintiff’s consent; Plaintiff’s own default; Act of third party; Act of God/Vis Major; Statutory Authority.


1. Plaintiff’s Consent

Where the artificial work is maintained with the plaintiff’s consent and for the common benefit of the defendant, this rule does not apply.

Balakh Glass Emporium v. United India Insurance Company Ltd., AIR 1993 Ker 342

The defendant was held not liable when water escaped from upper floor and damaged the lower floor because there was an implied consent by occupier of lower floor to the normal use of water by the occupier of the upper floor.

[water and fire- landlord and tenant relationship]


Carstairs v. Taylor, (1871) LR 6 Ex. 217

Taylor, the landlord, rented his upper story to the plaintiff. Taylor, for the benefit of both maintained a rain water box. Some rats gnawed the water box which resulted into escape of water and damaging the goods of the plaintiff. The defendant was held not liable as there was plaintiff’s consent and no negligence on the part of the defendant.


Where escape is caused by the act of the third party over whom the defendant has no control, he will not be liable.

Rickards v. Lothian, (1913) AC 263

The plaintiff was tenant of the defendant on the second floor. On the fourth floor of defendant’s building a third party maliciously plugged up the waste pipes and opened the water taps. As a result, the plaintiff’s goods were damaged by the flow of water from the lavatory on the fourth floor.

The defendant was held not liable as it was an act of third party beyond his control and no proof of negligence on his part.


Ryan v. Young, (1938) 1 All ER 522

Driver of a lorry of the defendant died while driving the lorry which thereon ran on and injured the plaintiff. The driver before dying appeared to be in good health. Further defendant was not under duty to get the driver medically examined. There was no fault in the lorry.

The defendant was held not liable.


State of Mysore v. Ramchandra, AIR 1972 Bom 92

Constructing a water storage to increase the supply of water is natural use of land and a permitted act, subject to application of emergency measure. One such measure is to make arrangement for outlet of water in case of emergency. It was not done in the present case which resulted into the damage to the property of one and great loss thereby.

The defence of Act of God was not allowed.


Where the defendant is authorised or required under the law to accumulate, keep or collect the dangerous things which escape or cause mischief and injures the plaintiff, the rule of strict liability does not apply.


Green v. Chelsea Waterworks, (1894) 70 LT 547

The defendants were authorised by statute to store water for the purposes of supply to the city. Owing to some accidental cause the water escaped and caused injury to the plaintiff.

The Court held that where the accumulation of water by the defendant was not for their own purpose, and where they had been authorised by statute to accumulate and keep it, they would not be responsible for any escape, unless it is result of the negligent act of the defendants.


Exceptions or Limitation on doctrine of strict liability

As Winfield remarks, because of the various limitations and exceptions to the rule "we have virtually reached the position where a defendant will not be considered liable when he would not be liable according to the ordinary principles of negligence".

This repudiation of the principle in Rylands vs. Fletcher (supra) is contrary to the modern judicial philosophy of social justice.

(See, Winfield and Jolowicz, Tort, (Sweet & Maxwell: 13th Edition, 1989) at p.443)


The injustice may clearly be illustrated by the case of Pearson vs. North Western Gas Board (1968) 2 All ER 669.

In that case the plaintiff was seriously injured in an explosion of gas, which also destroyed their home, killed her husband. Her action in Court failed, in view of the decision in Dunne vs. North Western Gas Board (1964) 2 QB 806.


Dunne vs. North Western Gas Board (1964) 2 QB 806.

The Plaintiff, a girl of sixteen along with other members got injured when an explosion blew her off her cycle. The explosions which caused these accidents arose from a gas main and travelled along a sewer becoming mixed with air and so becoming highly inflammable and explosive.

She sought judgment in her favour on the ground that the Gas Board were in breach of duty owed by them under the rule in Rylands v. Fletcher.


The Court while holding the Gas Board not liable, observed:

“[Gas] escaped and did damage without any negligence on the part of the defendants or of anyone else. It is not a case of an independent contractor having been negligent as was the case in Rylands v. Fletcher, which brought about a decision in wide terms imposing liability on a landowner for things which escaped from his land, whereas in the present time the defendant’s liability in that case could simply have been placed on the defendant’s failure of duty to take reasonable care to protect the adjacent mines which were known to be there or which ought to have been discovered with reasonable care, and in respect of such a duty it is no answer to say that the failure was that of an independent

contractor”.


The Court further observed that “the water in that case escaped through negligence and the occupier’s duty to his neighbour was not performed. The present case is, therefore, on its facts different from Rylands v. Fletcher in that respect and in all the circumstances it scarcely seems accurate to hold that this nationalised industry collects and distributes gas for its own purposes”.


Thus the decline of the rule in Rylands vs. Fletcher (supra) left the individual injured by the activities of industrial society virtually without adequate protection.

An attempt to provide solace to the people, in England, in 1978, the Royal Commission on Civil Liability and Personal Injury headed by Pearson (also popularly referred as Pearson Committee, 1973) was appointed.


It recommended the introduction of strict liability in a number of circumstances such as no fault insurance scheme for road traffic and industrial accidents, similar to the subsequent New Zealand Accident Compensation Corporation, and a scheme of strict liability for consumer protection for defective products, including drugs, a proposal especially relevant to the thalidomide tragedy.

(For further discussion, refer to Beverley Lang, The Employers Liability (Defective Equipment) Act. Lion or Mouse?, The Modern Law Review, Vol. 47, No. 1 (Jan., 1984), pp.48-56)


None of these recommendations have so far been implemented, with the exception of that related to defective products.

Vivienne Harpwood has construed the position of strict liability after the Pearson Committee then and today as follows:

“It is extremely unusual for a claim under the rule in Rylands v. Fletcher to reach the courts today”.

(See, Vivienne Harpwood, Modern Tort Law, (Routledge: 5th Edition, 2003) at p.242)


This recommendation has not been adopted in UK law although, depending on their final recommendations, the review of medical negligence currently being undertaken throughout the United Kingdom may yet have some impact in this area.

(See Sheila McLean, John Kenyon Mason, Legal and Ethical Aspects of Healthcare, (Cambridge University Press, 2003) at p.93.

Also see, Ada Kewley, The Administration of Justice Act 1983-Partial Implementation of the Pearson Report, Liverpool Law Review, Vol. 5, No.1, 1983)


A German pharmaceutical company, Chemie Gruenthal at Stolberg, synthesized thalidomide in West Germany in 1953 while searching for an inexpensive method of manufacturing antibiotics from peptides. Thalidomide was first introduced in 1957 primarily as tranquillizer, a medication prescribed particularly for imparting drowsiness and sleep. Then it was given to pregnant women to provide them relief from morning sickness and as an aid to help them sleep.

Before it was removed from market, an estimated 8,000 to 12,000 infants were born with deformities caused by thalidomide, and of those only about 5,000 survived beyond childhood.

(For more information refer to Vijay V. Moghe, Ujjwala Kulkarni and Urvashi I Parmar, Thalidomide, Bombay Hospital Journal, Vol. 50, No. 3, 2008. Also available at: (Last visited 18 October 2008))


In India, Article 38(1) of the Constitution of India (Directive Principles of State Policy) states that:

"the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life".

Thus, being a welfare state, it is the duty of the State under our Constitution to look after the welfare of all its citizens.


In various social welfare statutes the principle of strict liability has been provided to give insurance to people against death and injuries, irrespective of fault.

Thus, Section 3 of the Workmen's Compensation Act 1923 provides for compensation for injuries arising out of and in the course of employment, and this compensation is not for negligence on the part of the employer but is a sort of insurance to workmen against certain risks of accidents.


Similarly, Section 124A of the Railways Act 1989, Sections 140 and 163A of the Motor Vehicles Act, 1988, the Public Liability Insurance Act, 1991 incorporate the principle of strict liability.


Rule of strict liability has been applied, upheld by the Indian Courts. However the oleum leak disaster case of 1985 sounded the death knell of this doctrine.

M.C. Mehta v. Union of India, AIR 1987 SC 1086

Oleum gas leaked from one of the units of Shriram Foods and Fertilizers Industries in New Delhi. It resulted into death of one of the advocate and caused serious injuries to several others. A writ petition under Article 32 of the Constitution was brought by way of public interest litigation.


The Supreme Court of India rejected the application of the rule of strict liability in the following words:

“Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments, taking place in this country…Law cannot allow our judicial thinking to be constrained by reference of the law as it prevails in England or for the matter of that in any other foreign legal order.”


The Court also observed:

“This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norm and the needs of the present day economy and social structure.” It further held that, “Application of exceptions to this rule is inapplicable.”


Bhagwati, C.J. assertatively announced the entry of the rule of absolute liability and held the Defendant liable in the following words:

“…an enterprise, which is engaged in 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.”


Union Carbide Corporation v. Union of India, AIR 1992 SC 248

In this case, the rule of absolute liability applied in the oleum gas leak disaster case was reaffirmed by the Supreme Court.

In December, 1984 Methyl Iso Cyanate and other toxic gases leaked from the Union Carbide Corporation India Ltd. at Bhopal. About 2660 people died, several thousand suffered serious injuries which did not die with that generation but also in cases got transferred to their next generation.

The Court on applying the principle of absolute liability held the defendant liable to pay US $470 Million dollars by way of compensation to the victims or relatives of the victims.


The Court reiterated this principle in:

Indian Council of Enviro-Legal Action v. Union of India, AIR 1996 SC 1466.

The issues were two-fold in the case:

Should the Corporation be held responsible to meet the cost of the remedial action to remove and store the sludge in safe and proper manner?

Should they be made liable for the loss and suffering caused to the village where the industrial complex was located?


To answer this, the court re-emphasised the Mehta principle of absolute liability.

‘Generator is responsible’ is the universal principle holding the health care establishments legally accountable for damage caused by waste management processes.

The apex court called it a rule of "Polluter pays" and stated that the industry alone has the resources to discover and guard against hazards and dangers caused by its actions.


Justifying the stringent level of liability laid down, the court also observed that persons affected do not have this ability.

It is also difficult for the victim to establish the absence of reasonable care or foreseeability of the industry.

For these reasons, the onus ought to lie on the industry. In fact, the Court imposed on the respondent’s liability not only for environmental hazards, but also the cost of all measures including remedial measures recovered from them.


Arun Kumar v. Union of India, AIR 2001 Delhi 140

In this case, a tigress chewed the hand of a three year old child. While holding the Zoo authorities liable the Court held that the zoo authorities being under absolute responsibility did not perform their part of duty and thus should be answerable to pay compensation.


The principle of absolute liability was again applied by the Supreme Court in:

M. P. Electricity Board v. Shail Kumari (2002) 2 SCC 162

In this case, a live wire got snapped and fell on the public road which was partially inundated with rainwater. Not noticing that wire, a cyclist, aged 37 years, while returning home at night from the factory where he was employed, rode over the wire which twitched and snatched him and he was instantaneously electrocuted.

A claim for damages made by the dependents of the deceased was resisted by the appellant State Electricity Board on the ground that the electrocution was due to the clandestine pilferage committed by a stranger unauthorisedly siphoning the electric energy from the supply line.


The High Court directed the Board to pay as compensation, Rs. 4.34 lakhs to the claimants. Before the Supreme Court, the appellant sought to rely on the exception to the rule of strict liability being ‘an act of stranger’.

The Supreme Court held that “even assuming that all safety measures had been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertaking. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, “strict liability”.


It further held that “but that [act of stranger] exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant board.


Section 2 (a) defines accident as follows:

“Accident means an accident involving a fortuitous, sudden or unintentional occurrence while handling any hazardous substance resulting in continuous intermittent or repeated exposure to death, of or injury to, any person or damage to any property but does not include an accident by reason only of war or radio-activity.”


As per Section 3 (1) of the Act, where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as specified in Schedule for such death, injury or damage.

Further, Section 3 (2) lays down that in any claim for relief under sub-section (1)…the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made due to any wrongful act, neglect or default of any person.


The above provisions appear to be of immense help and assistance to the victims of such hazardous or inherently dangerous activity. Once one study Section 8, realises the hard reality. It reads as:

“1. The right to claim relief under sub-section (1) of section 3 in respect of death of, or injury to, any person or damage to any property shall be in addition to any other right to claim compensation in respect thereof under any other law for the time being in force.

2. Notwithstanding anything contained in sub-section (1), where in respect of death of, or injury to, any person or damage to any property, the owner, liable to give claim for relief, is also liable to pay compensation under any other law, the amount of such compensation shall be reduced by the amount of relief paid under this Act.


The beauty of Law of Torts is that it is not stagnant but is growing.

In Jay Laxmi Salt works (P) Ltd. vs. the State of Gujarat, 1994 (3) SC 492, the Supreme Court observed: "Law of torts being a developing law its frontiers are incapable of being strictly barricaded".

It also finds support in the American Restatement of Torts, Art 1; vide D. L. Lloyd: "The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognize as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future."


Doctrines of Strict liability or the Absolute Liability have undergone sea change. Sometimes they are overvalued or undervalued. However, we are now witnessing a swing once again in favour of the principle of strict liability.

The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the 10 million plus gallon of crude oil spill in 1988 on to the

Alaska coast line from the oil tanker Exxon Valdez, deliberate release of 240-260 million gallons of crude oil

into the Persian Gulf by Iraqi invaders, and


recently the Herbei Spirit collides with a steel wire connecting a tug boat and barge five miles off South Korea’s west coast, spilling 2.8 million gallons of crude oil causing environmental disaster, destroying beaches, coating birds and oysters with oil, and driving away tourists with its stench,

-have shocked the conscience of people all over the world and have aroused thinkers to the dangers in industrial and other activities, in the modern society , and the need and importance of these doctrines.

(For the information on oil spills and disasters, refer to “Oil Spills and Disasters“, http://infoplease.com/ipa/A0001451.html)


Thank You!


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