Abstract –

Some activities are too dangerous to deal with, and yet the law still allows such activities to continue due to their role in the industrial development and their social utility. Often, such activities contribute to major accidents, resulting in several casualties and loss of environment. To promote exercise of necessary caution to the respective enterprises or individuals handling such hazardous activities, and to serve justice to the ones harmed during such activities, the law has made two rules of liabilities: The Absolute liability and the Strict liability.

In this research paper, we will discuss the meaning behind the word liability and compare the aforementioned two liabilities in detail by discussing their meanings, origins and landmark cases of the respective liabilities. In this paper, we will also discuss the necessity of both the liabilities and challenges faced by strict liability in the modern times as it is, after all, a 19^th century rule. Essentials and exceptions of the strict liability will also be highlighted, along with some case analysis for further clarification.

In the end, this paper concludes with the analysis of some other cases based on these two tortious liabilities and discusses the most recent case regarding these liabilities.

 

Keywords: Absolute liability, strict liability, potentially harmful substance, premise, liability and exceptions.

OBJECTIVES

• To analyze and compare the principles of strict liability and absolute liability;
• To study cases under strict liability and absolute liability and their differences in application.

INTRODUCTION

              Liability is one of the basic concepts in Law of Torts. In simple terms, liability can be referred as one’s legal responsibility towards something. But in the context of torts, it is based upon the principle that if an individual causes harm to another in the course of his/her action or omission, he/she would be legally and financially liable (or responsible) to the one they have caused damage to.

              Absolute liability and strict liability are the two most fundamental concepts of liability in Law of Torts, with some very minor, yet distinct differences. One can also say that the law of Absolute liability is the modified; thus, more modern version of the law of strict liability, which won’t be much far off either. While the strict liability lays off some defense, the law of absolute liability holds an individual completely liable for the fault without any limitation or exception which are still applicable in the other liability.

              Both of them may be similar in nature, but they have some key differences which is critical for any law student to know and understand. In this paper, we’ll analyze both the liabilities along with their key differences through their origin and landmark cases of each liability respectively.

ORIGIN: STRICT LIABILITY[1]

This liability first emerged in the late 19^th century, in the landmark case of Ryland’s v. Fletcher. In this case, the law of strict liability was defined as the responsibility of a person, who keeps hazardous substances on his/her premise, to be held at fault if any of the said substance escapes his/her premise and causes damage. In this type of liability, the actual ‘fault’, i.e. the person’s action or omission may very well be absent. In simple terms, it does not matter if the person is directly involved with the cause of the escape of hazardous substance; he will still be held at fault due it being his duty to exercise proper caution. Similarly, motive and intentions also do not matter in this liability.

This is mainly due to the fact that there are many such activities which can cause harm to both humans and the environment nearby, but are necessary to perform due to their social utility and importance. Thus, the responsibility of these activities lie heavily on the person whose premise these activities take place on and thus, it is their duty to practice proper precaution while handling these activities with potentially harmful substances. The law allows them to handle these only upon their accordance with proper safety measures and the doctrine of strict liability.

RYLANDS V. FLETCHER[2]

The rule in this case is based upon the concept of aversion of foreseeable damage. Only upon reasonable foreseeability and failing to avert such damage, would this liability take action.

 

Facts:

            The defendant (John Fletcher) was a textile entrepreneur, who owned a mill located in England’s coal-rich Lancashire area. For the energy purposes of the mill, the defendant decided to hire some contractors and engineers to construct a water reservoir in his land. Due to the presence of old shafts under the site of the construction of the water reservoir, as soon as the water filled in the said reservoir, it entered the neighbor’s i.e. the plaintiff’s (Thomas Fletcher) coal mine as that is where the unused shafts led, resulting him damages worth 937 pounds (approximately worth GBP 88,000 in present-day money). The defendant claimed it to be the result of negligence of the contractors and the engineers’ who failed to notice those shafts and block them during the construction. He had also claimed that the cause of the damage was unknown to him as he had no direct involvement during the construction.

 

Issues:

            The defendant was not directly involved with the whole act, thus, should he be held reliable for something he did not actively participate in or influenced upon, despite it being on his premise?

Judgement:

            The House of the Lords held the defendant liable for all the damages caused in the mine, regardless of the defendant’s plea. According to the rule based upon this case, if a person conducts any activity with a potentially dangerous substance on his/her premise, he/she will be answerable to the damage caused by the escape of the said substance, regardless of it escaping due to their negligence or not.

 

 

ORIGIN: ABSOLUTE LIABILITY

As mentioned earlier, the law of strict liability has some exceptions or the ‘defenses’ for the defendant to escape from the liability. Absolute liability, on the other hand, has the same principles as the strict liability but without those aforementioned exceptions.

The law of absolute liability first originated from the landmark case of M.C. Mehta v. Union of India[3], where the need for a more modern application of the law of strict liability was urgently required. This case clearly stated the rule that an enterprise which is engaged in an inherently dangerous activity (let it be due to the nature of the activity itself or the substance involved in the activity) is completely liable for the damage caused due to the said activity, and has to compensate to all the people affected.

 

M.C. MEHTA V. UNION OF INDIA (THE OLEUM GAS CASE)

 

Facts:

            There was a case of severe leakage of oleum gas on the 4^th and 6^th of December, 1985 in Delhi. It took place in one of the units in the enterprise of Shriram Foods and Fertilizers Industries, which belonged to the Delhi Cloth Mills, Ltd. In this incident, several people were injured while one had died, who happened to be an advocate practicing in the Tis Hazari Court. A writ petition by the way of Public Interest Litigation (PIL) was brought to the court by the advocate M.C. Mehta himself.

 

Issues:

            This was not the first case of gas leakage that happened in India which resulted in several causalities. The major issue was that if the law of strict liability was followed, then all these mishaps arising from the conduct of such large enterprises will directly fall under the exceptions of the said liability. Thus, letting them get away without any liability for the damage they have caused during the conduct of their harmful activity. Not only would it be injustice for the ones who have suffered from the damage, but will also form the notion that big industries are immune to this liability.

 

Judgement:

            After the Court noted the aforementioned issues, it held to therefore, evolve a new rule; the law of ‘Absolute liability’, as coined by (then) Chief Justice of India, P.N. Bhagwati. This new rule was a more modernized, contemporary version of its other counterpart, strict liability, just without its exceptions.

ESSENTIALS AND EXCEPTIONS OF STRICT LIABILITY

ESSENTIALS OF STRICT LIABILITY

There are certain essentials or ‘qualifications’ which determine whether or not a liability is strict liability. These essentials are as follows:

1. POTENTIALLY HARMFUL SUBSTANCE

In simple terms, if the substance that has capability to cause potential damage to the environment or people nearby escapes from the premise, then the defendant will be liable. For example: The water in the reservoir in Ryland’s vs. Fletcher case.

2. ESCAPING FROM THE PREMISE

One of the most important essential for strict liability is that the potentially harmful substance must escape from the premise of the defendant and it should not be in reach or capability to stop, once it escapes.

3. NON-NATURAL USE OF LAND

This simply means that there must be some special use (activity) of land that increases the danger of damage to others nearby. It must not be the ordinary use of land or use as is proper for the common benefit of community.

      These are the three essentials of strict liability. The issue being that only when every single one of these essentials are satisfied, would the liability be termed as strict liability.

EXCEPTIONS OF STRICT LIABILITY

            Exceptions are mostly a set of defenses or ‘excuses’ that the defendant can plea to escape strict liability, only if his/her actions have qualified a specific set of conditions respective to each defense mentioned. Each defense depends on the facts of the case and can change in accordingly. The ones given below are the major exceptions of the law of strict liability:

1. ASSUMPTION OF THE RISK

This exception has the same principle as the tortious maxim volenti non-fit injuria. In simple terms, this means that the plaintiff or the claimant was aware of the risks of the activity involving the potentially harmful substance and had voluntarily associated with it despite its full knowledge. Thus, it can also be interpreted that the plaintiff consented to being harmed by the defendant due to which, he is not allowed to complain regarding that, as no one can enforce a right which he/she has voluntarily waived or abandoned.

2. DEFAULT OF THE PLAINTIFF

If the damage caused to the plaintiff is solely because of the act or default of the plaintiff himself/herself, there is no remedy for him/her.

3. ACT OF GOD

The Act of God or Vis Majeure can be described as an event which is directly and exclusively resulted from the natural causes that were not foreseeable or preventable by the exercise of proper precaution by the defendant. Thus, if the potentially harmful substance escapes the premise due to some natural cause and without any human intervention, then the defendant will not be liable.

4. ACT OF A THIRD PARTY

When the damages are caused due to a third party who is not affiliated with the defendant in any way, such as: servant, worker, secretary, contractor, etc., then the defendant cannot be held liable; unless the act of the third party is foreseeable and the defendant did not exercise proper caution to avoid that act.

5. STATUTORY AUTHORITY

When an act is done under the authority of a statute, it exempts the defendant from any tortious liability. In such case, the injured party has no remedy except for claiming the compensation provided under the statute itself. The damage caused due to such an act is not actionable due to the legislature authorizing it. However, the defense cannot be pleaded if there is any kind of negligence on the part of the defendant or if the damage is considered to be foreseeable.

      These are the major five exceptions of the law of strict liability, due to which defendants can escape the liability. In contemporary times, these exceptions stood out as a major flaw, especially in cases where large enterprises and industries can plead them to escape liability.

NECESSITY OF ABSOLUTE LIABILITY

As mentioned above, the law of strict liability is subjected to many exceptions; thus, enabling many such cases where individuals escape the liability and the damage done to the environment and people is left behind with injustice. That is why in India, legal opinion turned in favor of adopting a more stringent rule, especially after the Bhopal gas tragedy of 1984 and the consecutive oleum gas leak case that occurred just after a year later after the aforementioned mass accident.

After analyzing the old 19^th century law and the need of modification of it, the apex court of India in the M.C. Mehta v. Union of India (The Oleum Gas leak case) stated that,       “Moreover the principle so established in Ryland v. Fletcher of strict liability cannot be used in the modern world, as the very principle was evolved in 19th century, and in the period when the industrial revolution has just begun, this two century old principle of tortuous liability cannot be taken as it is in the modern world without modifications.”[4]

1. Bhagwati further stated that the law of strict liability had emerged in a time period when the nature of the industrial development was at its initial stage, thus it did not account for the current contemporary situations or the economic and social structure of the current society, thus, was unable to be adapted in accordance to it. In today’s modern society where inherently dangerous industries were necessary to carry out development programme for the social utility, the old rule is almost impossible to be held relevant in such context. The same was agreed by the Division Bench of Andhra Pradesh High Court in the case of K. Nagireddi v. Union of India.[5]

Furthermore, in a rapidly globalizing country like India, which is the country this modified liability originated from, the technological complexity and nature of industrial revolution increases at a high rate. All this not only affects the economic stability of the country, but the social status as well. The inclusion of Multinational Corporations in the jurisdiction, at this point, is necessary and inevitable. Also the fact that the industrial development cannot take place without dealing with substances which are essentially harmful or hazardous in nature also highlights the need to put on responsibility on the shoulders of such enterprises for the protection of the people as well as nearby environment from any kind of damage by the escape of the harmful substance.

This is why the law of strict liability was seen as outdated, and was modified into the rule of absolute liability by the Supreme Court in the Oleum Gas leak case. It was expressly declared that the new rule was not to have any exceptions listed under the strict liability, and the Court justified it with the two reasons that:

• The industry dealing with such potentially harmful substance for their own private profits are to be under social obligation to compensate those who it had harmed during or resulted due to any activity dealing with the said substance;
• The industry alone has such resources that can be used to discover and protect such hazardous substances, thus it is their duty to maintain the utmost precaution available to

The Court further explained, “If the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads… This principle is also sustainable on the ground that the enterprise also has the resource to discover and guard against hazards or dangers and to provide warning against potential hazard.”[6]

DIFFERENCE BETWEEN STRICT LIABILITY AND ABSOLUTE LIABILITY

The four key differences between the rules of strict liability and absolute liability were laid down by the Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak case) as follows:

1. The most evident difference between the two is the lack of exceptions in case of absolute liability, which is still present in case of law of strict liability;
2. Absolute liability only covers those enterprises who are involved with activities regarding potentially harmful substances. Any other any other activities fall under the strict liability;
3. The escape of the harmful substance from its premise is one of the necessary essential of the strict liability, whereas it is not as such in case of absolute liability. Therefore, it means that the defendant will still be liable if a person is injured inside/outside the premise due to the activities involving the hazardous substance;
4. Another essential requirement of strict liability; the non-natural use of land is not necessary in case of absolute liability. This essential simply means that even if an individual owns a potentially harmful substance which he/she uses naturally escapes, then he/she will be still held liable; even after necessary precaution was

PUBLIC LIABILITY INSURANCE ACT, 1991

Under the Public Liability Insurance Act, 1991, enterprises dealing with potentially harmful substance have to take out several policies covering liabilities for providing immediate relief to anyone who has being harmed in the course of the activity regarding the hazardous substance. This insurance is to be taken by the owner before his/her company even starts handling or dealing with the said substance. Immediate relief is provided to any person (worker, passer-by or any person in the vicinity of the accident) suffering injury or damage to property; in case of death of the said person, his/her heir are provided with the relief.

For the application of the relief, the victim or his/her family are to submit an application regarding the relief fund to the Collector within five years of the accident. A notice should be given to the owner and the insurer prior to the submission of the application; thus, giving both the parties a chance to be heard and negotiate the amount to be given for the relief. The victim, however, is still free to go to the Court in demand for higher compensation if not satisfied.

In case of non-compliance, refusal to provide relief or to take the insurance before participating in any activity regarding the hazardous substance can be punishable with imprisonment for a minimum period of 1 year and 6 months, which may extend to maximum 6 years with or without the fine which shall not be less than 1 lakh rupees. For any subsequent offences, the person can be punishable with minimum 2 years of imprisonment which can be extended to 7 years, with a fine of not less than 1 lakh rupees.

OTHER CASES

 

BHOPAL GAS LEAK DISASTER CASE[7]

Facts:

            On the night of 2^nd December of 1984, a mass disaster occurred in Bhopal due to the leakage of Methyl Isocyanate (MIC) and other toxic gases from the Union Carbide India Ltd, (UCIL), which is a subsidiary of Union Carbide Corporation (UCC), a multinational company registered in USA. Almost 4000 people died and lakhs of people were injured due to leakage of more than 27 tons of methyl Isocyanate and other deadly gases, turning Bhopal into a literal gas chamber. Some people permanently lost their eyes, hearing senses while some suffered from neurological disorders and scores of other complications as well as several other diseases due to the result of coming in direct contact with the hazardous gases.

 

Issues:

            Too many cases were filed against UCC at the same time in Indian as well as American Courts by the deceased victims’ family and by many of the affected people. So many cases that all the suits were consolidated and dismissed by Judge Keenan on the ground of forum inconvenience. Even after all this, a suit regarding this case was filed in the District of Bhopal which awarded compensation for 350 crores rupees. This amount, on an appeal to Madhya Pradesh High Court by UCC, was reduced to 250 crores rupees. However, this decision of the Madhya Pradesh High Court was also challenged by both the parties; UCC and the Union of India. All these refiling of cases led to the delay of settlement and judgement of the whole affair.

 

Judgement:

            The Supreme Court held down the law of absolute liability instead of strict liability for this case. The defense on the grounds of sabotage was rejected and the principle laid in the Supreme Court in the M.C. Mehta v. Union of India (oleum gas leak case) was held and followed. Furthermore, to ensure that in future, no such delay in providing compensation to the victims and their families happen, the Public Liability Insurance Act, 1991 was passed.

MADHYA PRADESH ELECTRICITY BOARD VS SHAIL KUMARI AND ORS[8]

Facts:

            The plaintiff’s husband died due to electrocution on 25^th May, 1999. According to her, her husband had gone to the field for collecting fodder on his cycle, when he came in contact with live electric wire lying on the ground which he was unable to see and was electrocuted. Southern Power Distribution Company of Andhra Pradesh Ltd. admitted that on 24^th May 1999, wire snapped due to heavy gale and rain and had fallen on sugar cane plant without touching the ground. Plaintiff’s husband, while going through the sugar cane field came into contact with the snapped conductor and got electrocuted. The Board had sanctioned an ex- gratia of amount 10,000 rupees to the family of the deceased man, which the commission found extremely inadequate.

Issues:

            The live wire falling due to strong gale and rain was not an event the Board had any influence on, and the defendant plead that the reasonable care was taken. Whether the case was to be taken as nuisance or strict liability was also in question.

 

Judgement:

            The Court held that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defense that the cables were disrupted due to the blowing of strong gale and rain the previous day, current found its way through the low tension cable into the premises of the plaintiff and thus, was the cause of an innocent man’s death. Thus, this could not be held as a justifiable defense. The Electricity Board was ordered to compensate the amount of 4,34,000 rupees for the electrocution of the plaintiff’s husband.

READ V. J LYONS[9]

Facts:

            The plaintiff was employed by the Ministry of Defense to inspect defendant’s factory which made explosives for the Ministry of Supply in England. During her inspection, an explosion took place due to a shell detonating, which resulted in death of one person and injuring of the plaintiff and other employees. There was no clear evidence that negligence was the cause of the explosion.

Issues:

            The products in the company were known for their ‘explosiveness’, thus, the Plaintiff was aware of the dangers, and the product did not ‘escape’ the premise. So, would the law of strict liability still apply?

 

Judgement:

            According to the law of strict liability set from the case of Ryland’s vs. Fletcher, there are three main essential requirements that determine if a liability is strict liability or not. In those three essentials, escape of the potentially harmful substance is included, which did not apply to this case. Judge Viscount Simon held that the ‘escape’ was an important part of the essential requirements. Thus, in this case, there was no escape from the defendant’s land as the explosion had injured the plaintiff and others inside the premises of the factory itself and hence the rule of strict liability cannot be applied. Thus, the judgement was given in favor of the defendant and no relief or compensation was awarded to the plaintiff.

VIZAG GAS LEAK CASE

Since this is the most recent case regarding these tortious liabilities, proper judgements are yet to arrive. All the information mentioned below about the case are from secondary sources such as news sites.

 

Facts:

            On the early morning of 7^th May, 2020, there was an industrial accident of leakage of poisonous gas, Styrene Monomer at the LG Polymers chemical plant, which is suspected to have occurred due to malfunction in the cooling system of the storage tanks of the aforementioned gas. The resulting vapor due to the leakage had spread over the nearby villages and areas in Visakhapatnam, causing more than a 1000 causalities and about 13 deaths as of current.

Upon large number of protests and panic setting in the minds of the people, the Andhra Pradesh government immediately announced an ex-gratia of the amount 1 crore rupees to the family of the deceased, jobs to one member from the family and a slew of other relief packages.

Meanwhile, the National Green Tribunal (NGT) on the 8^th of May, 2020, directed South Korean company LG Polymers India Ltd., to deposit an initial amount of ₹50 crores to the collector. The tribunal determined the amount after analyzing the company’s financial worth and the extent of damage caused by the gas leak. A bench headed by NGT Chairperson J. A.K. Goel also issued a notice to the Andhra Pradesh Pollution Control Board, Central Pollution Control Board and the Union Environment Ministry, seeking their response on the said incident by May 18, 2020.

Currently, the tribunal has invoked the case under the law of strict liability. Further judgement is yet to arrive or released to the public.

CONCLUSION AND SUGGESTIONS

There are many laws on various fields that are now considered outdated due to their restricted utility in contemporary times. One such law is the rule of strict liability, which even though is used still, has many such loopholes which can be easily exploited in today’s times. Thus, to correspond with the modern times, the rule was needed to be modified.

Absolute liability is very similar to the strict liability, but with its no-exceptions part, it avoids the exploitation and injustice to the suffering party. There was an immediate and inherent need for such a principle as the rule of strict liability cannot be taken as the sole principle to provide for compensation as it has been formulated about two centuries ago, when the level of technological development was just at its initial stage, in comparison with today’s overall development.

However, there is still need of some improvement, in case of the law of absolute liability. As mentioned before in the paper, the principle of absolute liability offers a compensation to the sufferers/victims whose amount is based on the paying capacity of the enterprise. It indeed is right that this condition will help the victims to get larger compensation, but that would only apply when the industries who have the large capacity to pay so. The smaller industries would lead the consequence of smaller compensation which may not be in accordance with the damage suffered, which goes against the basic principle of the tortious liability. Thus, it is highly suggested to change the deciding element behind the amount of compensation provided, to the quantum of damages suffered by the victims at least for the smaller industries to avoid any kind of injustice to the sufferers.

Concluding, the research questions are clearly answered as such, the first part being explained in details through various cases and the second part being researched and analyzed through cases like the Oleum Gas Leak case and Bhopal Gas Tragedy case, where the victims would have faced extreme injustice if strict liability would have been applied as these industries would have escaped from the liability by pleading the exceptions of the law of strict liability which very well applied to them. This would have not only caused an uproar in the public and resulted in severe injustice to the suffers, but it also would have given the notion that big enterprises are immune to such tortious liability.

 

 

REFERENCES

 

Books:

• N. Pandey, Law of Torts, 9^th Edition
• S.K. Kapoor, Law of Torts, 7^th Edition
• N. Shukla, The Law of Torts, 20^th Edition

 

Websites:

• https://lawcirca.com/rule-of-strict-and-absolute-liability/ accessed on: 30^th April, 2020.
• https://nhrc.nic.in/press-release/death-due-electrocution-ap-show-cause-notice-southern-power-distribution-company accessed on: 3^rd May,
• http://kanoon.nearlaw.com/2017/10/18/public-liability-insurance-act-1991/ accessed on: 3^rd May,
• https://www.thehindu.com/news/national/andhra-pradesh/visakhapatnam-gas-leak- villagers-stage-protest-in-front-of-lg-polymers/article31542929.ece accessed on: 13^th May, 2020.
• https://www.thehindu.com/news/national/andhra-pradesh/visakhapatnam-gas-leak-ngt-directs-lg-polymers-india-to-deposit-50-crore/article31532759.ece accessed on: 13^th May, 2020.
• https://www.thehindu.com/news/national/visakhapatnam-gas-tragedy-ngt-cites- obsolete-law-in-gas-leak-case/article31537617.ece accessed on: 13^th May,

[1] The rule was formulated by Blackburn, J. in Exchequer Chamber in Fletcher vs. Ryland’s, (1866) L.R. 1 Ex 265.

[2] (1868) L.R. 3 H.L. 330.

[3] AIR 1987 SC 1086.

[4] W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS, 8th ed. 2010 pp. 248.

[5] AIR 1982 AP 119.

[6] C.S. Mehta, Environmental Protection and Law, 2009, page no. 96.

[7] (1989) (1) SCC 674: AIR 1992 SC 248.

[8] (2002) 2 SCC 16.

[9] [1947] AC 156.

 

Authored By: DEBAPRIYA BISWAS

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7