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Liability (Strict Liability, Absolute Liability and Vicarious Liability) Under Law of Tort

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, like vicarious liability, the liability of one person for the act done by another person may arise. Liability can further be classified as strict and absolute liability.

Strict Liability

It is a kind of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. It is basically a legal doctrine that holds a party (defendant) responsible for its actions, without the plaintiff having to prove the negligence or fault on the part of defendant. When any person involves in ultra hazardous activities such as keeping wild animals, using explosives or making defective products, then he/she may be held liable if any other person is injured because of that activity, even if the defendant took necessary precautions and followed safety requirement.

In Rylands v. Fletcher case, the defendant got a reservoir constructed through independent contractor. There were old unused shafts under the site of the reservoir, which the contractors 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 adjoining land.
The defendant did not know about the shaft and had not been negligent, but he was held liable. This is also called the 'No fault' liability. In the given case, the liability recognised was 'strict liability' i.e. even if the defendant was not negligent or did not cause any intentional harm, he could still be liable under the rule.

Essentials of Strict Liability

For the application of the rule, the following three essentials should be there:
  1. Dangerous Things
    According to this rule, the liability for the escape of thing from one's land arises only when the thing collected was a dangerous thing. In Rylands v. Fletcher, the thing was large water body (reservoir). The rule is also applied to gas, electricity, vibration, sewage, explosive, etc.

  2. Escape
    For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. The case of Read v. Lyons and Co, is an example of no escape and hence no liability. In this case, the plaintiff was an employee in the defendant's ammunition factory, while she was performing her duties inside the defendant's remises, a shell, which was being manufactured there, exploded and she was injured. There was no evidence of negligence on the part of defendant. It was held that the defendant was not liable because there was no escape of thing outside the defendant's premises. So, the rule of Rylands v. Fletcher did not apply to this case.

  3. Non-natural Use of Land
    There should be non-natural usage of land to make the defendant liable. Like in Rylands v. Fletcher case, collecting large body of water is considered to be non-natural use of land.

    In Sochacki v. Sas, it has been held that having a fire place is natural use of land. Even if there is escape of fire from the fire place and the plaintiff suffers harm, the defendants were not held liable as there was no non-natural use of land.

Exceptions to the Rule of Strict Liability

The following exceptions to the rule have been recognised by Rylands v. Fletcher and some later cases:
  1. Act of God
    Act of God (vis major) was also considered to be a defence against the action of strict liability. If the escape has been unforeseen and takes place because of super natural forces without any human intervention, the defence of act of God can be pleaded.

    In the case of Nichols v. Marsland, the defendant created artificial lakes on his land by damming up a natural stream. That year, there was extraordinarily heavy rainfall by which embankment constructed for lake gave way. The rush of water washed away plaintiff's four bridges. The plaintiff brought an action to recover damage for the same. It was found out that there was no negligence from defendant's side. The accident was considered an act of God and the defendant was not held liable.

  2. Consent of the Plaintiff
    When the plaintiff has consented to the accumulation of the dangerous thing on the defendant's land, the liability under the rule does not arise. Such consent is implied where the source of danger is for the 'common benefit' of both the plaintiff and the defendant.

    In Carstairs v. Taylor case, the plaintiff hired ground floor of a building from the defendant. The upper floor was occupied by defendant. Water stored on the upper floor leaked without any negligence on the part of the defendant. The water destroyed the plaintiff's goods on the ground floor. As the water had been stored for the benefit of both, the plaintiff and the defendant, the defendant was not held liable.

  3. Act of Third Party
    If the harm has been caused due to act of a 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. Thus, in Box v. Jubb, the overflow from the defendant's reservoir was caused by the blocking of a drain by strangers, the defendant was not held liable for that.

  4. Statutory Authority
    An act done under the authority of State is a defence to an action for tort. The defence is also available when the action is under the rule in Rylands v. Fletcher. Statutory authority however cannot be pleaded as a defence when there is negligence.

    In Green v. Chelsea Waterworks Co., the defendant company had a statutory duty to maintain continuous 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.
  5. Plaintiff's Own Default
    Damage caused by escape due to the plaintiff's own default was considered to be a good defence in Rylands v. Fletcher itself. If the plaintiff suffers damage by his own intrusion into the defendant's property, he cannot complain for the damage so caused.

In Ponting v. Noakes, the plaintiff's horse intruded into the defendant's land and died after having nibbled the leaves of a poisonous tree there. The defendant was not held liable because damage would not have occurred, but due to the horse's own intrusion to the defendant's land, damage occurred.

When the damage to the plaintiff's property is not caused much by the 'escape' of the things collected by the defendant but by the unusual sensitiveness of the plaintiff's property itself, the plaintiff cannot recover anything.

In Eastern and South African Telegraph Co. Ltd. v. Capetown Tramways Co, the plaintiff's submarine cable transmissions were disturbed by escape of electric current from the defendant's tramways. It was found that the damage was due to the unusual sensitiveness of the plaintiff's apparatus and such damage won't occur to a person carrying on ordinary business, therefore, the defendant was not held liable for the escape.

Absolute Liability

The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the exception. In India, the rule of absolute liability evolved in the case of MC Mehta v. Union of India.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the rule of strict liability and stated that the defendant would be liable for the damage caused without considering the exceptions to the strict liability rule.

Bhopal Gas Tragedy

This rule was upheld in the infamous Bhopal Gas Tragedy which took place between the night of 2nd and 3rd December, 1984. Leakage of 'Methyl Isocyanate' poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major disaster. Over three thousand people lost their lives. There was heavy loss to property, flora and fauna. A case was filed in the American New York District Court as the Union Carbide Company in Bhopal was a branch of the US based Union Carbide Company. The case was dismissed owing to no jurisdiction. The Government of India enacted the Bhopal Gas Disaster Act, 1985 and sued the company for damages on behalf of the victims. The court applying the principle of Absolute Liability held the company liable and ordered it to pay compensation to victims.

Vicarious Liability

The rule of vicarious liability imposes liability on one person for the act done by another person. Normally, a person who has done the wrongful act should alone be made liable for the injurious consequences arising out of it, but the principle of vicarious liability is an exception to it. In order to held a person liable for the act done by another person, it is necessary that there should be a certain kind of relationship between the two persons and the wrongful act done should be, in a certain way, connected with that relationship. The common examples of such relations include principal-agent relationship, master-servant relationship and partners.
  1. Principal-Agent Relationship

    Where an act is authorized by the principal and done by the agent, both of them are liable. The authority to do the act may be express or implied. When an agent does a wrongful act in the ordinary course of the performance of his duties as an agent, the principal shall be held liable for such an act. However, there is no doubt, that the agent is also liable for his act. Thus, their liability is joint and several.

    In Lloyd v. Grace, Smith and Co. (1912), Mrs Lloyd, who owned two cottages but was not satisfied with the returns, there from, approached the office of Grace, Smith and Co., a firm of solicitors to consult them about the matter of her property. The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way. She was asked to sign two documents which were supposed to be sale deeds. In fact, the documents that got signed were gift deeds in the name of the managing clerk himself. He then disposed of the property and misappropriated the proceeds.

    He had acted solely for his personal benefit and without the knowledge of his principal. It was held that since the agent was acting in the course of his employment, apparently and ostensibly, the principal was held liable for the fraud. In State Bank of India v. Shyama Devi, the woman's (plaintiff) husband gave some amount and cheques to his friend, who was an employee in the defendant bank, to deposit into the plaintiff's account. No receipt was obtained and the bank employee misappropriated the amount. It was held by the Supreme Court that the employee, when he committed the fraud was not acting in the scope of bank's employment but in his private capacity as the depositor's friend, therefore the defendant bank could not be held liable for the same.

  2. Partners

    The relationship between partners is that of principal and agent. Therefore, the rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, the other entire partners are liable to the same extent, as the guilty partner. The liability of each partner is joint and several.
    In Hamlyn v. Houston and Company, one of the two partners of the defendant's firm, acting within the general scope of his authority as a partner, bribed the plaintiff's clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets relating to his employer's business. It was held that both the partners of the firm were liable for this wrongful act (including breach of contract) committed by only one of them.

  3. Master and Servant Relationship

    If a servant does a wrongful act in the course of his employment, the master is liable for it. Though, the servant is also liable. The wrongful act of the servant is deemed to be the act of the master as well. The doctrine of liability of the master for act of his servant is passed on the maxim respondeat superior, which means 'let the principal be liable' and it puts the master in the same position as if he had done the act himself.

    It also derives validity from the maxim qui facit per alium facit per se, which means 'he who does an act through another is deemed in law to do it himself.'

    There are two essentials which should be satisfied by a plaintiff before he can succeed against the defendant, fixing vicarious liability on him for any wrongful act done by the latter's servant, which are as follows:
    1. He must establish that the relation of master and servant subsisted between the defendant and actual wrong doer.
    2. He must also prove that the wrongful act was done by the servant whilst he was engaged in the course of employment of the defendant.

Difference between Servant and an Independent Contractor

A servant is an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done, where as an independent contractor is not subject to any such control. He is his own master and exercises his own discretion.

An independent contractor is one who undertakes to produce a given result, but in the actual execution of that work, he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.

For example, my car driver is my servant. If he negligently knocks down X, I will be liable for that. But if I hire a taxi for going to the airport and the taxi driver negligently hits X, I will not be liable towards X, but the taxi driver alone will be liable for that because the driver is not my servant but only an independent contractor.

As a general rule, the master is liable for the torts committed by his servant, but an employer is not liable for the torts committed by an independent contractor employed by him.

In Morgen v. Incorporated Central Council, the plaintiff, while he was on a lawful visit to the defendant's premises, fell down from an open lift shaft and got injured. The defendants had entrusted the job of keeping the lift safe and in proper order to certain independent contractors. It was held that, for this act of negligence on the part of the independent contractors in not keeping the lift in safe condition, the defendants could not be held liable.

The general rule that an employer is not liable for the acts of an independent contractor is subject to some exceptions. In the following exceptional cases, an employer can be made liable for the wrongs of the independent contractor:
  1. Where the contractor is employed to do an illegal act. In such cases, the employer is undoubtedly liable on the principle of vicarious liability.
  2. Contractor negligently employed by employer for the discharge of duties which he is bound to do himself properly.
  3. An employer is liable for the act of an independent contractor in cases of strict liability.
  4. The liability of the employer also arises for the dangers caused on or near the highway. In Tarry v. Ashton, the plaintiff was injured by the fall of a lamp overhanging the footway adjoining the defendant's house. The lamp was attached to the defendant's house through some independent contractors. It was held that it was the defendant's duty to see that the lamp was reasonably safe there and he could not escape from his liability by getting the job done through independent contractors.

Liability of Vehicle Owners

The liability pertains to the cases of accident caused by mechanics, repairers or owners of workshops during the test drive of the vehicles entrusted to them by the owners of the vehicles for repairs.

In B Govindarajulu v. MLA Govindaraja Mudaliar, a motor lorry was entrusted by its owner for repair. While an employee of the workshop was driving it the lorry met with an accident. It was held by the Madras High Court that the lorry owner was not vicariously liable because the owner of the workshop was an independent contractor and not a servant of the owner.

Vicarious (Tortious) Liability of State
Liability of the State for the tortious acts of its servant is known as tortious liability of State. The liability of State for the torts committed by its servants is based on following three principles:
  1. Respondent superior i.e. let the principal be held liable.
  2. Qui facit per alium facit per se i.e. he who acts through another does the act himself.
  3. Socialisation of compensation.
The Constitution of a country seeks to establish it's fundamental or basic organs of government, administration and endeavours to define and describe the structure, composition, powers and principal functions, their interrelationship and attempts to regulate States relationship with the public. As such, the Constitution of India contains certain provisions relating to tortious liability of the State.

Position of Vicarious Liability of State in India

English law, i.e. Crown Proceedings Act, 1947, in which King is liable for a tort committed by its servant just like a private individual, there is no statutory provision regarding the liability of the State in India. However, Article 300 of the Constitution provides for the liability of State.

The position of State liability as stated in Article 300 of the Constitution of India is as under:
The Government of India may sue and be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provision which may be made by Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. [Clause 1]

If at the commencement of this Constitution:
  1. any legal proceedings are pending to which dominion of India is a party, the Union of India shall be deemed to be substituted for the dominion in those proceedings, and
  2. any legal proceedings are pending to which a province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings. [Clause 2]
In Vidyawati v. Lokumal, the plaintiff's husband died after being knocked down by a government car which was being driven rashly and negligently by an employee of the State of Rajasthan. At the time of the accident, the car was being taken from the workshop to the collector's bungalow for the collector's use.

In an action against the State of Rajasthan, the State was held liable. The Rajasthan High Court did not find any reason for treating the State differently from the ordinary employer and held that the State of Rajasthan was liable for the wrong of the driver.

In Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the plaintiff's servant was travelling in a horse driven carriage and was passing by the Kidderpore Dockyard in Kolkata, which is the government property.

Due to negligence on the part of the defendant's servants, a heavy piece of iron, which they were carrying for the repair of a steamer, fell and its clang frightened the horse. The horse rushed forward against the iron and was injured. The plaintiff filed a suit against the Secretary of State for India in council for the damage which was caused due to the negligence of the servants employed by the Government of India.

The Court tried to look to the liability of the East India Company. A distinction was drawn between the sovereign and non-sovereign functions of the East India Company. It was held that if the act was done in the exercise of sovereign functions, the East India Company would not have been liable, but if the function was a non-sovereign one, i.e, which could have been performed by a private individual without any delegation of power by the Government, the company would have been liable. Maintenance of the dockyard was considered to be a non-sovereign function and, as such, the Government was held liable.

Obligations Imposed by Law in Exercise of Sovereign Functions

Tort committed while performing duty in discharge of obligations imposed by law has been considered to be a defence in India. There is an exemption for the State from liability to pay damages for the tortious act of the servant, where a government servant is carrying out duties imposed by the law and not the government.

In Ram Ghullam v. Government of UP, the police authorities had recovered some stolen property and deposited the same in the Malkhana. The property was again stolen from the Malkhana. In a suit by the owner of the property against the State of UP, it was held that the government was not liable as its servant was performing duty in discharge of obligation imposed on him by law.

These obligations can be more clearly understood with the help of following points:

  1. Acts of Police Officials

    In State of Assam v. Md. Nizamuddin Ahmed, the plaintiff was carrying on business in sale of seeds of different agricultural products. The business was being carried out without a licence which was needed for such business. The police authorities seized the seeds from plaintiff's shop. The seeds got damaged because of lack of storage facilities and the negligence while they were in police custody. The plaintiff claimed compensation for the same. It was held that seizure of the seeds was in exercise of sovereign power and the plaintiff was, therefore not entitled to claim any damages for the same.

  2. Negligence of Military Servants

    Although, the maintenance of the army is a sovereign function but this does not necessarily means that the State will be immune from liability for any tortious acts committed by the army personnel. Here also, a distinction has to be drawn between acts which could be done by the government in the exercise of sovereign power and acts which could have been done by a private individual.

    In Smt Meinam Ongbi Bina Devi v. State of Manipur, rape was committed by an employee of the Union of India. Though, the accused employee had not been on duty but on unauthorized leave, holding the Central Government vicariously liable for the offence of rape committed by the accused, an employee of the Assam Rifles, the Manipur High Court said that the accused was on duty in the State for maintenance of law and order and said accused abused his position as an armed personnel of Assam Rifles.

  3. Acts Done in Exercise of Sovereign Power

    In Union of India v. Harbans Singh, meals were being carried from the cantonment, Delhi for being distributed to military personnel on duty. The truck carrying the meals belonged to the military department and was driven by military driver. It caused an accident resulting in the death of a person. It was held that the act was being done in exercise of sovereign power and therefore, the State cannot be held liable for the same.

  4. Acts Done in Exercise of Non-sovereign Power

    In Union of India v. Savita Sharma, the Jammu and Kashmir High Court held that the driving of a military truck to Railway Station to bring the jawans to Unit Headquarters is a non-sovereign function and therefore, if the respondent gets injured while the truck is being driven, she is entitled to compensation.

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