Strict Liability

Chapter 4

Strict Liability Generally a man is held liable for his wrongful acts when committed either intentionally or out of culpable negligence, but, there is an exception to this general rule which is known as wrongs of Strict Liability or Absolute Liability. 1 These are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are the exception to the general requirement of fault. Strict liability is the liability without fault. The word ‘strict’ or ‘absolute’ denote that it is not necessary for the injured party to prove any intention or negligence on part of the wrong-doer in order to make him liable for the act. Nor will proof of any amount of care or caution absolve the wrong-doer from liability. The common agreement is that mens rea must be the basis of penal liability; many jurists think that strict liability must be the rule in civil law. 2 The use of strict liability in criminal law is controversial as it means a person may be liable where they are not at fault or have taken all reasonable care to ensure compliance of the law. 3

Strict Liability doctrine can be defined as the acts or omissions which are held liable without the mens rea (mental intent). It is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability including the fault in criminal law. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. General principle: Act + Intention = Criminal offence In criminal law, a person is guilty and convicted on both actus reus (the prohibited act) and mens rea (the intention to commit the prohibited act). Take for example, to obtain a murder conviction, the prosecution must show that there was an act (actual bodily harm) + intention to cause injury by that act. Mens rea along with actus reus forms the bedding stone for the criminal offence.4 1 NK Jayakumar, Lectures in Jurisprudence, p303 2 NK Jayakumar, Lectures in Jurisprudence, p302 3 law (See in particular Callow v Tillstone) 4 As stated in Sherras v. De Rutzen (1895): Mens rea is required in every other offence

However, such is not in the cases of strict liability. Act only The mens rea (intention) is irrelevant in both cases. The person is guilty on the act alone (actus reus) even if he had no intention. Intention, here, doesn't form part of the requirements to prove the offence. There is no need to prove negligence either. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea. These laws are applied either in regulatory offences enforcing social behaviour where minimal stigma attaches to a person upon conviction, or where society is concerned with the prevention of harm, and wishes to maximize the deterrent value of the offence.

The Origin and Evolution of Rule of Strict liability: In the 19th century, to improve working and safety standards in factories, the need for strict liability was first felt in England. The doctrine of Strict Liability formed its foundation in the England’s case Rylands vs. Fletcher5 Facts: The defendant owned a mill, where he constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Judgement: Blackburn J. held the mill owner to be liable, on the principle that “The 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 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”. On appeal this principle of liability without fault was affirmed by the House of Lords but restricted to nonnatural users vide. Thus, corporations that handle water, electricity, oil, noxious fumes, colliery spoil and poisonous vegetation are covered by this doctrine. Negligence of the victims is no excuse. The doctrine also operates as a loss-distribution mechanism: The person indulging in such hazardous activities (usually a corporation) being in the best position to spread the loss through insurance and higher prices of its products. However, later decisions in England diluted the principle by introducing several exceptions.

5 [1868] UKHL 1, (1868) LR 3 HL 330.

For the application of the rule therefore the following three essentials should be there: (1) Some dangerous thing must have been brought by a person on his land. (2) The thing thus brought or kept by a person on his land must escape. (3) It must be non-natural use of land. These essentials are based on the judgement in the Ryland V. Fletcher case.The basis of liability in the above case was the following rule propounded by Blackburn, J6: “We think that the rule of law is , that the person who for his own purposes brings on his lands 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 can excuse himself by showing that the escape was owing to the plaintiff’s default ; or perhaps that the consequence was of vis major, or the act of god; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” The justification for the above -stated rule was explained in the following words:“ The general rule, as stated above, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth on his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s land should be obliged to make good the damage which ensures if he does not succeed in confining it to his own property. But for his act in bringing it there , no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrued, or answer for the natural and anticipated consequences. And upon authority, 6 The rule was formulated by Blackburn, J. in Exchequer Chamber in Fletcher v Rylands, (1866) L.R. 1 Ex 265 and the same was approved by the House of Lords in Rylands v Fletcher,(1868) L.R. 3 H.L. 330.

this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.”

DANGEROUS THING BOUGHT INTO THE LAND According to this essential, the liability for the escape of a thing from one’s land provided the thing collected was a dangerous thing,7 a thing which is likely to do mischief if it escapes. In Rylands v Fletcher8, the thing so collected was a large body of water. The water collected in the reservoir was of a huge quantity and was thus regarded to be of potential danger.

ESCAPE The rule in Rylands v Fletcher shall apply, if the essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant is fullfilled. The requirement of escape was firmly set in the law by the House of Lords’ decision in Read v J. Lyons & Co Ltd9. The claimant was employed by the Ministry of Supply as an inspector of munitions in the defendants’ munitions factory and, in the course of her employment there, was injured by the explosion of a shell that was being manufactured. It was admitted that high explosive shells were dangerous but the defendants were held not liable because “escape” of the thing should be from a place where the defendant had control and occupation of land to a place which is outside his occupation and control. NON-NATURAL USE Water collected in the reservoir in such a huge quantity in Rylands v Fletcher was held to be nonnatural use of land. Keeping water for ordinary domestic purposes is ‘natural-use’. For the use to be non-natural it must be some special use bringing with it increased danger to others, and must not by the ordinary use of land or such a use as is proper for the general benefit of community. In Noble v Harrison, it has been held that trees on one’s land are not non-natural use of land. There 7 By A. P. Bhardwaj, The Pearson Legal Refresher for the Judicial Services Examinations, p.A21 8 [1868] UKHL 1, (1868) LR 3 HL 330. 9 (1946) 2 All E.R. 471

the branch of a non-poisonous tree growing on the defendant’s land, which overhung on the highway, suddenly broke and fell on the plaintiff’s vehicle passing along the highway. The branch had broken off due to some latent defect. It was held that the defendant could not be held liable under the rule in Rylands v Fletcher. It has been held in Sochaki v Sas10, that the fire in a house in a grate is an ordinary, natural, proper, everyday use of the fire place in a room. If this fire spreads to the adjoining premises, the liability under the rule in Rylands v Fletcher cannot arise. Generally an employer is not liable for the wrongful act done by an independent contractor. However, it is no defence to the application of this rule that the act causing damages had been done by an independent contractor. In Rylands v Fletcher itself, the defendants were held liable even though they had got the job done from the independent contractors. Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam11, an explosive made out of a coconut shell filled with explosive substance, instead of rising in the sky and exploding there, ran at a tangent, fell amidst the crowd and exploded, causing serious injuries to the respondent. One of the questions for consideration before the Kerala High Court was whether the appellants, who had engaged an independent contractor to attend to the exhibition of fireworks, would be liable. It was held that the rule in Rylands v Fletcher would be applicable because the explosive is an “extrahazardous” object. The persons using such an object are liable even for the negligence of their independent contractor.

10 (1947) 1 All E.R. 344 11 A.I.R. 1968 Kerala, 151

Chapter 5

EXCEPTIONS TO THE RULE Of Strict Liability The following exceptions to the rule have been recognized by Rylands v Fletcher and some later cases12:(i)

Default of the claimant

(ii)

Act of God

(iii)

Statutory Authority

(iv)

Consent of the claimant

(v)

Act of third party.

12

DEFAULT OF THE CLAIMANT If the damage is caused solely by the act or default of the claimant himself, he has no remedy. In Rylands v Fletcher itself, this was noticed as a defence. If a person knows that there is a danger of his mine being flooded by his neighbour’s operations on adjacent land , and courts the danger by doing some act which renders the flooding probable he cannot complain. 13 So too in Ponting v Noakes14, the claimant’s horse reached over the defendant’s boundary, nibbled some poisonous tree there and died accordingly and it was held that the claimant could recover nothing, for the damage was due to the horse’s own intrusion and alternatively there had been no escape of vegetation.

ACT OF GOD Where the escape is caused directly by natural causes without human intervention in “circumstances which no human foresight can provide and of which human prudence is not bound to recognize the possibility”, the defence of Act of God applies. 15 This was recognized by Blackburn J. in Rylands v Fletcher itself and was applied in Nichols v Marsland16. In this case the defendant for many years had been in possession of some artificial ornamental lakes formed up by damming up a natural stream. An extraordinary rainfall, “greater and more violent than any within the memory of the witnesses” broke down the artificial embankments and the rush of escaping water carried away four bridges in respect of which damage the claimant sued. Judgment was given for the defendant; the jury had found that she was not negligent and the court held that she ought not to be liable for an extraordinary act of nature which she could not foresee or reasonably anticipate.

STATUTORY AUTHORITY The rule in Rylands v Fletcher may be excluded by statute. Whether it is so or not is a question of construction of the particular statute concerned. In Green v Chelsea Waterworks Co17, for instance a main belonging to a water-works company, which was authorized by Parliament to lay the main, burst without any negligence on the part of the company and the claimant’s premises were flooded; the company was 13 Lomax v Stott(1870) 39 L.J. Ch. 834 14 [1894] 2 Q.B. 281 15 By S.P. Singh, Law of tort: Including Compensation Under the Consumer Protection Act,pp.280 16 (1876) 2 Ex.D. 1. 17 1894) 70 L.T. 547

held not liable. On the other hand, in Charing Cross Electricity Co v Hydraulic Power Co 18 where the facts were similar, the defendants were held to be liable and had no exemption to the interpretation of their statute. The distinction between the cases is that the Hydraulic Power were empowered by statute to supply water for industrial purposes, that is they had permissive power but not a mandatory authority, and they were under no obligation to keep their mains charged with water at high pressure, or at all. The Chelsea Waterworks Co were authorized by statute to lay mains and were under a statutory duty to maintain a continuous supply of water ; it was an inevitable consequence that damage would be caused by occasional bursts and so by necessary implication the statute exempted them from liability where there was no negligence.

CONSENT OF THE CLAIMANT Where the claimant has expressly or impliedly consented to the presence of the source of danger and there has been no negligence on the part of the defendant, the defendant is not liable. 19 The exception merely illustrates the general defence, volenti non fit injuria. The main application of the principle of implied consent is occupied by different persons and the tenant of a lower suffers damage as a result of water escaping from an upper floor, though it has to be said that the cases which have discussed this defence have tended to involve perfectly ordinary domestic fittings which would to modern eyes be a natural use of land.

ACT OF THIRD PARTY If the harm has been caused due to the 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. In Richards v Lothian20 some strangers blocked the waste pipes of a wash basin, which was otherwise in the control of the defendants, and opened the tap. The overflowing water damaged the plaintiff’s goods. The defendants were held not liable. Chapter 6

Rule of Strict Liability in India

18 1914] 3 K.B. 772 19 Gill v Edouin(1894) 71 L.T. 762 20 (1913) A.C. 263

The doctrine of Strict Liability evolved in India the case of MC Mehta Vs Union of India’s21 when Justice Bhagwati revolutionized the law of strict liability. He did not follow the principles laid down in Ryland V Fetcher on the ground that those principles are not in keeping with the present day jurisprudential thinking. Facts: Shriram Food and Fertilizer Industry, a subsidiary of Delhi Cloth Mills Limited, was engaged in the manufacture of dangerous chemical. In December 1985, large amounts of oleum gas leaked form one of the units in the heart of Delhi which resulted in the death of several persons. The leakage, resulted from the bursting of a tank containing oleum gas, was caused by mechanical and human errors. It created a scare among the people residing nearby and within two days, another leakage, a minor one, broke out as a result of oleum gas escaping from the joints of a pipe. On 6th December 1985, the District Magistrate, Delhi ordered Shriram to stop the manufacturing and processing of hazardous chemicals and fertilizers at their establishment in Delhi and to remove such chemicals and gases from Delhi. At this particular point, M.C. Mehta moved to Supreme Court to file PIL and claim for compensation for the losses caused and also demanded that the closed establishment should not restart. Judgment: M.C. Mehta v. Union of India, popularly known as the Oleum Gas Leak case, was decided by a 5-judge bench of the Supreme Court in 1986. It ruled that “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 overhead”. The court also emphasised that there are no exceptions to the rule of strict liability. Moreover, the amount of compensation would depend upon the capacity of the enterprise and not the earning capacity of the individual victims. The court held that any enterprise that is engaged in an inherently dangerous activity is `absolutely’ liable to compensate all those affected by an accident. They key feature of the judgment was the principle of `absolute liability’, in which no exceptions (such as an `act of God’) are brooked.22 In the Union of India vs Prabhakaran23, where the Supreme Court had extended its cover to public utilities like the railways, electricity distribution companies, public corporations and local 21 1987 SCR (1) 819 22 This meant absolute liability of the offender leaving no room for escape if found guilty.

bodies “which may be social utility undertakings not working for private profit”. In this case a woman fell on a railway track and was fatally run over. Her husband demanded compensation. The railways argued that she was negligent as she tried to board a moving train. The Supreme Court rejected this contention and said that her “contributory negligence” should not be considered in such untoward incidents — the railway has “strict liability”. The Supreme Court had applied this doctrine to the electricity mishaps in MPSEB vs Shail Kumari,24. An electric wire had snapped and fallen on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His widow demanded damages from the electricity authorities,. The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting this contention, the Supreme Court said: “It is no defence on the part of the board that somebody committed mischief by siphoning off energy to his private property and the electrocution was from such diverted line… Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.” The basis of the liability is the “foreseeable risk inherent in the very nature of such activity”. Another notable case was, State of Punjab (defendant) Vs. Modern Cultivators, LADWA (Plaintiff) 25

Facts: According to the records from the Supreme Court of India (2004), in 1960, a company by the name “Modern Cultivators” brought a case into court “against the State of Punjab”. The modern cultivators, suffered loss by flooding of its land as a result of a burst in a canal owned by the state. The company case was that there was breach of duty owing to negligence of state and water from the canal escaped to the fields “causing floods in modern cultivators' land”. In its defense, the state argued that there was no breach that took place because the canal had been repaired and the flooding was due to heavy rains that pounded the area during the month of September.

JUDGEMENT: The court consisting of judges; Sarkar A.K, Hidayatullah M and Mudholkar J.R, ruled against the states government fining it Rs 20, 000 but it was later revised to Rs. 14,130 by the high court “on basis of negligence”. In its ruling 23 May, 2008 24 2002 25 (2005)NBr 294

the court held that the damage to the company's field was caused by “the water from the canal and not from the river”. The Court agreed that the government had a duty of maintaining the canals and of being held liable for all damages caused by them (Linden Allen, pp 64). Sarkar held that one, “Law of negligence was applicable to that case because there would not have been a breach of duty had those people in management taken proper care and hence the breach itself remained a proof of negligence” (Supreme Court of India, 2004). Two documents called for in the court were produced deliberately a clear indication that “there was negligence in management of the canal”.

Chapter 7

Extent of Strict Liability The chief instances of strict liability rule may be divided into three classes: 1. Mistake of Law 2. Mistake of Fact 3. Accident Mistake of Law Ignorantia juris neminem excusat is a well known maxim which means ignorance of law is not an excuse. No one will be permitted to escape liability for his acts by pleading ignorance of law. Even if a man had actually no knowledge of the law in spite of his best efforts acquaint him with it he will be made liable for a breach of that law. The rigorous application of this law may seem to be unreasonable but there are three reasons for it. “Firstly, the law is considered to be definite and knowable. It is the duty of every man to know that part of the law which concerns him; therefore innocent and inevitable ignorance of law is impossible.”26 Secondly, if ignorance of law is accepted as an excuse the evidential difficulties for administration of justice will be insuperable. Every man would raise the plea to escape liability. And who can say certainly as to what was his condition of mind while committing the offence. “Thirdly, in most cases the law is derived from and is in harmony with the rules of natural justice. The law is a public declaration by the state to maintain those principles of right and wrong which have already secured its place in consciousness of men. Therefore, although a man may be ignorant of the fact that he is breaking the law he knows very well in those cases that he is breaking the rule of right.”27 The decision of Supreme Court in State of Maharashtra V. George illustrates the application of this rule. In this case a person was charged for bringing gold to India. In contravention of a notification amending the relevant rules published in the Gazette of India on 24th Nov 1962. He reached India on 28th Nov from Switzerland, and pleaded ignorance of the notification; In fact, he had no reasonable means to know the contents of the notification. The court held that since 26 Dr Avtar Singh, Dr Harpreet Kaur, An Introduction to Jurisprudence,p.874 27 Ibid. P.875

the notification was published in India, its ignorance by the accused was irrelevant and cannot be accepted as a defence.

Mistake of fact An error that is not caused by the neglect of a legal duty on the part of the person committing the error but rather consists ofan unconscious ignorance of a past or present material event or circum stance or a belief in the present existence of a materialevent that does not exist or a belief in the p ast existence of a material event that did not exist. A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were laboring under a mistake of fact, they never formed the required mens rea, and so will escape liability for offences that require mens rea. The law allows a defence: mistake of fact. Certainly, by reason of his ignorance of law no man will be excused, but it is commonly said that inevitable ignorance of fact is a good defense. In the case of Civil liability even if a person causes loss to another person innocently and under inevitable mistake of fact, he will be held liable for the loss. In criminal law, mistake of fact is in fact a good defense and absolute criminal liability for mistake of fact is an exception. Example: A police constable goes to arrest ‘X’ but arrest ‘Y’ thinking ‘Y’ to be ‘X’ he is not guilty of any crime. In the case of civil law, a mistake of fact involves absolute liability. According to Salmond: “It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interest of another, does so at his peril.” In the case R vs Prince28, a person who abducted a girl under legal age of consent was held criminally liable and the plea of inevitable mistake as to the age failed as a defence. This is so because the act of taking the girl away itself was wrongful.

Inevitable Accidents An act which is not done intentionally, may be done either accidently or buy mistake. When an act is unintentionally in respect of its consequences, it is aid to be done accidently. When an act is unintentionally in respect of its circumstances, it is aid to be done by mistake. For example if the driver of a vehicle drives over a man because of a sudden mechanical problem in the vehicle, his act is accidental, because the consequences is not intended. Unlike mistake, inevitable 28 1875, 2CCR 154

accident is commonly recognized by our law as a ground of exemption from liability. It is needful, therefore necessary to distinguish between the two. Accident is either culpable or inevitable. It s culpable when due to negligence, but inevitable when the avoidance of it would have required a degree of care exceeding the standard demanded by the law. Culpable accident is no defense, save in those exceptional cases in which wrongful intent is the exclusive and necessary ground of liability. Inevitable accident is commonly a good defense both in civil and in criminal law. The case of Stanley V. Powel is a leading decision on inevitable accidents as a defence. In this case the defendant while firing at a pheasant accidentally and without negligence shot the plaintiff with a pellet from his gun, it was held that he has a good defense Difference between the Strict Liability in India with respect to the principle of it evolved in the Rylands v. Fletcher • The rule in Rylands v. Fletcher requires non-natural use of land by the defendant and escape from his land of the thing, which causes damage. But the rule in MC Mehta v. Union of India is not dependant upon any such conditions. The necessary requirements for applicability of the new rule are that the defendant is engaged in hazardous or inherently dangerous activity and that harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity • The rule in Rylands v. Fletcher will not cover cases of harm to persons within the premises for the rule requires escape of the thing, which causes harm from the premises. The new rule makes no distinction between the persons within the premises where the enterprise is carried on and persons outside the premises for escape of the thing causing harm from the premises is not a necessary condition for the applicability of the rule. • Damages awardable where the rule in Rylands v. Fletcher applies will be ordinary or compensatory where as in Mehta’s case the court can allow exemplary damages and the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.