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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
plaintiffs 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.
3.4 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
neighbours reservoir, or whose cellar is invaded by the filth on his neighbours 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 neighbours
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, this we think is established to be the law
whether the things so brought, be beasts, or water, or filth, or stenches.
3.5 To the above rule laid down by Blackburn, J., in the Court of Exchequer Chamber, another
important qualification was made by the House of Lords when the case came before it. It was held
that for the liability under the rule, the use of land should be non-natural as was the position in
Rylands v Fletcher itself.
4.0
For the application of the rule therefore the following four 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) The thing that escaped in fact caused the damage.
4) It must be non-natural use of land
4.2 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 requirement of escape
was firmly set in the law by the House of Lords decision in Read v J. Lyons & Co Ltd. 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
MV Study Notes Tort Topic 6 No fault Liability
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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.
4.3 DAMAGE
The damage suffered by the plaintiff should be a direct consequence of the thing that escaped. In
Rylands case, it is the large quantity of water that has caused the damage by flooding the mines of
the plaintiff. In other words there has to be a causal link to the thing that escapes and the damages
In a later case the House of Lords has also added the factor of foreseeability . Please refer to
Cambridge water case (1994) 2AC 264
C. Similarly, in T.C. Balakrishnan Menon v T.R. Subramaniam AIR (1968)Ker 151, 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 extra-hazardous object. The persons using such
an object are liable even for the negligence of their independent contractor.
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V.
VI.
7. 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.This was recognized by Blackburn J. in Rylands v
Fletcher itself and was applied in Nichols v Marsland (1876) 2 Ex D1. 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.
8. 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 Co(1894) 70 LT 547,
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 claimants premises were
flooded; the company was held not liable. On the other hand, in Charing Cross Electricity Co v
Hydraulic Power Co (1914) 3 KB 772, 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.
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this defence have tended to involve perfectly ordinary domestic fittings which would to modern eyes
be a natural use of land.
INTRODUCTION
1.1
A very basic question that arises is what is this Absolute Liability? How is it different from Strict
Liability? There is a very simple answer to it; it is the application of Strict Liability but without
the exceptions. But what was the need of this new doctrine when already we have many
doctrines on liability and not just that we also have the mother law to all these principles that
is Nuisance?
1.2
The answer to this question is another question, what is the measure of liability of an
enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an
accident occurring in such industry, persons die or is injured? Does the rule in Rylands v.
Fletcher apply or is there any other principle on which the liability can be determined? Or will
the application of the Principle of Strict liability in Ryland v. Fletcher lead us to a justified
conclusion in matters of mass injury caused by such Industries?
1.3
The rule in Rylands v. Fletcher evolved in the 19th Century at a time when all these
developments of science and technology had not taken place. So therefore, it cannot afford
any guidance in evolving any standard of liability consistent with the constitutional norms and
the needs of the present day economy and social structure. We need not feel inhibited by this
rule which was evolved in this context of a totally different kind of economy. 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 the country and never the less the Law of Tort is dynamic in
nature. We cannot allow our judicial thinking to be constricted by reference to the law, as it
prevailed or prevails in England, about few hundred years back. The fact remains that the
meaning of Hazardous; has also changed and a variety of substances have evolved which one
could not think of then; due to the modernization of the world, science, technology, people,
industrial practices and in totality, law itself except the rule of doing justice. One can check the
merit of the argument, by comparing the substance for which the word Hazardous can be
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used, as it caused damage to an innocent third party both in Rylands v. Fletcher and M.C.
Mehta and others v. Union of India and Others. Then how can we still follow an archaic rule?
2.
Landmark Case: MC Mehta v Union of India & others AIR (1987) SC 1086
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or neglect or even he had knowledge of its existence. Of course, this rule applies to only nonnatural user of the land and it does not apply to things naturally on the land where the escape is due
to an act of God, and an act of stranger, or the default of the person injured, or where the thing
which escapes is present by the consent of the person injured, or in certain cases where there is
statutory authority.
2.6
Subsequent to the Ryland rule considerable case law has developed in England and other
common law countries, even as technology has been developing with rapid industrialisation and
growth of new technologies that included hazardous and inherently dangerous products and
industries. Yet, the Ryland rule continues to remain the only standard of liability.
2.7 Bhagwati, C.J., further states ..he Ryland rule eveolved in the 19th century at a time when all
these debelopments of science and technology had not taken place cannot afford any guidance in
eveolving any standard liability consistent with the constitutional norms and needs of present day
economy and social structure. We need not feel inhibited by this rule. Law has to grow in order to
satisfy the needs of fast changing society.As new situations arise, law has to be evolved in order to
meet the challenge of such new situations. Law cannot afford to remain static We cannot allow our
judicial thinking to be constricted by reference to the law as it prevails in England or for that matter in
any other foreign country. We no longer need the crutches of a foreign legal order.. We have to
build our own jurisprudence If it is necessary to construct a new principle of liability to deal with an
unusual situation, .there is no reason why we should hesitate to evolve such principle of liability
merely because it has not been done so in England
2.8 We are of the view that an enterprise which is engaged in a hazardous or inherently
dangerous industry which poses potential threat to the health and safety of the persons working in
the factory and residing in surrounding areas owes an absolute and non-delegable duty to the
community to ensure no harm results to anyone on account of hazardous or inherently dangerous
nature of the activity which it has undertaken. The enterprise must be held to be under obligation to
provide that its activities be conducted with the highest standards of safety and if any harm results
on account of such activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all reasonable care and that
the harm occurred without any negligence on its part
2.9 We would therefore hold that where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the
enterprise is strictly and absolutely liable to compensate all those who are affected by the accident
and such liability is not subject to any of the exceptions which operate vis--vis the tortious principle
of strict liability under the rule in Rylands v. Fletcher.
2.10 ...The measure of compensation in these kind of cases must be correlated to the magnitude
and capacity of the enterprise because such compensation must have a deterrent effect. The larger
and more prosperous the enterprise, greater must be the amount of compensation payable by it
for the harm caused on account of an accident in the carrying of the hazardous or inherently
dangerous activity by the enterprise.
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because of those propensities. Blackstone sought to rest the liability for trespass by the cattle on
negligent keeping. But the negligence was proved by the escape and was a fiction to save the face
of the will theory. The owner of a trespassing cow was liable even if it was let out of the pasture by a
trespassing third person giving rise to no fault liability or rather absolute liability with no exceptions
applicable. This shows that the practice of Absolute liability was very much there but there was no
distinction drawn between Absolute liability and Strict Liability as was drawn in India, that might be
the reason, as to why, Blackburn, J. kept on giving these examples of Absolute liability but ended up
giving those exceptions making it no more Absolute liability but, in the words of Sir Frederick Pollock
choked and crippled by exceptions.
So therefore it is not An altogether new concept, but only that it was not defined separately.
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flexibility to the extent that it does not even recognize the Act of God as a defense, it would prove to
be disastrous and hinder the free practice of the professionals as they will try to safeguard
themselves from any kind of risks.
4.6 Not just in case of professional liabilities but Absolute Liability would also be a failure in case it
is applied in a country that is developing in terms of Technology and Science. That might me the
reason as to why Absolute Liability (the way applied in India) is not applied and not accepted in US in
case of product Liability. They rather follow the principle of Strict Liability in almost every jurisdiction
in US. There the burden of proof lies on the plaintiff who must prove that the defect in a product was
the actual and proximate cause of damage, which is not the case in Absolute Liability.
4.7 It gives too much emphasis on enterprise liability which is yet another demerit as it promotes
the idea of full blow theory of Enterprise liability (without any fault) amounting to the reduction of
incentives from the victim to take care to avoid accidents or rather make him more careless because
if you see to the conditions applied in M.C.Mehta of must rule of Indemnifying regardless of being
careful and Deeper Pocket principle, it leaves the victim with no sense of responsibility for his own
act as he knows his faults would be compensated by someone else.
5.
5.1
The question of critic depends on a practical as well as theoretical question of interest and
importance, whether we are to generalize our whole system of tort liability by means of one principle
of liability for fault and for fault only? If we are to generalize on this basis then we would definitely
have to compare the justification of Fault and No Fault Liabilities and then come up with a calculated
liability which would cater to all our needs but for the time being we feel that all the application
of liabilities be it a fault liability or a no fault liability had satisfied the criteria of providing justice at
particular instances and given situation but may be generalizing one principle and recognizing it as
the only application in all circumstances would prove to be disastrous. So therefore, negating any
principle completely, until and unless it goes completely against the purpose of, according to us
would not be right, as the society is dynamic and so should be the Tort law as well. They might not be
complete individually but to an applied situation they might cater to our needs so therefore it is
difficult to come up with one and only one solution to the problem of liability.
5.2
When writing a critique on strict liability in law of torts we have to consider the present social
and economic scenario and that at the time when this rule was laid down. The rule in Rylands v
Fletcher has comparatively rarely been the basis of a successful claim in the English courts since 1900
and it has been said that it has hardly been taken seriously by the English courts and that it is hard
to escape the conclusion that the intellectual effort devoted to the rule by the judges and writers
over many years has brought forth a mouse. This has largely been because of the defences of acts of
a third party and statutory authority and above all the very restrictive attitude taken by many
twentieth century cases to the concept of non-natural use. The tendency was to say that common
large scale activities, especially services such as the supply of gas or water, do not constitute a nonnatural use of land even though their potential for causing damage is very great. Moreover in
determining whether there is a non-natural use, the courts had regard to the benefit accruing to the
public from the activity and this was an important element in the rejection of the rule in some of the
leading cases.
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5.3
In respect of storage of large quantity of water for agricultural purposes, the courts in India
have recognized an exception to the rule of strict liability. The reason for the exception is that storing
of such water may be necessary according to the peculiar Indian conditions. And again the concept of
non-natural use of land may vary from place to place.
5.4
In Madras Railway Co. v Zamindar, it has been held by the Privy Council that because of
peculiar Indian conditions, the escape of water collected for agricultural purposes may not be subject
to strict liability. The owner on whose land such water is collected is liable only if he has not taken
due care. In this case, there was escape of water as a consequence of bursting two ancient tanks
situated on the respondents zamindari. These tanks which had been in existence since ages, existed
not merely for the defendant alone, but for the benefit of thousands of his ryots. The escaping water
caused damage to the appellants property and three railway bridges were destroyed.
5.4.1 It was held that under these circumstances the strict liability rule would not apply as the
Zamindar was not negligent, he was not liable for the damage caused by the overflowing water. The
following observation of the Privy Council may be noted:The existence of these tanks is absolutely necessary, not only for the beneficial enjoyment of the
defendants estate , but for the sustenance of thousands of his ryots.
5.4.2 Looking, then, at the enormous benefit conferred on the public by these tank ; considering that
in this district at least, their existence is an absolute and positive necessity, for without them the land
would be wilderness, and the country a desert. Considering these things, I think that it would be
inequitable to impose upon the owners of the land, on which these tanks are situated, a greater
obligation than to use all ordinary precautions to prevent the water from escaping and doing injury to
their neighbours.
5.5
Strict and Absolute liability appears to be on the two extreme points of No Fault Liability.
Application of Strict liability with its exceptions where on one hand, would have let the case like
Bhopal Gas Leak Disaster, Indian Council For Enviro-Legal Action v. U.O.I. go escort free, with no
damages being paid to the victims who got no benefit from the companies but it very much
endangered their lives, on the other hand we have Absolute liability which is on the other
extreme, not even recognizing Act Of God as a ground for relief. At one point of time the common
law rules as to Absolute liability for damages or injury by animals were felt to be historical anomalies
destined to be ironed out by gradual extension of the idea of fault to all torts. Think for a situation
where the principle and remedy of Absolute Liability being applied for a case where due the
trespassing cow you are held liable even if it was let out of the pasture by a trespassing third person.
5.6
Some where a line has to be drawn between Absolute liability and strict liability as both has
their limitations but never the less they have some merits as well, at least when they are applied in
case laws, but for the time being, none of the principles are perfect or rather ready for application
and will always hold some criticism.
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