Tort Law Class Outline: Strict and Absolute Liability

(Sources: Winfield et al., R&D et al.)

 Strict and Absolute liability impose liability regardless of absence of negligence. They are
not independent torts. They are rules of liability. The rule of strict liability is generally
categorized as a “sub-species” of the tort of nuisance

Strict Liability

 Strict liability is also known as the Rylands v. Fletcher Rule

 A defendant can be held liable even if she/ he has not acted negligently. That is why strict
liability is also called no fault liability (i.e. liability even without any fault on part of the
defendant)
 Since Rylands v. Fletcher was decided a long time back in (1868), the principle of strict
liability has evolved. A number of subsequent cases have developed/ modified the
principle of strict liability to suit the changing circumstances
 See the extract from Rylands v Fletcher in Winfield et al. para 16-002
Quote from the Court of Exchequer Chamber (affirmed by the House of Lords):
We think that the true rule of law is, 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 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 escape was the consequence of vis major, or the act of
God
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 of his neighbour's privy, or whose
habitation is made unhealthy by the fumes and noisome vapours of his
neighbour's alkali works, is damnified without any fault of his own; and it seems
but 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 will be mischievous if it gets
on his neighbour's, should be obliged to make good the damage which ensues if
he does not succeed in confining it to his own property.
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 accrue, or
answer for the natural and anticipated consequence. 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

 Rylands v Fletcher: water reservoir case

Facts: D, a mill owner employed independent contractors to build a reservoir on the land
to supply water to the mill. During the course of constructing the reservoir, the
contractors came across some old shafts and passages on D’s land. They appeared to be
 filled with earth, so the contractors did not block them up. When water was filled in the
reservoir, it burst through the shafts and passages and flooded C’s mines. D was not
negligent, although the contractors were. C sued D. The HoLs held D liable.
 Elements of strict liability:
i) Dangerous thing:
- can be fire, gas, oil, noxious chemicals etc.
- Exceptionally dangerous or risky thing kept/ brought on his land by the defendant
- The defendant ought to have reasonably known that an escape of such a thing holds
exceptionally high risk of harm if it escapes
- Requirement is likelihood of high damage if the thing escapes, and not likelihood of
damage
- foreseeability concept important (Cambridge Water case): the kind of damage as result
of the escape needs to be foreseeable

ii) Escape
- Escape of such a thing from the place in control of defendant to an area/ land beyond the
defendant’s control e.g. branches of a poisonous tree protruding on the neighbor’s air
space and the cattle present there die after eating the leaves of the poisonous tree (Ponting
v. Noakes 1994)
-Case: Read v. Lyons & Co Ltd (1947): C was an employee in D’s ammunition factory.
During the course of employment, she was injured by the explosion of a shell that was
being manufactured there. She (C) sued D (the factory owners). D was held not liable as
there was no escape of thing inflicting injury from the land occupied/ controlled by the D.

iii) non-natural/ unnatural use of land

- There has to be some “special use” of land that can be dangerous to others, and not
merely “ordinary use”.
Important Case: Rickards v. Lothian (1913):
Facts: The claimant ran a business from the second floor of a building. The defendant
owned the building and leased different parts to other business tenants. An unknown
person had blocked all the sinks in the lavatory on the fourth floor and turned on all the
taps in order to cause a flood. This damaged the claimant’s stock and the claimant
brought an action based on the principle set out in Rylands v Fletcher.
Held: The defendants were not liable. The act which caused the damage was a wrongful
act by a third party and there was no non-natural use of land.

- non-natural use
e.g. bulk storage of water, chemicals, combustible substances etc.

- natural or ordinary use of land is excluded from strict liability

e.g. gas pipes in a house, residential water supply, electricity wiring in a house/ building

- the concept of non-natural use of land changes over time

Case: Musgrove v. Pandelis (1919):
Facts: Due to negligence of D’s servant, D’s car that was kept in the garage caught fire
and destroyed the entire building.
 Held: Keeping a car in a garage with petrol in the tank was a non-natural use of land. The
car with the petrol tank was a dangerous thing for the purposes of Rylands v Fletcher and
therefore found liability, inter alia, because the fundamental principle was held to be that
the Defendant should not use his property in such a way as to injure his neighbour

iv) Land
- the defendant need not have an interest in the land from where the dangerous thing
escapes. E.g. in Rylands v Fletcher, the defendant was a mere licensee of the land on
which the reservoir was constructed. Same is the case where the defendant has a franchise
and statutory right
- the claimant must possess an interest in land or de facto exclusive possession to which
the dangerous thing escapes

v) Strict liability is generally not applicable to personal injury.

Now, the ambit of strict liability has been narrowed, and in many jurisdictions, it regarded
to be a sub-species of the tort of nuisance

Defences to Strict Liability:

1. Act of Stranger
- Important Defence: unforeseeable act by a third party/ stranger the strict liability rule does not
apply. The defence is not available for a reasonably foreseeable consequences (16-025).

Rickards v. Lothian (1913):

Facts: The claimant ran a business from the second floor of a building. The defendant owned the
building and leased different parts to other business tenants. An unknown person had blocked all
the sinks in the lavatory on the fourth floor and turned on all the taps in order to cause a
flood. This damaged the claimant’s stock and the claimant brought an action based on the
principle set out in Rylands v Fletcher.
Held: The defendants were not liable. The act which caused the damage was a wrongful act by a
third party and there was no non-natural use of land

- Defendant strictly liable for the negligence of employees and independent contractors

2. Consent of the Claimant

- E.g. tenants sharing common water source are deemed to consent to the presence of water in the
source

3. Statutory Authority
- If an act is done under the sanction of a statute, defense against strict liability is available
- Strict liability can be excluded through a legislative statute

4. Act of God
- the escape occurs due to natural causes without human intervention - Extraordinary natural
events.
In Tennent v Early of Glasgow, it was held that the defence of Act of God would be available in
“circumstances which no human foresight can provide against and of which human prudence is
not bound to recognize the possibility.”
Nichols v Marsland (1876): D was in possession of ornamental artificial lakes formed by
damming up a natural stream. An extraordinary rainfall occurred that was “greater and more
violent than any within the memory of witnesses.” It broke down the lakes’ embankments- the
escaping water washed down four bridges of C. C sued D.
D could successfully take the defence of act of God. She was not negligent and she could not be
held liable for an extraordinary act of nature that could not be reasonably anticipated.
Gradual change in law: restricted ambit of the defence
Nichols v Marsland criticized (for the application of the defence of act of god) in
Greenock Corp v Calendonian Ry (1917): D dammed up a natural stream to make a paddling
pool for children. Extraordinary rainfall- water overflowed from the pool on to a public stream
and damaged the property belonging to C. If the stream was not dammed up that water would
have been carried off by the stream without causing damage.
Held: D could not avail the defence of act of god. D were liable. It was not an act of god.
Held: It was the D’d duty “to work as to make the occupiers on a lower level as secure against
injury as they would have been had the nature not been interfered with”

Similar considerations apply to an extraordinary high tide, wind, lightening, earthquake,

cloudbursts etc.

 Remoteness of damage:
General rule: D cannot be held liable ad infinitum under the SL rule. The D “is liable for all the
damage that is natural consequence of its escape”
What appears in the subsequent cases in the reasonable foreseeability test of Wagon Mound 1
case (1961) (such as the Cambridge water case).
Natural and reasonable mean similar things

 Strict Liability: India

- There are some exceptions to the rule of strict liability in India. E.g. storing water for
agricultural purposes does not incur strict liability.
Case: Madras Railway Co. v. Zamindar (1974): there was escape of water as a consequence of
bursting two ancient tanks situated on the respondent’s 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 appellant’s property and three railway
bridges were destroyed . There was no negligence on part of the Zamindar. He was not held
strictly liable
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. Privy Council noted:-
“ The existence of these tanks is absolutely necessary, not only for the beneficial enjoyment of
the defendant’s estate , but for the sustenance of thousands of his ryots. Looking, then, at the
enormous benefit conferred on the public by these tanks ; 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.”

Absolute Liability (Ratanlal Dhirajlal)

 None of the exceptions apply. The liability is absolute
 The rule of absolute liability was laid down in the case of M C Mehta v. Union of India
(1987)- case involving leakage of oleum gas from a unit of Shriram Foods and Fertilizers
Industries in Delhi. Decided under the shadow of Bhopal disaster
- Industries engaged in “hazardous and inherently dangerous” activities to be “strictly and
absolutely liable”
- Look up the relevant parts of the judgement where the court recognizes the need to go
beyond the 19th century rule of Rylands v. Fletcher to meet the needs of the contemporary
society:

The Rylands v Fletcher “rule evolved in the 19th Century at a time when all these
developments of science and technology had not taken place cannot afford any
guidance in evolving any standard of liability consistent with the constitutional
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”
“We cannot allow our judicial thinking to be constricted by reference to the law
as it prevails in England or for the matter of that in any other foreign country. We
no longer need the crutches of a foreign legal order.”

We have to develop our own law and if we find that it is necessary to construct a
new principle of liability to deal with an unusual situation which has arisen and
which is likely to arise in future on account of hazardous or inherently dangerous
industries which are concomitant to an industrial economy, there is no reason why
we should hesitate to evolve such principle of liability merely because it has not
been so done in England.

We are of the view that an enterprise which is engaged in a hazardous or

inherently dangerous industry which poses a potential threat to the health and
safety of the persons working in the factory and residing in the surrounding areas
owes an absolute and nondelegable duty to the community to ensure that 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 an
obligation to provide that the hazardous or inherently dangerous activity in which
it is engaged must 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.

- The court justified the rule of absolute liability on such enterprises on two grounds:
1. a profit making enterprise handling hazardous substances or carrying on inherently
dangerous activity has social obligation to compensate those affected by the hazardous
activity carried on for private profit, and should be permitted to conduct business only on
the condition that it follows highest standards of safety and in case of any injury due to its
hazardous or inherently dangerous activity, it should absorb all the costs of
compensation to those who are affected.
2. a particular enterprise is in the best position to assess and take action against risks of
damage

- The amount of compensation payable by such as enterprise is directly proportionate to

the economic capacity of the enterprise: punitive compensation
“the measure of compensation in the kind of cases referred to in the preceding
paragraph must be co-related to the magnitude and capacity of the enterprise
because such compensation must have a deferent effect. The larger and more
prosperous the enter- prise, the greater must be the amount of compensation pay-
able by it for the harm caused on account of an accident in the carrying on of the
hazardous or inherently dangerous activity by the enterprise.”

 Case: Union Carbide Corporation v. Union Of India (1987)

Facts: Night of 2-3 December, 1984. 40 tons of noxious gaseous mix (MIC) escaped
from a UCIL plant. Over 3000 immediately killed. Many succumbed subsequently. Many
more suffered disability
Settled: 470 million (initial claim 3 billion)

Strict Liability Absolute Liability

Principal Case Rylands v. Fletcher (1868) MC Mehta v. Union of India (1987)-

(case laying the oleum gas leak case
down the rule)

Primary Some defenses are available to the It is absolute- so no defense available

Difference: defendant to the defendant

Applicability Common law countries generally Only in Indian tort law

including India (but, there in other branches of laws in
other countries, as well as in some
areas of space law)
Escape Escape of the dangerous thing Escape of the dangerous thing from
from the land of the D is the land of the D is not necessary
necessary