- Deoswaroop Gupta
Strict Liability through the eyes of the victims of Bhopal Gas Tragedy
Abstract: The notion of Strict and Absolute Liability has been a major principle in Tort law. The growth of this law in the Commonwealth countries has been slow, but fascinating. When it started, the English Legal System was haphazard in the manner and the judgements were provided on case-to case basis. But later, the English Judiciary introduced the laws, which later came to be known as legal precedents. These Precedents are now an integral essence of the English Common Law system. Tort law in India is also based on Common Law. Some of the laws have been localized to meet the requirement of the Indian Judiciary System. The Concept of Strict Liability developed in the classic case of Rylands v Fletcher, in 1868, while the Principle of Absolute Liability was provided by the Supreme Court of India in the landmark case of M.C. Mehta vs Union of India. In this paper, we will study both these principles of strict liability concerning both cases. The paper will also try to critically analyse the principle of Strict Liability and study the reasons for the need to evolve the concept of Absolute Liability.
Keywords: Strict, Absolute, Common Law, Tort Law.
Tort is defined as a unjust act or violation of a legal right which leads to culpability to which civil courts provide compensation in the form of damages. A Tort is a “conduct which is not straight or lawful, but on the other hand, twisted, crooked or unlawful” The law of Torts in India is built on the Common Law which is uncodified and is based on the principles of justice, equity, and good conscience. In India, the tort law was modified and has departed, when there was a need to develop on it so that the Courts could apply it in the Indian sense. There are important principles in torts such as trespass, defamation, vicarious liability, strict and absolute liability.Strict Liability has its origins in nuisance, but it differs from it because it deals with ‘escape and not interference. A simple example for no-fault liability is the owner of a tiger captivation centre, even if the tiger cages are of the best quality possible, the owner is liable if an animal escapes and causes damage and injury. Another example is a contractor hiring a demolition, Insufficient insurance by the subcontractor if he commits a mistake, the contractor is generally liable for the damage incurred. It was introduced in the famous case of Rylands v. Fletcher. This landmark judgement was provided in the Blackburn principle of Strict Liability. In the Court of Exchequer, Blackburn laid the rule for cases such as this one, which was later allowed by the Court in this case itself. Later on, the Indian Courts developed a new type of No-Fault Liability in the case of MC Mehta vs Union of India. This was a much-appreciated judgement that has led to the introduction of “Absolute Liability.” The judgement for the 5-judge bench was written by the CJI of India Mr.PN Bhagwati, who is considered as one of the biggest contributors to the progressive jurisprudence of our country.
Principle of Strict Liability:
The Principle of Strict Liability as we know got created through the landmark judgement of “Rylands v Fletcher”. This was the fundamental case in establishing the modern doctrine of Strict Liability. In this case, the defendants had hired an engineer and a contractor for the purpose of the construction of a pond to provide water to the factory with the authorization of the neighbouring plot’s keeper. When digging the land to build the pond, the labourers came across useless mine shaft, that were filled with mud but failed to tell the defendants and proceeded to build the reservoir. The reservoir was half filled with water, and it went all the way through to the adjoining land near the plaintiff's mines and caused damage.  Here Blackburn J. explained the rule which was to be applied in cases such as this one:
“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, he is prima facie responsible 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.”
If we are to critically analyse this statement, the inference is that if anyone brings an dangerous object or anything else, and that a thing such as this could create injury in a situation if it gets out of the land, the person is liable for the damage caused, even if the person from whose property such substance has got out has taken enough care and there has been no carelessness in any way. The rationale behind this is that the liability which is being imposed on the tortfeasor is not because of any negligence on his part, but due to the hazardous and extremely dangerous substance which is kept on his premises. Based on the Court Judgement, No-fault Liability came into existence.
Here are a few essentials of Strict Liability which are as follows:
A. Dangerous Substances: This means that the defendant is only accountable for the injury to the plaintiff if it was something dangerous that has escaped from his premises, the dangerous being the water that had collected in the reservoir on Fletcher's land. The rule states that things like gas, electricity, explosives, flagpole, noxious fumes, water from the sewage and rust can be defined as dangerous.
B. Escape: One more condition which needs to be fulfilled is the substance that gives rise to the injury must have broken out from the land of the respondent. It is also necessary that the thing should have broken free from the respondent’s control. Therefore, in a situation where there the branches of the tree, which are poisonous, creep their way out to the adjacent person’s land, would amount to an breakout if some cattle lawfully while strolling on the neighbour’s land eats the poisonous bearings of the tree, the respondent would be accountable under the rule of strict liability. In Read v Lyons, the plaintiff was a worker in the defendant’s factory which made ammunition. While working there, a shell suddenly exploded, and the plaintiff was injured. But here, the defendant would not be held accountable because there was not a single percent of negligence on his behalf. The principle established in the case of Rylands v Fletcher could not be applied here because the dangerous thing, which had hit the plaintiff, had not escaped from the factory.
C. Artificial use of the plot: For the application of strict liability, it is necessary that there should be an artificial utilization of the plot. Within the case of Rylands v. Fletcher, the water which accumulated in the pond like structure was an artificial utilization of the pond. Collection of rain for personal utilization is natural use. However, collecting water with the motive of powering up a mill was a non-natural use by the Court. Once the term “non-natural” is proved; it is important that there would have been a special use of the plot which would have increased the danger.
There are a few limitations to the principle of Strict Liability including the complainant’s own wrong, Act of a third Party and consent of the plaintiff.
The rule of Absolute liability is a type of non-liability but without the exceptions that can be found in strict liability. The Supreme Court of India, in 1985, while dealing with the case of MC Mehta vs Union of India, there were claims of a gas leak in the December of 1985, in a unit of the famous food and fertilizer company, Shriram, which was owned by Delhi Cloth Mills. The issue was that some of the industrial oleum gas ended up in a certain area in Delhi. A large quantity of people was affected by the leak. The Supreme Court then developed the absolute liability rule on the basis of the strict liability rule and declared that the respondent is to be answerable for the damage caused without taking into account the limits to the strict liability rule. The Court observed that the 19th Century old principle of Strict Liability could not be followed here, and therefore it would evolve a new principle which would be suitable for the socioeconomic as well as the environmental conditions in India. The Court then made the principle of liability without fault as essential element of the Indian Tort Law in accordance with the principle of strict liability as was put down in Rylands v Fletcher. It also explicitly mentioned that this new rule of no-fault liability was not follow any of the mentioned conditions under the rule of Rylands.
A. Criticism of Strict Liability-
Jurists like Salmond and Pollock have opposed the principle of Strict Liability by calling it as “Uncertain, “disputed” and needlessly harsh.” While the American, as well as the English Courts, have focused on the problem that whether the concept of strict liability can be considered like the tort of negligence, in India, the question was whether this concept has been incorporated as a part of Absolute Liability.
After Strict liability was established in the Rylands Case, there were lots of cases filed under this same rule. After dealing with many of these cases, then the House of Lords thought the laws that were being coded in the 19th Century were unsuitable to the upcoming era. The Courts found that most of the time, most of the important of the principle of Strict Liability were not relevant and therefore the Judges did not find the cases to be Justifiable. For instance, if we take the case of Cambridge water co. Ltd v. Eastern Countries Leather Plc , the plaintiff here was an organization licensed to supply water. The respondent was a company which produced fine leather. The defendant had used a delicate solvent called perchloroethylene (PCE) that mixed into the soil and slowly with the plaintiff's well over 9 months. After the chemical was discovered, the plaintiff's well was no longer healthy and could not be legally used. When claiming damages, The Court observed by denying the assertion that this type of leakage was unpredictable by the defendant and therefore he cannot be held liable for the damage alleged.
Similarly, in the case of Transco plc vs Stockport MBC,The plaintiff laid a gas pipeline along a ridge on a section of a useless railway line. The respondent installed an apartment building that was provided with water via a water pipe that the defendant built between the house and the water pipe. The aqueduct was broken once and drained water, causing the dam to collapse. In the present case, the question arose whether the principle in the case of Rylands v Fletcher was applicable to that situation. The court ruled that the municipality was not liable for any damage as the usage by the municipality was a natural use of the land. v Fletcher has limits and cannot be applied to a burst pipe owned by the city council.
Even though the application of Strict Liability has reduced in India since the evolution of the Principle of Absolute Liability, it is nevertheless still relevant today. This is largely because the application of the principle of absolute responsibility relies on the company ‘operating in a dangerous or inherently threatening industry’ which shows a potential threat to the overall fitness and safety of people working in the place or staying in the vicinity. The principle of strict liability applies if a person brings and keeps 'anything' that could cause damage if they flee. In addition, something like this must be an unnatural use of the land. As a result, there may be situations where a person uses your property for an unnatural purpose. That it is not "dangerous or inherently dangerous", for example to build a lump or a small dam on the property.
Thus, the doctrine of doer's peril and no-fault liability were archaic principles used by judges at a time when the law relating to negligence was not properly developed, as the law of negligence is primarily of modern growth, and the great judges who sat to decide Rylands vs. Fletcher had a hazy understanding of its scope and power. As Professor E.R. Thayer correctly points out: “... the law has at its disposal in modern negligence law the means of satisfying in most cases, the very needs that more eccentric doctrines are invoked to address meet.”
The case of Union of India v Prabhakaran Vijaya Kumar, where the Apex Court observed that in the Rylands v Fletcher case it was later explained to include a lot of substances likely to cause mischief on escape, regardless of whether they were dangerous in and of themselves. The Court provided examples such as water, electricity, coal mine spoils, and flagpoles. Furthermore, even though the principle has been misapplied, the courts have used strict liability to compensate those who have died because of electrocution from live wires, plaintiffs who fell down manholes, and even those who were injured by Vehicle collisions.
Based on the foregoing ideology, it is easy to see why the concept of no-fault liability and the doctrine of acting at peril are now considered obsolete, and why there is a trend toward a “gradual reduction in the number of cases where absolute liability is imposed on non-culpable defendants.”
The Concept of Strict Liability has evolved through the ages. It started as a no-fault liability, in cases wherein the respondent was to be held accountable even when there was no fault on his account. But then, the Courts felt that there was a need for this rule to be amended to satisfy the demands for the law. The idea making a new principle was to clearly acknowledge that a who stores dangerous materials in his facilities is answerable for the wrong if such a thing breaks out, creates damage; this idea applies if there is no negligence on the part of the person responsible for the preservation and the obligation to prove one’s assertion always rests on the respondent to show that he is not liable, while the principle of absolute liability is that if a company is involved in a dangerous or essentially dangerous work and causes injury to someone because of an mishap or activity that is inherently dangerous, that Company is strictly and unreservedly responsible for compensating all those affected by the accident.
1. Lumen Learning, https://courses.lumenlearning.com/wmopen-introbusiness/chapter/tort-law-liability-and-damages/ (last visited Sept. 27, 2021)
2. Rylands v Fletcher,  UKHL 1, (1868) LR 3 HL 330
3. Divyam Aggarwal, Conundrum of Absolute Liability in Indian Environmental Jurisprudence, Vol.3, Jurisperitus L.J, 2-3, 2020.
4. MC Mehta v Union of India, 1987 SCR (1) 819; AIR 1987 965.
5. Aggarwal, supra note 1, Conundrum of Absolute Liability in Indian Environmental Jurisprudence.
6.  UKHL 1, (1868) LR 3 HL 330.
7. Deepa Badrinarayana, The Jewel in the Crown: Can India's Strict Liability Doctrine Deepen Our Understanding of Tort Law Theory? 55 U. Louisville L. REV. 25 (2017).
8. Read v Lyons  AC 156
9. Yashu Bansal, No Fault Liability, Academike, (Sept. 29, 2021, 12:08 AM), https://www.lawctopus.com/academike/no-fault-liability/
10. MC Mehta vs Union of India, supra note at 4.
11.  Rebecca Furtado, Concept of Strict Liability and Absolute Liability, iPleaders (Sept.2021, 9:03 PM), https://blog.ipleaders.in/concept-strict-liability-absolute-liability/#_ftn6
12. Aditya Swarup, Strict Liability, and Its Misapplications in India, 1 NLUD J. LEGAL Stud. 74 (2019).
13. Cambridge water co. Ltd. V. Eastern Countries Leather Plc, (1994) 1 All ER 53 (HL)
14. Transco plc v. Stockport MBC, (2003) 3 WLR 1467 (HL)
15. Lawteacher, https://www.lawteacher.net/cases/transco-v-stockport.php,( Sept. 30, 2021, 7: 52 PM)
16. Swarup, Supra Note at 12, (Strict Liability, and Its Misapplications in India)
17. Union of India v Prabhakaran Viaya Kumar (n 8) 
18. Jeremiah Smith, Tort and Absolute Liability: Suggested Changes in Classification, 30 HARV. L. REV., 409, 417(1917).
19. Indian Legal Solution, https://indianlegalsolution.com/nature-and-definition-of-torts/ (last visited 22nd Oct,2021)
Footnoting:  Indian Legal Solution, https://indianlegalsolution.com/nature-and-definition-of-torts/ (last visited 22nd Oct,2021)  Rylands v Fletcher,  UKHL 1, (1868) LR 3 HL 330.  Divyam Aggarwal, Conundrum of Absolute Liability in Indian Environmental Jurisprudence, Vol.3, Jurisperitus L.J, 2-3, 2020.  MC Mehta v Union of India, 1987 SCR (1) 819; AIR 1987 965.  Aggarwal, supra note 1, Conundrum of Absolute Liability in Indian Environmental Jurisprudence.  Rylands, supra note at 2,  UKHL 1, (1868) LR 3 HL 330.  Deepa Badrinarayana, The Jewel in the Crown: Can India's Strict Liability Doctrine Deepen Our Understanding of Tort Law Theory? 55 U. Louisville L. REV. 25 (2017).  Read v Lyons  AC 156  Yashu Bansal, No Fault Liability, Academike, (Sept. 29, 2021, 12:08 AM), https://www.lawctopus.com/academike/no-fault-liability/  MC Mehta vs Union of India, supra note at 4.  Rebecca Furtado, Concept of Strict Liability and Absolute Liability, iPleaders (Sept.2021, 9:03 PM), https://blog.ipleaders.in/concept-strict-liability-absolute-liability/#_ftn6  Aditya Swarup, Strict Liability, and Its Misapplications in India, 1 NLUD J. LEGAL Stud. 74 (2019).  Cambridge water co. Ltd. V. Eastern Countries Leather Plc, (1994) 1 All ER 53 (HL)  Transco plc v. Stockport MBC, (2003) 3 WLR 1467 (HL)  Lawteacher, https://www.lawteacher.net/cases/transco-v-stockport.php,( Sept. 30, 2021, 7: 52 PM)  Swarup, Supra Note at 12, (Strict Liability, and Its Misapplications in India)  Union of India v Prabhakaran Viaya Kumar (n 8)   Jeremiah Smith, Tort and Absolute Liability: Suggested Changes in Classification, 30 HARV. L. REV., 409, 417(1917).
Deoswaroop Gupta, law student from, KIIT School of Law, Bhubaneswar.