By Ragini Sehgal
The author is a first-year law student at UILS PU.
The word ‘liability’ in laymen’s terms refers to the state of being legally responsible for something. But the topic in light here is the concept of absolute and strict liability, an important element of the Law of Torts. According to the Law of Torts, a person is legally responsible to perform some duties and at the same time refrain from doing certain omitted acts, and if the person fails to do so, he/she is said to have caused damages to the other party, whosoever it may be. That person must compensate the other party for the damages caused and this duty to compensate is called ‘Tortious Liability’.
In terms of Criminal law, ‘Criminal Liability’ refers to the responsibility of a person towards the damage caused by his act if it is forbidden by the law in force and is performed with criminal intent. In this blog, Absolute and Strict Liability in terms of civil wrongs, i.e. Law of Torts, is discussed. These two concepts are very often confused with each other because they have similar characteristics with minute differences concerning their origin and characteristics which can be understood with an in-depth study of the topic.
THE ORIGIN OF STRICT LIABILITY AND ABSOLUTE LIABILITY
The concepts of ‘Absolute Liability’ and ‘Strict Liability’ come under the ambit of ‘no-fault liability’ which means that an individual/enterprise might be held liable without even being at the fault, i.e., even if a liability arises of a negligent act which was contracted to a third party by the defendant, then also he/she will be held liable for the same. In simple terms, it means that the defendant will be held liable even after the absence of negligence on his part. These two concepts are very often confused with each other because they have similar applicability which can be understood with an in-depth study of both the topics separately and then comparing them with each other.
The concept of ‘Strict Liability’ evolved in the year 1868, in the renowned Rayland’s v. Fletcher case which was decided by the House of Lords in London. In this case, Fletcher (the defendant) had a mill and a reservoir to power that mill on his land. The defendant hired an independent contractor for building the reservoir and the contractor negligently left a few mine shafts exposed which should have been filled for safety. Due to certain incident, water from the reservoir reached the neighboring mines of Rayland (the plaintiff) through the mine shafts and caused heavy damages to his mines. Rayland sued Fletcher for the damages. The Court held that it is not the independent contractor but the defendant who will be held strictly liable because he had got the reservoir constructed with his expenses at his own risk and for the same reason he will be held liable for any accident and escape of the material.
ESSENTIALS OF STRICT LIABILITY
There are three essentials for the incidence of ‘Strict Liability’ which can be understood based on the facts of the above stated Rayland’s v. Fletcher case.
The first essential is the presence of ‘Dangerous Material’ in the premises of the defendant. In terms of Strict Liability, ‘Dangerous Substance’ is defined as any substance, like explosives, toxic gasses, excessive quantities of a certain substance, having the capacity to cause mischief or harm, if it escapes. In the above-stated case, the defendant had got an artificial reservoir constructed in his premises, which had the potential of flooding neighboring areas if overflooded due to some reason.
Escape of Dangerous Substance:
The second essential is that the ‘Dangerous Substance’ should ‘escape’ from the premises of the defendant for holding them strictly liable. In the above-stated case, there was an escape of excessive amount of water from the defendant’s reservoir which reached the premises of the plaintiff through the mine shafts and caused damages.
The Unnatural Use of Land:
The third essential is the non-natural use of land. Installing something in the premises for the purpose which is not usual and needs to be taken really strict care of constitutes an unnatural use of land. In the above-stated case, the water stored in the reservoir was considered as an unnatural use of land. If the stored water was for household purposes, it would not have constituted non-natural use of land but as it was for powering the mill, it was considered as an unnatural use of land as it increased the degree of danger it could create for others.
BURDEN OF PROOF AND EXCEPTIONS TO STRICT LIABILITY
The burden of proof, in the case of Strict Liability, lies on the defendant which means that the defendant has to prove that they took a sufficient degree of care to prevent the incident for which they are held strictly liable. But the defendant also has some exceptions which can be used as a defense in the court and can prove advantageous to their case. These exceptions are as follows:
The Non-Escape of the ‘Dangerous Substance’:
If there is no escape of the dangerous material from the defendant’s premises, he will not be held strictly liable. This happened in the1894 case of Ponting v. Noakes where the defendant had some poisonous trees on his premises and the plaintiff’s horse entered the premises of the defendant. The horse ate a few leaves out of the poisonous trees and died eventually. The court held that the branches of the poisonous tree did not spread over the premises of the plaintiff and it was the plaintiff’s horse who itself entered to chew the leaves, hence, the defendant was not strictly liable.
Act of God (Vis Major):
A person cannot be held strictly liable for such acts which are beyond human control, cannot be contemplated, and are caused by the superior natural forces of God. This happened in the Nichols vs. Marsland case of 1876 where the defendant constructed an artificial lake by collecting water from a natural stream. Due to unpredictable and extra-ordinarily heavy rainfall, the lake overflew, its embankments broke and carried away 4 bridges of the plaintiff, causing heavy damages to the plaintiff. But the court, in this case, held that the defendant cannot be held liable as the unpredictable heavy rains were out of the defendant’s control as was an Act of God.
Volenti Non-Fit Injuria:
‘Volenti Non-Fit Injuria’ is a Latin term which means voluntarily consenting for some damages. When the plaintiff has freely/without pressure consented to the presence of danger, expressly or impliedly, and there has been no negligence on the part of the defendant, the principle of ‘Volenti Non-Fit Injuria’ is applied. The defendant cannot be held strictly liable in such cases.
Act of Stranger/Unknown Third Party:
Act of Stranger is where an unknown third party does such an act that may cause damage to the plaintiff’s property through the defendant’s property. Here stranger is that third party who is not under the control of the defendant. In the Rikard’s v. Lothian case, Rickard’s sink was blocked by an unknown third party in his absence and the tap was opened on purpose which led the water to overflow from the basin and reach the lower floors causing damages to the people living on those floors. But here as the act was performed by a third party and was not under the control of the defendant, he was not held strictly liable for the same.
This is the fifth and the last exception which states that an act done by the authority which is derived directly from the legislature, or any person working under the statutory authority has caused harm to the other person, then that will not come under any wrong and no action can be taken on that. Although some sort of compensation can be provided, if there is some provision for the same, by the state authorities, like providing rehabilitation to people whose residence gets destroyed due to construction of roads or railway tracks. This exception gives power to the statutory authority to do certain acts for the welfare of society and while doing the same if some harm is caused to some other persons, then also they will be immune from that particular act.
The concept of Absolute Liability evolved gradually in India. It all started with the ‘Oleum Gas Leak Case’ which is popularly known as the M.C. Mehta v. Union of India case of 1987. On the 4th and 6th of December, 1985, leakage of ‘Oleum Gas’ took place at one of the units of Shriram Foods and Fertilizers Industries in Delhi due to which several people died and one among the deceased was an advocate. A writ was filed against the fertilizer plant under Article 32 of the Indian Constitution by the way of a Public Interest Litigation. The court, in this case, refused to go by the principle of Strict Liability and evolved the principle of Absolute Liability so that the industry gets no exceptions as a defense.
Another case that contributed to the evolution of the principle of Absolute Liability was the ‘Bhopal Gas Tragedy’, which is popularly known as the Union Carbide Corporation v. Union of India case of 1991. On 2nd and 3rd December, 1984, a poisonous gas named methyl-iso-cyanide (MIC) leaked from a Bhopal unit of the US-based Union Carbide Company and killed over three thousand people, and caused heavy loss of property and environment. The leakage was of such severe nature that children in this area still are born with deformities. A case was filed in the US Court which failed, having stated that it had no jurisdiction over the US-based company’s branch in India. Due to the failure of this case, the Government of India enacted the Bhopal Gas Disaster Act of 1975 and sued the company after which the Court held Union Carbide Corporation ‘Absolutely Liable’ and ordered it to pay compensation to the victims.
In both these cases, mass destruction of lives took place, but Absolute Liability has the quality of being applied to even those cases in which a single death has taken place or the environment has got polluted at life-threatening levels due to negligent activities of some enterprise. The quantum of damages to be claimed is directly proportional to the size of the enterprise, in terms of Absolute Liability.
The reason for the evolution of the principle of Absolute Liability was basically to make the enterprises more responsible and aware of their duties towards society and the environment. Justice Bhagwati pointed towards the fact that the principle of Strict Liability evolved in the 19th century and needed some changes with the change in time and development of science and technology. He stated the importance of modifying certain laws according to certain societies based on the economy and social structures. Based on this reasoning, the concept of Absolute Liability was evolved and the Court gave two reasons to justify it. Firstly, Large enterprises cannot solely rely on profit maximization and owe some social duties and should compensate those who suffer as a consequence of their activities. Secondly, the enterprises alone can prove positive in discovering and preventing such accidents and hazards.
ESSENTIALS OF ABSOLUTE LIABILITY
Just as the Strict Liability, the principle of Absolute Liability too has certain essentials which were laid down in the M.C. Mehta v. Union of India case.
Enterprise as Defendant:
A characteristic of Absolute Liability is that it can be applied only when the defendant is an enterprise and cannot be applied against an individual. The logic given for this characteristic is that only a large enterprise is capable of causing such sort of damages as covered under the principle of Absolute Liability. Although the plaintiff can be either an individual or an enterprise.
Engaged in a Hazardous Activity:
For an enterprise to be held absolutely liable, it has to engage in some hazardous activity. In the ‘Bhopal Gas Tragedy’ case, the Union Carbide Corporation was involved in the large-scale production of dangerous chemicals, and also the unit was set up quite near to a residential area of Bhopal.
Escape ‘not’ Necessary:
The escape of ‘Dangerous Substance’ was essential under the principle of Strict Liability, but it is not so in the case of Absolute Liability. Even if some enterprise is holding or has the stock of something potential of causing damages, then too it can be held absolutely liable with no exceptions.
There are no exceptions in the case of Absolute Liability as indicated by its name, an enterprise is to be held ‘absolutely’ liable with no scope of escaping its Liability for the breach of its duty.
THE DISTINCTION BETWEEN ABSOLUTE AND STRICT LIABILITY
After studying both concepts in-depth, it is important to mark out the minute yet striking differences between the principles of Absolute and Strict Liability.
The Nature of Damages:
In the case of Strict Liability, the nature and quantum of damages are of compensatory nature. In other words, the defendant is bound to pay compensation proportionate to the quantum of damaged caused to the plaintiff. Whereas in the case of Absolute Liability, the quantum of damages is directly proportional to the size of the enterprise and the damages paid are greater than the actual amount of damages caused. The compensation provided is greater in amount as in such cases people lose their lives or environmental conditions become life-threatening.
Availability of Exceptions:
In the case of Strict liability exceptions like Act of God, Plaintiff’s fault, Act of Stranger, are available to the defendant as a defense. But it is not so in the case of Absolute Liability as there is no scope of taking defense. The defendants are held absolutely liable to pay compensation for damages under all circumstances.
Individual as Defendant:
In the case of Strict Liability, an individual can be held liable for the escape of dangerous material from his/her premise. But in the case of Absolute Liability, only an enterprise can be held liable because the degree of damages under ‘Absolute Liability’ can be caused by a large enterprise only, not by an individual.
Escape of Dangerous Material as an Essential:
In the case of Strict Liability, the escape of dangerous material is essential whereas, in the case of Absolute Liability, an individual can be held liable even if the dangerous material has not escaped from his/her premises.
The concepts of Absolute and Strict Liability are widely used principles in the Law of Torts. A few basic differences distinguish these concepts from each other yet they have similar applicability. The concept of Absolute Liability proved beneficial in India as it made profit-making enterprises more aware and responsible about their social duties. The evolution of this principle showed why ‘Law’ should be modified to suit the needs of different societies.
 Youssry Saleh & Partners, ‘Egypt: The Rule of No-Fault Liability’ (Mondaq, 21 September 2020) < https://www.mondaq.com/professional-negligence/986884/the-rule-of-no-fault-liability> accessed 1 December 2021.
 Rayland’s v. Fletcher (1868) LR 3 HL 330.
Manoj Kumar, ‘Strict & Absolute liability: With Special Reference to India’ (2010) 4(1) World Wide Journal of Multidisciplinary Research and Development.
Ponting v. Noakes (1849) 2 QB 281.
Nichols vs. Marsland (1876) 2 ExD 1.
‘Act of God-Law of Torts’ (Notes For Free, 16 December 2017) < http://notesforfree.com/2017/12/16/act-god-law-torts-notes/> accessed 1 December 2021.
Rikard’s v. Lothian  AC 263.
‘Statutory Authority as a Defence to Torts’ (Law Bhoomi, 21 August 2021) < https://lawbhoomi.com/statutory-authority-defense-of-state/> accessed on 1 December 1, 2021.
M.C. Mehta v. Union of India, 1987 SCR (1) 819; AIR 1987 965.
Union Carbide Corporation v. Union of India, 1991 4 SCC 584.
Sharman Dwibedi, ‘Strict and Absolute Liability’ (Legal Services India) <http://www.legalservicesindia.com/article/2155/Strict-and-Absolute-Liability.html> accessed 1 December 1, 2021.
Bharat Parmar and Aditya Sharma, ‘Absolute Liability: The Rule of Strict Liability in Indian Perspective’ Manupatra.
 cf. Dwibedi (n 11).
Nupoor Agrawal, ‘The Rule of Strict Liability and Absolute Liability in Indian Perspective’ (International Journal of Law Management and Humanities) < https://www.ijlmh.com/paper/the-rule-of-strict-liability-and-absolute-liability-in-indian-perspective/> accessed on 1 December 2021.