One Liner :: Res Ipsa Loquitor,
Strict Liability and Absolute liability they all spring from the same doctrinal
foundation in that they assist Plaintiffs’ in establishing liability when
direct proof is beyond their reach, while reducing defences of the tortfeasor
IN ASCENDING ORDER.
Act of negligence give rise to
Torts. Res Ipsa Loquitor is when
the negligence is Writ Large and speaks for itself, nothing changes, it simply
shifts the burden of proving diligence upon the tortfeasor. All defences are available for the tortfeasor,
though. Inference of Negligence may be dispelled in Res Ipsa Loquitor by
an affirmative showing of proper care. In
strict liability, only three defences are available [plaintiff’s fault, vis
major and act of third party]. In
absolute liability, no defences are available and the liability is absolute.
Therefore, strict and absolute liability are also “no fault liability”.
Res Ipsa Loquitor :: A
was passing by the boundary of B’s Factory when a whistle traveling in
projectile motion and originating from B’s Factory hit A’s head who died. A will sue B for negligence and the principle
of Res Ipsa Loquitor would apply. As in, the cause of the accident to the best
of the knowledge of B, A shall need to prove only the accident and B needs to
rebut negligence. The burden shifts. B
in his defence can plead anything under the sun.
Now, we will see how the position
of B in the example above changes when the definition of liability changes from
Res Ipsa Loquitor to Strict Liability to Absolute Liability. But then let’s revise the concept of Strict
Liability to begin with.
Strict Liability,
doctrine of
Strict liability applies to three
categories of cases 1) Animal attacks (both person or property; pet or animal farae
naturae; 2) Abnormally dangerous activity; and, 3) Product Liability. The Rule of Strict Liability originated in the
case of Rylands vs. Fletcher [1868] UKHL 1; L.R. 3 H.L.
330 (1868) and it is imminent that we understand Reylands.
Rylands vs. Fletcher :: Fletcher
(plaintiff) leased several underground coal mines from land adjacent to that
owned by Rylands (defendant). Rylands
owned a mill, and built a reservoir on his land for the purpose of supplying
water to that mill. Rylands
employed competent engineers and contractors to build the reservoir. In the course of building the reservoir, these
employees learned that it was being built on top of abandoned underground coal
mines the shafts of which joined up with Fletcher’s mine.
Despite, instead of blocking the
shafts, the contractors left it as it were.
This fact was unknown to Rylands. After the reservoir was completed, it broke
and flooded Fletcher’s coal mines. This caused damage to Fletcher’s
property, and Fletcher brought suit against Rylands. Justices in the lower court differed as to whether
Rylands should be liable, and the decision was appealed to the Court of
Exchequer Chamber. There, Rylands
was held strictly liable for damage caused to Fletcher’s property by
water from the broken reservoir. Rylands
appealed. The House of Lords upheld
strict liability upon Rylands and hold him liable.
Thus there are five
ingredients for the Rule of Rylands vs. Fletcher to apply 1) Accumulation.
The defendant must bring hazardous material on his land and keep it there. If
the thing is already on the land or is their naturally, Rylands vs. Fletcher
is not attracted. [Giles vs. Walker 1890 24 QBD 656; ]. However,
the thing that escapes may not be the thing accumulated. [Miles vs. Forest Rock
Granite 1918 34 TLR 500]. 2) Likely to do mischief. [Hale vs. Jennings
Bros 1938 1 All ER 579]. 3) Escapes. 4) Non -natural use. [Rickards
vs. Lothian 1913 AC 263] [Transco vs. Stockport MBC 2004 1 All ER 589] [But
See, Sochacki vs. Sas 1947 All ER 344 (An open fire in a
domestic fire grate is not non-natural use of land)]. 5) Remoteness of
damage. Rylands vs. Fletcher is subject to the rules of remoteness
of damages. [Cambridge Water vs. Eastern Counties Leather 1994 2
AC 264].
Some of the common defences
available to the Defendant are 1) Act of Stranger. [Box vs. Jubb
LR 4 Ex Div ] [Ribee vs. Norrie 2000 EWCA Civ 275]. 2) Third
Party Intervention. [Rickards vs. Lothian 1913 AC 263]. 3) Act
of God [Nichols vs. Marsland 1867 2 Ex D 1]. 4) Statutory
Authority [Green vs. Chelsea Waterworks Co 1894 70 LT
547]. 5) Consent/Benefit. If the Defendant received benefit from the
things accumulated it is a deemed consent. [Peters vs. Prince of
Wales Theatre 1943 KB 73].
The Rule of Rylands vs. Fletcher
has been recognized by the courts in India. The Hon’ble Supreme Court has held
thus:
AIR 2002 SC 551
Para 8: Even assuming that
all such measures have been adopted, a person undertaking an activity involving
hazardous or risky exposure to human life, is liable under law of torts to
compensate for the injury suffered by any other person, irrespective of any
negligence or carelessness on the part of the managers of such undertakings.
The basis of such liability is the foreseeable risk inherent in the very nature
of such activity. The liability cast on such person is known, in law, as
"strict liability". It differs from the liability which arises on
account of the negligence or fault in this way i.e. the concept of negligence
comprehends that the foreseeable harm could be avoided by taking reasonable
precautions. If the defendant did all that which could be done for avoiding the
harm he cannot be held liable when the action is based on any negligence
attributed. But such consideration is not relevant in cases of strict liability
where the defendant is held liable irrespective of whether he could have
avoided the particular harm by taking precautions.
Para 9: The doctrine of
strict liability has its origin in English Common Law when it was propounded in
the celebrated case of Rylands V/s. Fletcher (1868 Law Reports (3) HL 330),
Blackburn J., the author of the said rule had observed thus in the said
decision :
"The rule of law is that
the person who, for his own purpose, 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 so he is prima facie answerable for all the damage which is the
natural consequence of its escape."
ABSOLUTE LIABILITY
By analysing the 19th
Century rule laid in Ryland vs. Fletcher, the Apex Court in M.C.
Mehta vs. Union of India 1987 SCR (1) 819 (aftermath of Shriram Food
and Fertilizer oleum gas leak) and Union Carbide vs. Union of India
AIR 1992 SC 248 (Bhopal Gas leak Case)the Hon’ble Supreme Court through Justice
Bhagwati applied the rule of Absolute Liability. The difference between Strict and Absolute
liability rules as laid down by Supreme Court in M.C. Mehta (Supra),
has been explained in Ratanlal & Dhirajlal : Law of Tort 26th
edition at pg. 520:
Firstly, In Absolute
Liability only those enterprises shall be held liable which are involved in
hazardous or inherently dangerous activities, this implies that other
industries not falling in the above ambit shall be covered under the rule of
Strict liability.
Secondly, the escape of a
dangerous thing from one’s own land is not necessary; it means that the rule of
absolute liability shall be applicable to those injured within the premise and
person outside the premise.
Thirdly, the rule of
Absolute liability does not have an exception, whereas as some exception were
provided in rule of Strict Liability. Also in the case of Union of India
vs. Prabhakaran Vijay Kumar [(2008) 9 SCC 527: (2008) 2 KLT 700] the
view of constitutional bench was that the rule of MC Mehta is not
subject to any type of exception.
Fourthly, the Rule of Ryland
vs. Fletcher apply only to the non-natural use of land but the new
rule of absolute liability apply to even the natural use of land. If a person
uses a dangerous substance which may be natural use of land & if such
substance escapes, he shall be held liable even though he have taken proper
care.
Further, the extent of
damages depends on the magnitude and financial capability of the institute.
Supreme Court also contended that the enterprise must be held to be under an
obligation to ensure that the hazardous or inherently dangerous activities in
which it is engaged must be conducted with the highest standards of safety and
security and if any harm results on account of such negligent activity, the
enterprise/institute must be held absolutely liable to compensate for any
damage caused and no opportunity is to given to answer to the enterprise to say
that it had taken all reasonable care and that the harm caused without any
negligence on his part.
Thus, in the example above when
whistle traveling in projectile motion and originating from B’s Factory hit A’s
head who dies instantly, the defences that may be taken by B would severally
limit in case of Strict Liability. In
case of Absolute Liability B may be restrained to take any defence, at all,
even if, everything else be the same.
