1.
In absolute liability, a person is made liable even if he is neither negligent nor wilfully commits a tort. Absolute liability is an exception in the law of tort where the liability of a person arises even if he has not committed any tort.
Justice Blackburn in 1868, in the case of Rylands v. Fletcher, propounded the theory of 'Absolute liability'. Here, 'absolute' indicates liability in all the circumstances and that there should not be any exception. We can also say that the word 'absolute' signifies here 'complete' or 'unconditional' liability without any exception.
Although Blackburn called it 'absolute' liability, but Winfield corrected it as 'strict liability'.
In this case, Ryland was a mill owner and Fletcher was the lessee of coal mines. Ryland appointed an independent contractor, to construct a reservoir on his land to get water for his mill. Some old shafts were found by the contractor on Ryland's land during course of the work. These shafts were connected to the mines of Fletcher. After building the reservoir water was filled in it, the old shafts burst downward and water flowed through these old shafts into the coal mines of Fletcher. Fletcher suffered damages and brought suit against Ryland. It came to knowledge that there was negligence on the part of Ryland but the contractor had.
The Court of Exchequer, by majority, decided in favour of Ryland. But on appeal, the Court of Exchequer chambers unanimously reversed the decision of the lower court and held Ryland liable.
Justice Blackburn delivered the judgment of the Court as-
"We think that the true rule of law is, that the person who for his own purposes brings on his lands 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, is prima facie answerable for all the damage which is the natural consequence of its escape."
Further he added-"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 (act of God) but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
The House of Lords confirmed the above rule with two clarifications that the use of land should be non-natural (as in this case) and that the thing must have been brought on the land "which was not naturally, there".
It may be inferred that there must be two basic requirements in order to apply the rule laid down by Justice Blackburn alongwith the clarifications made by the House of Lords:
(a) Escape from one land to another
(b) Non-natural use of land
It is essential to prove that a dangerous thing has actually escaped from the area outside the occupation and control of the defendant to apply the rule of strict liability. And, the escape of dangerous thing has actually caused damage.
Bhopal Gas Leak Tragedy is a case related to this topic. On the intervening night of 2nd and 3rd December, 1984, in the city of Bhopal, a poisonous gas 'Methylisocyanate' leaked from the plant of Union Carbide Company. The leakage of gas was so powerful that it did not let the people flee their home and killed thousands of people and many who lived after, are suffering from various skin diseases, blindness and other carcinogenic effect of gas. The poisonous gas affected the people who were present on the lands other than the company's land on which gas plant was situated.
N. Narayanan Bhattathiripad v. Travancore Government, AIR 1956 Trav Co 225.
A dam was constructed across the stream for storing the water to be used for irrigation purposes. After a heavy rainfall, the water could not pass speedily through the sluices in the dam and spread over the paddy field of the plaintiff. The Court observed that there was no escape of water stored up or collected in the dam. The plaintiff's contention was that the rain water could have gone away easily if the dam was not there which stood in between as a wall and plaintiff lost the crop. At the same time, the Court also held that this was not a case of non-natural use of land in India.
Natural means which has originated from nature and it has not been adulterated and it has also got a second meaning "that which is ordinary and usual, even though, it may be artificial". The courts take the meaning of non-natural use in latter sense. In the case of Rickards v. Lothian, 1913 AC 263, the non-natural user has been defined in the following words:
"It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."
Another meaning which courts apply is that the use is similar to the idea of 'unreasonable' or abnormal risk in negligence cases and that ought not to be borne by the public. Thus, the court has got a device for determining liability in accordance with what they consider to be public policy. It also depends on courts to make its own value judgment of the defendant's conduct, its social utility etc.
If one keeps something which may cause 'increased danger' or 'abnormal risk' then it certainly comes under the category 'non-natural use of land'. There are numerous cases in which it was observed that to use land for the purpose of industrial water under pressure or gas1 and electricity2 in bulk fire, explosions,3 noxious fumes,4 vibrations,5 poisonous vegetation,6 colliery and even noxious persons was considered as un-natural use of land.
Non-natural things vary from place to place and according to circumstances. The rule of Ryland v. Fletcher, applies to dangerous things which an occupier brings on to his land and collects and keeps there and not to those things which are automatically on the land by the Act of God.
Regarding, natural use of land in India, a case Kana Ram Akhul v. Satidhar Chatterjee, (1912) 15 IC (Cal) 543, is worth mentioning - The defendant lowered the level of his land to get water from nearby tank for the purpose of cultivation. But, it overflowed to the adjoining lands of the plaintiff. The plaintiff's plea was that the defendant had no right to bring water to his land for cultivation as it overflowed his lands and he claimed the damage under the rule of Ryland v. Fletcher. The court rejected the contention of the plaintiff and observed that the Ryland and Fletcher rule is not applicable here as the defendant had not used their land in any artificial or unusual manner. There was no artificial construction and it was their right to obtain water from the tank for cultivation.
In Ryland v. Fletcher, although there was independent contractor, even then Ryland was held liable whereas there was no negligence on his part. In T.C. Balakrishnan Menon v. T.R. Subramanian, MANU/KE/0040/1968 : AIR 1968 Ker 151, an explosive 'Minnal Gundu' was used to be made out of a coconut shell filled with explosive substance, instead of rising into the sky, it bursted in the crowd and caused injuries to the respondent. The question before the court was whether the appellant was liable who had engaged an independent contractor to attend the exhibition of fire works. The Kerala High Court applied the rule as laid down in the case of Rylands v. Fletcher, and held that - The Minnal Gundu is an explosive and is therefore an "extrahazardous" object and persons who use such an object, which in its very nature, involves special danger to others, must be liable for the negligence of their independent contractor. It is the duty of defendant to keep such a substance without causing injury to others and defendant can't escape the liability for the breach of such a duty by engaging an independent contractor.
2.
There are following defences (or exceptions) to the rule which have been recognized in Ryland v. Fletcher and later decisions.
Q.
In case the escape occurred due to plaintiff's own fault, it is a good defence as in Rylands v. Fletcher. If the escape of water from Rylands' land would have been due to fault of Fletcher, he would not have succeeded for the damage caused to coal mines.
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1. Batcheller v. Tunbridge Wells Gas Co., (1901) 84 LT 765.
2. National Telephone Co. v. Beaker, (1993) 2 Ch 186.
3. Miles v. Forest Rock Co., (1919) 34 TLR 500.
4. West v. Bristol Tramways, (1908) 2 KB 14.
5. Hoaare & Co. v. Mc. Alpine, (1923) 11 Ch 167.
6. Crewhurest v. Amershan Burial Board, 1878 Ex D 254.
If plaintiff has given his consent either expressed or implied to the defendant to keep the dangerous thing on his land and if that material escapes and injures the plaintiff, the defendant would not be held liable. This exception falls under the general defence of the maxim 'volenti non fit injuria'.
If dangerous thing is kept on the defendant's land for the benefit of plaintiff and defendant, the defendant is not liable for its escape and consequent injury to the plaintiff. In the case Carstairs v. Tylor, the defendant, a landlord, was staying in the upper storey of the house whereas the plaintiff, a tenant, was residing in the lower storey. The defendant maintained a water box for the use of himself as well as the plaintiff. One day the water box leaked since a rat made a hole in it. It was held by the court, that the water box was for the common benefit and here the defendant would not be liable.
If a stranger does something which causes escape of a dangerous thing on which defendant doesn't have any control, then the rule of Rylands v. Fletcher does not apply.
If something happens unanticipated and which has been caused by nature and which is practically impossible for defendant to check, then the defence of Act of God applies and the plaintiff cannot recover for the damage caused by that escape.
In the case Nichols v. Marsland, (1876) 2 Ex D1, Nichols was the surveyor of county bridges for Chesire. Marsland, the defendant, was the owner of an estate, containing three lakes of ornamental water. These lakes were fed by a natural stream passing through the estate. A heavy down pour flooded the lakes which broke the artificial embankments. Heavy flow of water carried away four bridges of the country. The Court of Exchequer Chamber held that the heavy rainfall was unanticipated and unprecedent and it was beyond the control of defendant to check water, hence defendant was not liable as it was the Act of God.
If, the defendant has been authorized by a law or statute to store dangerous thing on his land and if such dangerous thing escapes from his land then the defendant would not be liable unless and until his negligence is proved.
Q.
In the case Madras Railway Company v. Zamindar of Carvatenagram, 1874 IA 364, there were two tanks on the land of the defendant in a hilly district of Carvatenagram. These were very old but properly maintained and repaired. These tanks were used by cultivators for irrigation purpose. Due to excessive rainfall these tanks' embankment could not hold water and escaped damaging the property of the plaintiff's railway company. Plaintiff argued that the Rule as laid down in the case Rylands v. Fletcher, may be applied to this case. The Privy Council rejected this plea citing the ground "that the circumstances of the present case are essentially distinguishable" from Rylands' case. In the words of Lord Granworth-
"The tanks are ancient, and formed part of what may be termed a national system of irrigation, recognized by Hindus and Mohammedan law by regulations of the East India Company, and by experience older than history, as essential to the welfare, and, indeed to the existence of a large portion of India. The public duty, of maintaining existing tanks........ was originally undertaken by the Government of India, and upon settlement of the country has devolved on zamindars, of whom the defendant is one. The zamindars have no power to do away with these tanks, in the maintenance of which large number of people are interested, but are charged under Indian Law, by reason of their tenure, with the duty of preserving and repairing them. From this statement of facts..... the defendant in this case is in a very different position from the defendants in Rylands v. Fletcher."
"In the case, Rylands v. Fletcher, the defendant for their own purposes, brought upon their land and there accumulated a large quantity of water by what is termed by Lord Cairns "a non-natural use" of their land. They were under no obligation, public or private, to make or to maintain the reservoir and no rights in it had been acquired by other persons, and they could have removed if they had thought fit. The rights and liabilities of the defendant appear to their Lordships much more analogous to those of persons or corporations on whom statutory powers have been conferred and statutory duties imposed. The duty of the defendant to maintain the tanks appear to their Lordships a duty of very much of the same description as that of a railway company to maintain their railway, and they are of opinion that, if the banks of his tank are washed away by an extraordinary flood without negligence on his part, he is not liable for damage occasioned thereby."
3.
Q.
Rule in M.C. Mehta v. Union of India, MANU/SC/0092/1986 : AIR 1987 SC 1086: (1987) 1 Comp LJ 99 (SC): JT 1987 (1) SC 1: 1986 (2) SCALE 1188: MANU/SC/0092/1986 : (1987) 1 SCC 395: 1986 Supp (1) SCC 562: (1987) 1 SCR 819.
In the case, M.C. Mehta v. Union of India, Oleum gas leaked from one of the units of Shriram Food and Fertilizer Industries on 4th and 6th December, 1985. The Delhi Legal Aid and Advice Board and the Delhi Bar Association filed application for award of compensation to the persons who had suffered harm on account of escape of Oleum gas.
On 1st January, 1987 a new beginning started in India pertaining to the law of Strict Liability. Bhagwati C.J.; did not follow the principles laid down in the case of Rylands v. Fletcher.
The Court had to decide what was the measure of liability of an enterprise which was engaged in hazardous or inherently dangerous industry if by reason of an accident occurring in such industry, persons die or are injured.
It was observed by the Court that the rule in Rylands v. Fletcher, was evolved in the year 1868 and which cannot be followed in the modern world. To develop in the modern world, development in science and technology is necessary and for which existence of hazardous and inherently dangerous industries becomes inevitable. Bhagwati, C.J., stated-
"This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place. It cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in the context of 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. As new situations arise, the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. 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 are certainly prepared to receive light from whatever source it comes, but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recognize the rule of strict and absolute liability in case of hazardous or dangerous, substances,...... liability or the rule as laid down in Rylands v. Fletcher, as is developed in England recognizes certain limitations and responsibilities. We, in India cannot hold our hands back and I venture to evolve a new principle of liability which English courts have not done. 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 non-delegable 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. Since the person harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm,....... must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity for its profit. The law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads...... This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. 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-a-vis the tortiuous principle of strict liability under the rule in Rylands v. Fletcher."
So, it is seen here that the rule of strict liability laid down in Rylands v. Fletcher, in 1868 was found unsuitable to the modern industrial society and, therefore, the Supreme Court made a new rule of absolute liability which is very much different from the existing rule of strict liability.
Some inferences from this decision-
(i) the enterprises engaged in hazardous or inherently dangerous activity would be liable and those not falling under this category, the rule as laid down in the case Rylands v. Fletcher, would be applicable.
(ii) the escape of dangerous thing from one's land to another land is not necessary so the rule will be applied to both the persons who remain outside the premises as well as inside.
(iii) the rule is without any exception.
(iv) the quantum of damages depends upon the magnitude and the financial capacity of the defendant's enterprise. Here, the Supreme Court veered away from the principles of tortiuous liability.
The case of Indian Council for Enviro-Legal Action v. Union of India, MANU/SC/1112/1996 : AIR 1996 SC 1446: (1996) 3 GLR 272: JT 1996 (2) SC 196: (1996) 2 SCR 503: 1996 (5) SCALE 412: MANU/SC/1112/1996 : (1996) 3 SCC 212, is an important case on 'environmental pollution' where the Supreme Court followed its earlier decision of M.C. Mehta v. Union of India, imposing absolute liability on enterprises carrying on hazardous and inherently dangerous activity. In this case, the hazardous chemical industries had released highly toxic sludge and toxic untreated waste water which had percolated deep into the soil rendering the soil unfit for cultivation and water unfit for irrigation, human or animal consumption resulting in misery to the villagers of surrounding areas.
A writ was filed under Article 32 before the Supreme Court and also fundamental right under Article 21 of the Constitution compelling the Government and Pollution Control Board to perform their statutory duties. On this petition, the Supreme Court directed the Government to recover the cost of remedial measures from the defendant by attaching all their assets so that the Ministry of Environment could restore the water, soil and environment to its former state. These industries were characterized by the Supreme Court as 'rogue industries' and Supreme Court also directed them to be closed down. The Hon'ble Court recognized the principle of absolute liability in M.C. Metha's case, the Supreme Court also held that the liability of the rogue industries was based on the principle of 'polluter pays'.
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