Classification of Strict & Absolute Liability

Concept of Strict Liability​​

The principle of strict liability evolved in the case of Rylands v Fletcher. In the year 1868, the
principle of strict liability states that any person who keeps hazardous substances on his premises
will be held responsible if such substances escape the premises and causes any damage. Going
into the facts of the case, F had a mill on his land, and to power the mill, F built a reservoir on his
land. Due to some accident, the water from the reservoir flooded the coal mines owned by R.
Subsequently, R filed a suit against F. The Court held that the defendant built the reservoir at his
risk, and in course of it, if any accident happens then the defendant will be liable for the accident
and escape of the material.
Going by the principle laid in this case, it can be said that if a person brings on his land and
keeps some dangerous thing, and such a thing is likely to cause some damage if it escapes then
such person will be answerable for the damaged caused. The person from whose property such
substance escaped will be held accountable even when he hasn’t been negligent in keeping the
substance in his premises. The liability is imposed on him not because there is any negligence on
his part, but the substance kept on his premises is hazardous and dangerous. Based on this
judicial pronouncement, the concept of strict liability came into being. There are some essential
conditions which should be fulfilled to categorize a liability under the head of strict liability.

Essentials of Strict Liability

Dangerous Substances​​: The defendant will be held strictly liable only if a “dangerous”
substances escapes from his premises.
Escape​​: One more essential condition to make the defendant strictly liable is that the material
should escape from the premises and shouldn’t be within the reach of the defendant after its
escape.
Non-natural Use​​: To constitute a strict liability, there should be a non-natural use of the land. In
the case of Rylands v. Fletcher, the water collected in the reservoir was considered to be a
non-natural use of the land. Storage of water for domestic use is considered to be natural use. But
storing water for the purpose of energizing a mill was considered non-natural by the Court.
When the term “non-natural” is to be considered, it should be kept in mind that there must be
some special use which increases the danger to others. Supply of cooking gas through the
pipeline, electric wiring in a house, etc. is considered to be the natural use of land. For instance,
if the defendant lights up a fire in his fireplace and a spark escapes and causes a fire, the
defendant will not be held liable as it was a natural use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict liability.

Exception to the Rule of Strict Liability

Plaintiff’s Fault​​: If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be
held liable, as the plaintiff himself came in contact with the dangerous thing.In the judicial
pronouncement of Ponting v Noakes, the plaintiff’s horse died after it entered the property of the
defendant and ate some poisonous leaves. The Court held that it was a wrongful intrusion, and
the defendant was not to be held strictly liable for such loss.
Act of God​​: The phrase “act of God” can be defined as an event which is beyond the control of
any human agency. Such acts happen exclusively due to natural reasons and cannot be prevented
even while exercising caution and foresight.
Act of the Third Party​​: The rule also doesn’t apply when the damage is caused due to the act of
a third party. The third party means that the person is neither the servant of the defendant, nor the
defendant has any contract with them or control over their work. But where the acts of the third
party can be foreseen, the defendant must take due care. Otherwise, he will be held
responsible.For instance, in the case of Box v Jubb,where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s reservoir, the Court
held that the defendant wouldn’t be liable.
Consent of the Plaintiff​​: This exception follows the principle of ​violenti non fit injuria​​.

Concept Of Absolute Liability

Offences in which it is not open to a person to avoid liability on the ground that she or he acted
under a reasonable mistake of fact which, if the facts had been as the accused believed them to
be, would have made his act innocent.
The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus
the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union
of India. This is one of the most landmark judgment which relates to the concept of absolute
liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry.
Due to the leakage, many people were affected. The Apex Court then evolved the rule of
absolute liability on the rule of strict liability and stated that the defendant would be liable for the
damage caused without considering the exceptions to the strict liability rule.
According to the rule of absolute liability, if any person is engaged in an inherently dangerous
or hazardous activity, and if any harm is caused to any person due to any accident which
occurred during carrying out such inherently dangerous and hazardous activity, then the person
who is carrying out such activity will be held absolutely liable. The exception to the strict
liability rule also wouldn’t be considered. ​The rule laid down in the case of MC Mehta v
UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy
case. To ensure that victims of such accidents get quick relief through insurance, the Indian
Legislature passed the Public Liability Insurance Act in the year 1991.

2
The Public Liability Insurance Act, 1991
This act was introduced with the aim of providing immediate relief to people who are victims of
accidents in which handling of hazardous substances is involved. The main focus of the Act is to
create a public liability insurance fund which can be used to compensate the victims.

The rule of strict liability and absolute liability can be seen as exceptions. A person is made
liable only when he is at fault. But the principle governing these two rules is that a person
can be made liable even without his fault. This is known as the principle of “no fault
liability.” Under these rules, the liable person may not have done the act, but he’ll still be
responsible for the damage caused due to the acts. In the case of strict liability, there are
some exceptions where the defendant wouldn’t be made liable. But in the case of absolute
liability, no exceptions are provided to the defendant. The defendant will be made liable
under the strict liability rule no matter what.

TORT AND ABSOLUTE LIABILITY- SUGGESTED CHANGES IN

CLASSIFICATION
It is proposed to suggest some changes in the prevailing classification and nomenclature of the
outlines of substantive law upon the general subjects, (i) of so-called torts, and (2) of cases of
"absolute" liability where there is neither contract nor fault. And the attempt will be made to do
this uninfluenced by two causes: one, the phraseology and doctrine of the old law of procedure,
espedaily the old law as to forms of action; the other, legal fictions and fiction phrases. We are
not now attempting to suggest the alteration of the substantive law, but rather the alteration of the
mode of stating and classifying legal doctrines relating to certain topics. It will not be here
contended that the actual results (the final decisions) which are now usually reached by courts
upon these topics are often incorrect. But it will be contended that, although these results are
generally correct, yet the prevailing classification and nomenclature are antiquated and
misleading, and that a restatement will promote ease and clearness of apprehension. It may be
said that the arrangement of topics, the division of the law into various subjects, "constitutes no
part of the law itself" ("does not affect the law itself"), and that hence questions of arrangement
or classification are "not of prime importance." But it is certain that a good arrangement of topics
will make the law more easily comprehended by students and less likely to be misunderstood or
misapplied by lawyers and judges.

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The term "causes of personal action" is a very broad one, embracing a good deal of matter that
cannot be classed under tort.1 How has the law classified or divided causes of personal action
(other than suits to obtain possession of specific articles of property), and what names have
usually been given to the separate classes? In recent times it has been commonly assumed that
there are only two great divisions of causes of personal action, contract and tort, and that there
can be no cause of personal action unless it can be classed under one of these two heads.2 "No
intermediate class was known to the law of procedure." 3In Bryant v. Herbert 4 the controversy
arose under a statute making a distinction as to costs between actions founded on contract and
actions founded on tort. Bramwell, L. J., said, page 390: "One may observe there is no middle
term; the statute supposes all actions are founded either in contract or tort. So that it is tort if not
contract, contract if not tort." 5
At the present time we think it should be recognized that there are three great divisions of causes
of personal action:
i. Breach of genuine contract.
2. Tort, in the sense of fault.
3. So-called "Absolute Liability" imposed by courts, where there is neither breach of genuine
contract nor fault. 6
Under this classification, the application of the term tort should be restricted to class 2.
The third class can be subdivided as follows: (a) Cases where recovery has heretofore been
enforced in an action of tort; (b) cases where recovery has heretofore been enforced in an action
of contract. 7
What practical benefit from adopting the new classification can be found Two considerations
may be mentioned:

1
While legislatures, or courts, may undertake to abolish forms of action, yet they cannot abolish distinctions
between causes of action. In the nature of things such distinctions must continue to exist. See 2 ODGERS,
COMHON LAW or ENGLN, 1245.
2
See Lord Chancellor Haldane, in Sinclair v. Brougham, [19r4] A. C. 398, 415.
3
HEPBURN, DEVELoPmENT OF CODE PLEADING, § 26. Compare Professor Maitland's note in POLLOCK, ToRTs, io
ed., 587-94, Appendix A
4
3 C. P. Div. 389 (1878)
5
By the present Pleading and Practice Act of Massachusetts, 1902, R:v. LAws, Ch. x73, § x: "There shall be only
three divisions of personal actions: "First, Contract . . . "Second, Tort, which shall include actions formerly known as
trespass, trespass on the case, trover and actions for penalties. "Third, Replevin." The above is a substantial
reenactment of a statute originally passed in 1851 (LAws oF 185r, ch. 233, § i) in accordance with the report of a
very strong legal commission, of which Benjamin R. Curtis was chairman.
6
Those who prefer an arrangement of the law based upon rights, instead of upon duties or liabilities, might
substitute for "Absolute Liability" the phrase "Violations of Absolute Right," or "Infringements of Absolute Right."
Rights and duties are very generally correlative to each other.
7
We have said that the existence of the three divisions should be recognized "at the present time." Will their
existence permanently continue? With a better idea of the essence of fault, will many cases now classed under 3
(a) be placed under 2? Will modem legislation (e. g., the Workmen's Compensation Acts) have such an effect upon
public and judicial opinion as to induce the courts to repudiate the modem common law doctrine that fault is
generally requisite to liability, and go back to the ancient doctrine that an innocent actor must answer for harm
caused by his non-culpable conduct?

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1. The separation into class 2 and class 3 (a), instead of including both classes under the general
head of tort, will necessitate searching inquiry into the essence of fault as a ground of liability,
and also an inquiry into the reasons of policy for imposing liability in the absence of fault. These
questions have not hitherto received the attention which their importance deserves.
2. No useful definition of tort can be framed if that term is used to cover all the cases under all
the sub-topics formerly enumerated under this general head; in other words, if tort is used as
including not only class 2, but also class 3 (a). The insufficiency of previous attempts to define
tort, when used in this sense, is admitted by good authorities.
Formerly the law of procedure almost monopolized attention, so that questions of substantive
law received very scant consideration. The form of procedure was considered the principal thing,
and the substantive law was viewed as a mere incident to procedure."8 "The forms of action are
given, the causes of action must be deduced therefrom."'9 "So great is the ascendency of the Law
of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being
gradually secreted in the interstices of procedure."' 10 Certain forms of personal action were
recognized by the courts. A plaintiff had no remedy unless his case would fit into one of these
forms.11
The relief afforded under the Statute of Westminster II was "only partial."12 Not only were forms
of action rigid, but each procedural form contained its own rules of substantive law, which had
grown up "independently of the law
The above suggested third class would not be made up entirely of (would not include only) cases
heretofore placed under the general head of torts, but which can no longer be so classified if tort
is to be regarded as requiring fault. Such cases would be placed at one end of the third class. At
the other end would be the cases heretofore frequently spoken of as though they belonged under
contract rather than tort; cases where, under the old forms of action, a remedy, with the help of
fiction, was allowed under an action of contract, and many of which were often described by the
unfortunate name of quasi-contracts.
Professor Wigmore calls attention to "the necessity, every day drawing nearer, of adjusting the
treatment of our substantive law to the abolition, already largely accomplished, of the forms of
action and classes of writs in tort. . .." 13

8
See I ENCYCLOPAEDIA LAWS OF ENGLAND, 2 ed., Pollock's Introduction, 4.
9
MAITLAND, EQUITY AND THE FoRms OF ACTION, 3oo.
10
MAINE, EAiLY LAW AND CUSTOm, Eng. ed., 1883, 389.
11
See MAITAND, EQurTY AND FoRms OF ACTION, 298-99; ODGERS, PRINCIPLES OF PLEADING, 5 ed., 185-86; Sir F.
Pollock, ii H1ARv. L. REV. 424; Professor Bohlen, s9 U. PA. L. REv. 3o6; HEPBURN, DEVELOPMENT OF CODE
PLEADING, § 21.
12
See HEPBURN, DEVELOPMENT OF CODE PLEADING, 68, 24.
13
8 HARv. L. REv. 2o9.

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Professor Maitland says that now "the attention is freed from the complexity of conflicting and
overlapping systems of precedents and can be directed to the real problem of what are the rights
between man and man, what is the substantive law." 14

In the former days when substantive law was dominated by procedure, 15 the leading doctrines of
substantive law were evolved very slowly; and this was especially true as to the subject of torts.
In a very recent work, it is said that, in tort, "the generalizing process" "has as yet developed
much less than in the corresponding department of Contract." 16 Professor Burdick, speaking of a
book published in 1720, says "that the rules of English law relating to torts had not then been
systematized, and that neither the bench nor the bar had any conception of a Law of torts."' 17
Judge Doe says: "Formerly, in England, there seems to have been no well-defined test of an
actionable tort. . . .There were precedents, established upon superficial, crude, and undigested
notions; but no application of the general system of legal reason to this subject."18 In 1895 Judge
Jaggard, in the Preface to his work on Torts, 9 says: "Specific Torts were among the earliest
subjects of judicial cognizance." "But only within very recent times has the process of
generalization been applied to them."
Elsewhere Pollock says:
"In England the general scope of the law of torts has never been formulated by authority, the law
having in fact been developed by a series of disconnected experiments with the various forms of
action which seemed from time to time to promise the widest and most useful remedies." 19

In very early times there was no occasion to discuss the essential elements of a tort or wrong.
Wrong was then not essential to liability. It was enough that the defendant's conduct, although
perfectly blameless, had occasioned harm to the plaintiff.39 Later it began to be suggested that in
certain instances (in certain classes of cases) there was no liability unless there was fault. But
even then there was very little inquiry as to the substantive law respecting the necessity of
showing fault. The attentiofi of the courts was mainly given to questions of procedure, e. g., the
scope of the old forms of action.

In the Harvard Law Review for November, 1916,61 Mr. Jenks

says:
“But of any substantive definition of a tort English Law is still innocent. It is at present only in
the preliminary stage, in which it says, this actor that is a tort, this or that is not.”

14
MAiTLAND, EQuiTY AND FoiRs or AcTioNs, 375.
15
"During the period when the substantive law was controlled by the forms of procedure. . . . " Professor Corbin,
21 YAna L. J. 536.
16
6 JENKS, DIGEST op ENGISH LAW, Book II, Part 3, Preface, p. xi
17
BumDicx, ToR s, 2 ed., 2
18
Brown v. Collins, 53 N. H. 442, 445 (1873;
19
27 ENCYCL. BRIT., ii ed., 65.

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Leaving out of view the comparatively recent suggestion that the term "tort" should be confined
to cases of actual fault, the situation (as set forth in books of good repute, may fairly be described
as follows: The term "tort," although originally synonymous with wrong, "has become
specialized in its application" as a technical term in law.20 "Tort," taken in its broad literal sense
of wrong, would indude wrongs which are exclusively subjects of criminal jurisdiction, also
breaches of contract and breaches of trust. But instead of including these, its application in law
has been restricted to certain classes of wrongs (other than mere breaches of contract) which give
rise to an action for damages in courts of common law. Under, or by means of, actions of tort,
the courts were accustomed to allow the remedy of pecuniary satisfaction "for invasions of the
three elementary rights of civilized society - the right of personal liberty and security, the right of
reputation, and the right of property."21" But an action of tort was not a remedy under which all
invasions of these rights could be a subject of recovery.

Professor Wigmore, impressed with the difficulties of definition,would drop the term "tort" as
the title of the subject. He says: "The first wish is that we might proscribe, expel, and banish the
ob-noxious term 'Tort' as the title of the subject. Never did a Name so obstruct a true
understanding of the Thing. To such a plight has it brought us that a favorite mode of defining a
Tort is to declare merely that it is not a Contract. How can these difficulties of definition be
obviated?
1. By discarding the former custom of grouping together under the general head of tort cases of
fault and cases of liability without fault.
2. By recognizing the existence of the modem common law rule -that, generally, fault on the part
of defendant is requisite to consti-tute a tort. If this view is carried out to its logical result, the use
of the term tort would be confined to cases of fault, and cases of liability without fault would be
classed under the distinct head of absolute liability. Then it would be possible to state a common
affirmative characteristic of actionable torts.

20
SALMOND, TORTS, 4 ed., 7, note 4.
21
CLERK & LINDSELL, TORTS, 6 ed., 4.