Introduction
In the words of Salmond, “A tort is a civil wrong”. Remedy for an action in tort is unliquidated damages and which is not exclusively the breach of a contract, or trust, or of other merely equitable obligation. Wrong of absolute liability impose a kind of liability which is somewhat peculiar in that a person become liable without there being any fault on his/her part. That is why, it is called absolute liability. Here, the wrong arises from the breach of absolute duty. Absolute duty may be defined as duty which render a man liable without any fault of his irrespective of any considerate intention or negligence on his part.
Tortious Liability
Winfield defines Tortious Liability as the “liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” It is appropriate to understand what is meant by tortious liability or rather the nature of tort law in order to understand its usefulness. To shed more light on it, the word tort evolved from a time when it almost passed into literary use as a synonym for the word “wrong”, but after the mid-seventeenth century, a practice began in common law courts of use of the word ‘tort’ as a concise title for the latter class of actions. It has been common since then to speak of ‘action in tort.’ Thus this tort law came to refer to that particular class of wrongs for which common law courts recognized an action as a remedy, and to lose the generic sense of wrong that it might have helped in popular use.
Principle of Absolute Liability
According to the principle of Absolute Liability, an enterprise, involved in hazardous and inherently dangerous industry which creates a possible threat to the people who may be working in that industry or living in the area surrounding the industry owes an absolute and non-delegable duty to such workers or residents. Even if the industry conducts its duties with the highest standards of safety, taking all reasonable care and operating without any negligence on their part, and still causes harm on account of such activity then they are liable to compensate for the damage. In the words of Blackburn J., “We think that the rule of the 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.”[1] An enterprise permitted to carry out any such activity for its own private profit, then they should pay the social cost and indemnify all those who may suffer due to the hazardous or inherently dangerous activity regardless of any negligence. The measure of compensation in this case would be corresponding to the magnitude and capacity of the enterprise. Supreme Court also contended that, the enterprise must be under an obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged are carried out with the highest safety and security standards and if any harm results from such negligent activity; the enterprise/institute must be held absolutely liable to compensate for any damage caused and shall not be given the opportunity to say that it has taken all reasonable care and that the damage has been caused without negligence on its part.[2] It is a newly formulated doctrine formulated by re-interpreting the scope of power available under Article 32 of the Constitution of India. The rule of absolute liability is free from the exceptions which are provided by the Common Law principle of England in terms of Strict Liability. The principle has attained the status of statutory liability to some extent.
Origin
The rule of Absolute Liability was developed in preference to the rule of Strict Liability which was laid down in the case of Rylands v. Fletcher[3], where it was laid that if a person brings to his land or collects anything which is likely to cause harm or damage in case it escapes, such a person is liable to compensate for the damage caused. The need to modify the existing rule of Strict Liability arose in the 19th century with the case of M.C. Mehta v. Union of India[4], popularly known as the “Oleum gas leakage case”. On 4th and 6th December in the year 1985, oleum gas leaked from one of the units of Shriram Foods and Fertilizers Industries, owned by Delhi Cloth Mills in the national capital of the country, Delhi. As a result of the leakage many innocent lives were affected and thus an action was brought forward by Delhi Legal Aid and the Delhi Bar Association through a writ petition under Article 32 of the Constitution of India by filing of a Public Interest Litigation to seek compensation for the people who suffered harm on account of escape of the gas. In its judgment the Supreme Court stated that, “Moreover the principle so established in Ryland v. Fletcher of strict liability cannot be used in the modern world, as the very principle was evolved in 19th century, and in the period when the industrial revolution has just begun, this two century old principle of tortuous liability cannot be taken as it is in the modern world without modifications”[5] The principle of Absolute Liability was moreover formulated by the Supreme Court of India as within that period that was a second case of leakage of a poisonous gas in India. Just a year ago the Bhopal gas tragedy had taken place which injured and took away the life of more than 3000 people in the country in the most tragic and horrendous manner. The principle was further re-examined by the court in the case of Indian Council for Enviro Legal Action v. Union of India[6], popularly known as the Sludge’s Case.
Justification for Absolute Liability
As our country is a pioneer in industrial development and the demographics of such development soaring high every day, also with complexity in both life and geography, it is necessary to have a more stringent and absolute principle of liability with regard to no fault liability. The principle established in the case of Ryland v. Fletcher is not applicable in the modern scenario as it was a principle which was formulated in the 19th century when industrial revolution has just begun.
Critical Analysis
Absolute Liability being a stricter concept than Strict Liability and without any exceptions, protects the interests of the victims who suffer due to the hazardous activities of some enterprises whether they are occupiers of the land or non- occupiers. It establishes a legal standard of care by enforcing maintenance of due care. Absolute Liability and Strict Liability are like two extreme ends of the rope of No-Fault Liability. While the principle of Absolute Liability doesn’t even recognize the Act of God as a valid defense to escape liability, on the other hand the principle of Strict Liability would let victims of cases like Bhopal Gas Leak and Indian Council for Enviro-Legal Action left with no compensation for the damage when their life was endangered because of the activities of the industries. The principle of Absolute Liability promotes the idea of no-fault liability of enterprises which leads to situation where the victim becomes careless and he forgets all sense of responsibility for his own acts and does not take required steps to avoid accidents just because he knows that his faulty action would be compensated by someone else.
Conclusion
The development of any standard of liability consistent with the constitutional norms and the needs of today’s economy and social structure cannot provide any guidance. We do not need to feel inhibited by this rule that has evolved in this context of an economy of a completely different kind. Law needs to develop so as to fulfill the necessities of the quick changing society and stay up to date with the financial advancements occurring in the nation. We can’t permit our judicial thinking to be contracted by reference to the law, which was introduced in England, in 1866, around a hundred years back. The reality remains that the significance of “hazardous” has additionally changed and an assortment of substances have advanced which one couldn’t consider at that point, because of mordernisation of the world, science, innovation, individuals, mechanical practices and in totality, law itself aside from the rule of doing justice.
[1] The Rule in Rylands v. Fletcher. Part I by Bohlen, Francis H. (1911)
[2] Ratanlal & Dhirajlal : Law of Tort; 26th edition pp.520
[3] 1868 L.R. 3 H.L. 330
[4] AIR 1987 SC 1086
[5] W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS, 8th ed. 2010 pp. 248
[6] (1996) 3 SCC 212: AIR 1996 SC 1446.
Author: Mani Gupta,
NMIMS Kirit P. Mehta School of Law; 1st year BBA LLB(Hons.) Student
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