Download - Absolute Liability Final
Introduction
Liability is basically the flip side of the rights accorded to citizens. The process of evolution
of liability was one that has always gone in tandem with the evolution of law and society.
Absolute liability in the simplest terms can be defined as strict liability without exceptions. It
is totally independent of wrongful intent or negligence. It has become a highly recognised
principle in India ever since the Bhopal gas leak tragedy. The burden of proof in the case of
absolute liability rests solely on the defendant.
Although the terms absolute liability and strict liability was used synonymously in England,
the judgement of Ryland’s v Fletcher distinguished it. The case carved out some exceptions
which made absolute liability no more absolute or in the words of Sir Frederick Pollock
“become slowly but surely choked and crippled with exceptions”.
The need for absolute liability was felt in India essentially due to the rapid industrialisation
and economic development of the society and the dire need to bring into light those who used
the exception route to evade liability.
Historical Development of the Principle
In India, the rule followed on strict liability was the one laid down in Ryland v. Fletcher. In
this case, the rule laid down was that if a person employs non-natural use of land, then he is
strictly liable for the damage caused by any escape of matter from that land.
It says that if a person who brings on to his land and collects and keeps there anything likely
to do harm and such thing escapes and does damage to another, he is liable to compensate for
the damage caused. Of course, this rule applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the escape is due to an act of God and
an act of a stranger or the default of the person injured or where the thing which escapes is
present by the consent of the person injured or in certain cases where there is statutory
authority.
But soon the principle of strict liability lost its sharpness and utility. The Hon’ble Supreme
Court felt that the English doctrine of Strict Liability adopted by the House of Lords in
Rayland v. Fletcher would not suffice the changing need of the liability principle in India. So
the Supreme Court felt the need of adopting the principle of Absolute Liability or else the
Court of law would fail to provide justice to the victims of these large scale environmental
disasters. Absolute liability was applied in India for the first time in the case of M.C. Mehta v
Union of India.1
M.C. Mehta v Union of India.
The petitioners, in this writ petition under Art. 32, sought a direction for closure of the
various units of Shriram Foods & Fertilizers Industries on the ground that they were
hazardous to the community. During the pendency of the petition, there was escape of oleum
gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi
Bar Association filed applications for award of compensation to the persons who had suffered
harm on account of escape of oleum gas.
In this case,the Supreme Court of India said that 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. Law cannot afford to remain static.
The Court cannot allow judicial thinking to be constricted by reference to the law as it
prevails in England or in any other foreign country. It also said that, it has to build up its own
jurisprudence, evolve new principles and lay down new norms which would adequately deal
with the new problems which arise in a highly industrialized economy. Also the Court should
not hesitate to evolve such principles of liability merely because it has not been so done in
England.
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 non-delegable duty to the community.
The enterprise must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity 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 irrespective of the fact that the enterprise had taken all reasonable
care and that the harm occurred without any negligence on its part.
If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its
profit, the law must presume that such permission is conditional on the enterprise absorbing
1 1988 AIR 1115, 1988 SCR (2) 530
the cost of any accident arising on account of such activity as an appropriate item of its
overheads. The enterprise alone has the resource to discover and guard against hazards or
dangers and to provide warning against potential hazards.
The measure of compensation in such kind of cases must be co-related to the magnitude and
capacity of the enterprise because such compensation must have a deterrent effect. The larger
and more prosperous the enterprise, the greater must be the amount of compensation payable
by it for the harm caused on account of an accident in carrying on of the hazardous or
inherently dangerous activity by the enterprise.
Some other relevant cases
In the Union of India vs Prabhakaran2, the Supreme Court extended its cover even to public
utilities like the railways, electricity distribution companies, public corporations and local
bodies “which may be social utility undertakings not working for private profit”.
In this case a woman fell on a railway track and was fatally run over. Her husband demanded
compensation. The railways argued that she was negligent as she tried to board a moving
train. The Supreme Court rejected this contention and said that her “contributory negligence”
should not be considered in such untoward incidents. The court ruled that the railways has
“strict liability”.
MPSEB v Shail Kumari3 is another similar case. Here an electric wire had snapped and fallen
on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His
widow demanded damages from the electricity authorities.
The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting
this contention, the Supreme Court said: “It is no defence on the part of the board that
somebody committed mischief by siphoning off energy to his private property and the
electrocution was from such diverted line… Authorities manning such dangerous
commodities have extra duty to chalk out measures to prevent such mishaps.” The basis of
the liability is the “foreseeable risk inherent in the very nature of such activity”.
2 [2008] INSC 802 (5 May 2008)
3 2002 ACJ 424, AIR 2002 MP 86
Legislations implementing absolute liability
Though the principle of absolute liability was established by the Supreme Court, the
contributions then on made by legislature are inevitable.
The Public Liability Insurance Act was enacted in 1991 to particularly provide for a scheme
of insurance where an activity involving hazardous substances or processes is carried on. It
imposes no fault liability on the owner to give relief in case of death or injury to any person
or damage to any property, resulting from an accident occuring while handling any hazardous
substance.
Compulsory Insurance requires owner to take out one or more insurance policies, before
starting the handling of hazardous substance. Such insurance policy should provide for
contract of insurance, whereby he is insured against liability to give relief under Section 3(1)
of the Act.
The amount of insurance policy should not be less than the amount of paid up capital of the
undertaking handling any hazardous substance and more than the amount, not exceeding
rupees Fifty Crore, as may be prescribed.
By an amendment in 1992 that provided for a ceiling on the amounts that an insurance
company would have to pay, a provision was created for the setting up of an Environmental
Relief Fund. The National Environmental Tribunal Act of 1995 has a schedule details the
expected losses and heads of damages following an accident involving hazardous substances
or processes.
The National Green Tribunal Act, 2010 intend to provide for the establishment of a National
Green Tribunal for the effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources including enforcement of
any legal right relating to environment and giving relief and compensation for damages to
persons and property and for matters connected therewith or incidental thereto.
There is indeed a category of offences termed as absolute offences. It is recognized by the
courts. The Supreme Court is of the view that absolute offences are not criminal offences but
are acts which are prohibited in the interest of welfare of public. This prohibition is backed
by sanction of penalty. An example of absolute offence is the breach of prescription under the
Factories Act 1948.
Conclusion
Absolute liability is in all ways more rigid than strict liability. In R. v. City of Sault Ste-
Marie, the Supreme Court of Canada defined an absolute liability offence as an offence
"where it is not open to the accused to exculpate himself
by showing that he was free of fault."