global jurisprudence

8/18/2019 GLOBAL JURISPRUDENCE

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OFSTRICT

LIABILITY

INTRODUCTIONThe principle of absolute liability has been derived from one of the most intriguing chapters of theIndian jurisprudence. Its definition as laid down by then Chief Justice of India, P.N. hagwatirevolutioni!ed the entire trend on environmental protection laws in India. It commenced an entirenew chapter in India"s environmental law history, and brought a level of maturity in the IndianJudiciary never seen before.

THE RULE OF ABSOLUTE LIABILITY

The rule of strict liability famously laid down by lac#burn J., in Rylands v. Fletcher 1 , proved to berather ineffective with the passage of time to counter the dangerous use of one"s property or anindustry that produced substances or wastes detrimental to public health. The pre$ e%uipmentessential for establishing a liability under the principle of strict liability vi!., the non$ natural use of land, use of a dangerous thing and the element of escape provided substantial loopholes to theenterprises to escape liability under the Rylands v. Fletcher 2 , rule. &oreover, the e'ceptions provided

1 (1868) LR 3 HL 330

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within the rule (and restated by the )upreme Court of India in M.C. Mehta v. Union of India 3* affordample opportunity to the commercial enterprises to escape liability.

The )upreme Court of India in M.C. Mehta v. Union of India, 4 evolved a more stringent rule of strictliability than in Rylands v. Fletcher 5 rule. In this case, which involved the lea#age of and the harmcaused by +leum gas from one of the units of )hriram Industries in elhi. The court held that#eeping in mind the needs and demands of a modern society with highly advanced scientific#nowledge and technology where for the sa#e of development program, it was necessary to carry outinherently dangerous or ha!ardous industry, a new rule had to be laid down to ade%uately deal withthe problems arising in a highly industriali!ed economy. This new rule had to be based on the -nglishrule of strict liability, but had to be even more austere such that no firm carrying out an inherentlydangerous or ha!ardous activity might not escape from liability, irrespective of the fact that there wasany negligence involved or not. The court also pointed out that the duty owed by such an enterpriseto the society is absolute and non$ delegable/ and that the enterprise cannot escape liability byshowing that it had ta#en all reasonable care and there was no negligence on its part. The new rule asindicated by the )upreme Court are two0

• If the enterprise is permitted to carry on a ha!ardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing thecost of any accident (including the indemnification of all those who suffer harm in the accident*arising on account of such ha!ardous or inherently dangerous activity as an appropriate item of its over$ heads0

• The enterprise alone has the resource to discover and guard against ha!ards or danger and to provide warning against potential ha!ards.

The rule in Rylands v. Fletcher ,6 re%uires non$ natural use of land by the defendant and escape fromhis land of the thing, which causes damage. ut, the rule in M.C. Mehta v. Union of India, 7 is not

dependent upon any such conditions. The necessary re%uirements for applicability of the new rule arethat the defendant is engaged in ha!ardous or inherently dangerous activity and that harm results toanyone on account of an accident in operation of such ha!ardous or inherently dangerous activity.

The rule in Rylands (supra* will not cover cases of harm to persons within the premises where theenterprise is carried on and the persons outside the premises for escape of the things causing harmfrom the premises is not a necessary condition for the applicability of the rule. 1urther, the rulethough, strict in the sense that is not dependent on any negligence on the part of the defendant and inthis respect similar to the new rule, as it is subject to many e'ceptions but the rule in &.C. &ehta"scase is not only strict or absolute and is subject to no e'ception.

2 (1868) LR 3 HL 330

3 AIR 1987 SC 1086

4 AIR 1987 SC 1086

5 (1868) LR 3 HL 330

6 (1868) LR 3 HL 330

7 AIR 1987 SC 1086

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2nother important point of distinction between the two rules is in the matter of award of damages.amages awardable where the rule in Rylands, (supra* applies will be ordinary or compensatory3 but

in the cases where the rule applicable is that laid down in M.C. Mehta s case , the court can allowe'emplary damages and the larger and more prosperous the enterprise, the greater must be theamount of compensation payable by it. 2 small bump in the road was encountered in Charan !al "ah# v. Union of India, $ and doubts were e'pressed as to the %uantum of damages payable. ut the

)upreme Court set all doubts aside in another landmar# decision, Indian Co#ncil for %nvio& !e'al (ction v. Union of India, ) and it was held that the rule laid down in Mehta s case was not orbiter andwas appropriate and suited to the conditions prevailing in our country.

THE EVOLUTION OF THE RULE OF ABSOLUTELIABILITY

1or long, commercial enterprises had managed to escape the tight noose of liability, there being nocomprehensive common law remedy to cases of mass disasters. Cases of environmental pollutionwhere industries too# no care to ensure that there was no damage to the environment and henceconse%uently, to the society. 4owever, the )upreme Court finally managed to bell the cat/ when itevolved a new principle of liability to deal with the cases where the industry being carried out was of a ha!ardous and inherently dangerous nature. The new principle of law did not incorporate thee'ceptions provided under the Rylands rule, nor was it necessary to establish the re%uirements of non$ natural use of land, the 5escape" of thing, etc., which had rendered the rule of strict liabilityuseless in the modern era of rapid economic development.

The new rule coined by the then Chief Justice of India, P.N. hagwati of 2bsolute 6iability/, wasevolved in the celebrated case of M.C. Mehta v. Union of India. In that case, the )upreme Court wasdealing with claims arising from the lea#age of oleum gas on 7 th and 8 th ecember, 9:;< from one of the units of )hriram 1oods and 1ertili!ers Industries, in the city of elhi, belonging to elhi Cloth&ills 6td. 2s a conse%uence of this lea#age, it was alleged that one advocate practising in the Tis

4a!ari Court had died and several others were affected by the same.The action was brought into through writ petition under 2rt. => of the Constitution by way of PublicInterest 6itigation (PI6*. The Court had in mind that within the period of a year, this was the secondcase of large$ scale lea#age of deadly gas in India, as a year earlier due to the lea#age of &IC gasfrom ?nion Carbide Plant in hopal more than =@@@ people had died and la#hs of others weresubjected to various other #inds of diseases. If the rule of strict liability laid down in Rylands ()upra*was applied such situations, then those who had established ha!ardous and inherently dangerous/industries in and around thic#ly populated areas could escape the liability for the havoc caused

8 AIR 1990 SC 1480

9 AIR 1996 SC 1446

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thereby by pleading some e'ception to the rule in Rylands. 1or instance, when the escape of thesubstance causing damage was due to act of a stranger, say due to sabotage, there was no liabilityunder the rule.

)hriram Industries contended in the series of actions brought against it0

9. That a writ should not issue as it was a public company and not a )tate.

>. That every breach of the conditions specified in the previous order should not warrant closure of the plant.

=. That the chlorine plant should be allowed to restart operations.

The )upreme Court ruled negatively on each of the above$ mentioned issues. ut the main %uestion before the court of law was how to affi' liability. The )upreme Court too# a bold decision holdingthat it was not bound to follow the 9: th Century rule of -nglish law, and it could evolve a rule suitableto the social and economic conditions prevailing in India at the present day. It evolved the rule of 2bsolute 6iability as a part of Indian 6aw in the preference to the rule of strict liability laid down in

Rylands (supra*. It e'pressly declared that the new rule was not subject to any of the e'ceptions under the rule in Rylands (supra*.

2fter laying down the above mentioned rule, the court directed that the organisations that had filedthe petition may file actions in appropriate court within the period of > months to claim compensationon behalf of the victim of the gas lea#. C.J. hagwati observed in this conte't0

This rule evolved in the 9: th Century at a time when all these developments of science andtechnology had not ta#en place cannot afford any guidance in evolving any standard of liabilityconsistent with the constitutional norms and the needs of the present day economy and socialstructure. Ae do not feel inhibited by this rule, which was evolved in the conte't of a totally different#ind of economy. 6aw has to grow in order to satisfy the needs of the fast changing society and #eepabreast with the economic developments ta#ing place in this country. 2s new situation arises, the lawhas to be evolved in order to meet the challenges of such new situations. 6aw cannot allow our

judicial thin#ing to be constrained by reference to the law as it prevails in -ngland, or for that matter in any other foreign legal order. Ae, in India, cannot hold our hands bac# and I venture to evolve anew principle of liability which -nglish Courts had not done./

The )upreme Court thus evolved a new rule creating absolute liability for the harm caused by thedangerous substances were hitherto not there. The following statement of C. J. hagwati, which laiddown a new principle may be noted0

Ae, are of the view that an enterprise which is engaged in a ha!ardous or inherently dangerousactivity which poses a potential threat to the health and safety of the persons wor#ing in the factoryand residing in the surrounding areas owes an absolute and non$ delegable duty to the community toensure that no harm results to anyone on account of ha!ardous or inherently dangerous activity whichit has underta#en. The enterprise must be held to be under an obligation to provide that the ha!ardousor dangerous activity in which it has engaged must be conducted with the highest standards of safetyand if any harm results on account of such activity, the enterprise must be absolutely liable tocompensate for such harm, and it should be no answer to the enterprise to say that it had ta#en allreasonable care and that harm occurred without any negligence on his part./

The rule was summed up in the following words, with the assertion that this rule will not be subjectedto any of the e'ceptions recognised under the rules in Rylands (supra*.

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Ae would therefore, hold that where an enterprise is engaged in a ha!ardous or inherently dangerousactivity and harm results to anyone on account of an accident in the operation of such ha!ardous or inherently dangerous activity resulting, for e'ample, in the escape of to'ic gas, the enterprise sstrictly and absolutely liable to compensate all those who are affected by the accident and suchliability is not subject to any of the e'ceptions which operate vis$ a B vis the tortious principle of strict liability under the rule in Rylands (supra*.

The Court gave two reasons justifying the rule0

1irstly, that the enterprise carrying on such ha!ardous and inherently dangerous activity for private profit has a social obligation to compensate those suffering there from, and it should absorb such lossas an item of overheads, and secondly, the enterprise alone has the resource to discover and guardagainst such ha!ards and dangers./

It e'plained position in the following words0

If the enterprise is permitted to carry on any ha!ardous 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 ha!ardous or inherently dangerous activity as an appropriate itemof its overheads. )uch ha!ardous or inherently dangerous activity for private profit can be toleratedon only one condition that the enterprise engaged in such activities indemnifies all those who sufferson account of carrying on of such harmful or can say, dangerous substances regardless of whether itis carried on carefully or not. This principle is also sustainable on the ground that the enterprise alsohas the resource to discover and guard against ha!ards or dangers and to provide warning against

potential ha!ard./

The position was thus clarified0

Ae would also li#e to point out that the measure of compensation in the #ind of cases referred to,must be correlated to the magnitude and capacity of the compensation must have enterprise becausesuch compensation must have a deterrent effect. The larger and more prosperous the enterprise,greater must be the amount of compensation payable by it for the harm caused on account of anaccident in the carrying of the ha!ardous or inherently dangerous activity by the enterprise./

The )upreme Court through its landmar# judgement in the oleum gas lea# case bro#e the shac#lesthat had been binding the Indian Jurisprudence for the past many years. It evolved a new principle of liability that was in tune with the modern, industriali!ed society of the day. It laid down a precedentthat was to become the foundation for many renowned judgements in the years to come. The)upreme Court tightened the noose on erring industries and evolved the principle, which have laid

the foundation of environment protection in India.

REASONS BEHIND THE INAPPROPRIATION OFTHE OLD RULE IN INDIAN PERSPECTIVE

High Industrialisation ro!th

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The Indian economy is highly developing economy. The rule of )trict 6iability is very old one. Theold rule evaluates when there was very low industrial development so the old rule cannot be foundappropriate in highly growing economy in India.

Agri"ultural Us# o$ land

In India, the land is mostly used for agriculture. Therefore, it is appropriate to store the water in the

big tan# for the purpose of irrigation. The same thing does not prevail in the country from which it isdecided. Therefore, it does not fit in Indian perspective.

V#r% Old Rul#& Not A''ro'riat# in Pr#s#nt (orld

The old rule was given in 9: th Century, about more than 9


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the highest standards of safety and security and if any harm result son account of such negligentactivity, the enterpriseD institute must be held absolutely liable to the enterprise to say that it had ta#enall reasonable care and that the harm caused without any negligence on his part./

Bho'al gas L#a) Disast#r Cas#**

In &ay 9:;7, on the night of ecember >= mass disaster, the worst in the recent times, was caused bythe lea#age of &ethyl Isocyanate and other to'ic gases from the ?nion Carbide India 6td. (?CI6* at

hopal. It is a subsidiary of ?nion Carbide Corporation (?CC*, a multi$ national company, registeredin ?)2. 2bout >88@ people died instantaneously and lacs of people were seriously injured. 4owever,the toll of death had risen to 7@@@. )everal suits were filed against the ?CC in ?)2 district court of

New Eor# by the legal representatives of the deceased and many of the affected persons for damages.The ?nion of India under the hopal Fas 6ea# isaster (Processing of Claims 2ct*, 9:;< too# uponitself the right to sue for compensation on behalf of the affected parties and filed a suit for the same.2ll the suits were consolidated and dismissed by Judge Geenan held that Indian Judiciary must havethe +pportunity to stand tall before the world and to pass judgement on behalf of its own people./

2fter the judgement of the Judge Geenan, the Fovernment of India in the e'ercise of its power under the hopal Fas 6ea# isaster (Processing of Claims 2ct*, 9:;< filed a suit in the istrict Court of

hopal which awarded interim compensation for the amount of Hupees =


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2s to the withdrawal of criminal cases, it was held that that the %uashing and termination, if thecriminal proceedings brought about by orders dated 97 th and 9< th of 1ebruary re%uired to be and are,hereby reviewed and set aside./

2s to the %uantum of compensation it was argued that the principle laid down in M.C. Mehta v.Union of India, should be adopted. It was held by the court that the settlement cannot be assailed asviolative of &ehta principle which might have arisen I strict adjudication. In the matter of determination of compensation, also under the hopal Fas 6ea# isaster (Processing Claims 2ct*,9:;< and the scheme framed thereunder, there is no scope for applying the &ehta Principle in asmuch as the tort$ feasor, in term of the settlement for all practical purpose B stand nationallysubstituted by the settlement and which now represents and e'haust the liability of the allegedha!ardous entrepreneurs, vi!., ?CC ?CI6. Ae must all add that the &ehta principle can have noapplication against ?nion of India in as much as re%uiring it to ma#e good deficiency. If any, we donot impute to it the position of a joint tort$ feasor but only of a welfare state./

Indian Coun"il $or En+iron,#nt L#gal A"tion +- Union o$ India *.

The )upreme Court of India imposed the principle of &.C. &ehta case and held that once theactivity carried on is ha!ardous or inherently dangerous, the person carrying on such activity is liableto ma#e good the loss caused to any other person by his activity irrespective of the fact whether hetoo# reasonable care while carrying on his activity is by far the most appropriate and binding./

12 AIR 1996 SC 1446

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CASE ANALYSIS

/STRICT LIABILITY0

&.P. -6-CTHICITE +2H KKKK2ppellant

-ers#s

)42I6 G?&2HI 2N +H). KKKKHespondents

Citation1 >@@> (>* )CC 98>

Cora,1 G.T. Thomas J. and ).N. Phu#an J.

Cas#s R#$#rr#d1

Gaushnuma egum v. New India 2ssurance Co. 6td., (>@@9* > )CC :.

A. . )tate -lectricity oard v. )achin anerjee, (9:::* : )CC >9. Cambridge Aater Co. 6td. v. -astern Countries 6eather Plc., (9::7* 9 2ll -H =7. &.C. &ehta v. ?nion of India, (9:; * 9 )CC =:@2C 88>. Hylands v. 1letcher, (9;8;* = 46 ==@.

Cas#s Dis"uss#d1

Hylands v. 1letcher, (9;8;* = 46 ==@.

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&.C. &ehta v. ?nion of India, (9:; * 9 )CC =:@2C 88>.

Cas#s Distinguish#d1

A. . )tate -lectricity oard v. )achin anerjee, (9:::* : )CC >9.

Fa"ts1

2 live wire got snapped and fell on the public road which was partially inundated with rainwater. Notnoticing the wire, a cyclist, aged = years, while returning home at night from the factory where hewas employed, rode over the wire which twitched and snatched him and he was instantaneouslyelectrocuted. 2 claim of damages made by the dependants of the deceased was resisted by theappellant )tate -lectricity oard on the ground that the electrocution was due to the clandestine

pilferage committed by a stranger unauthorisedly siphoning the electric energy from the supply line.The 4igh Court directed the Court to pay as compensation, 7.=7 la#hs to the claimants. efore the₹)upreme Court, the appellant sought to rely on the e'ception to the rule of strict liability being an

act of stranger/.

H#ld1

-ven assuming that all safety measures had been adopted, a person underta#ing an activity involvingha!ardous or ris#y e'posure 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 themanagers of such underta#ing. The basis of such liability is the foreseeable ris# inherent in the verynature of such society. The liability cast on such person is #nown, in law, as strict liability/. It differsfrom the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the unforeseeable harm could be avoided by ta#ing reasonable

precautions.

+ne of the seven e'ceptions to the doctrine of strict liability is0 act of stranger/ i.e. if the escape wascaused by the unforeseeable act of the stranger, the rule does not apply. ut that e'ception is notavailable to the oard as the act attributed to the third respondent should reasonable have been

anticipated or at any rate its conse%uences should have been prevented by the appellant oard.2ppeal ismissed.

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CASE ANALYSIS

/A2solut# Lia2ilit%0

--P2G NITHIT- 6T . KKK2ppellant

-ers#s

)T2T- +1 F?J2H2T 2N +H). .KK...Hespondents

Citation1 (>@@7* 8 )CC 7@>

Cora,1 ). Hajendra abu, C.J. and F.P. &athur, J.

Cas#s r#$#rr#d1

Mellore Citi!ens" Aelfare 1orum v. ?nion of India, (9::8* < )CC 87 . Pravinbhai Jashbhai Patel v. )tate of Fujarat, (9::9@ Consumer -ducation and Hesearch Centre v. ?nion of India, (9:: Mirender Faur v. )tate of 4aryana, (9:: )CC < &.C. &ehta v. ?nion of India, (9:; * 7 )CC 78= &.C. &ehta v. ?nion of India, (9:; * 9 )CC =:<

Cas#s dis"uss#d1

Pravinbhai Jashbhai Patel v. )tate of Fujarat, (9::9@

Cas#s distinguish#d1

Pravinbhai Jashbhai Patel v. )tate of Fujarat, (9::9@

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Fa"ts1

2 petition was filed before the 4igh Court in public interest alleging large$ scale pollution caused by industrielocated in Fujarat Industrial evelopment Corporation (FI C* Industrial -state at Nandesari. It is alleged thaeffluents discharged by the said industries into the effluent$ treatment project had e'ceeded certain parameter fi'ed by the Fujarat Pollution Control oard (FPC *, thereby causing damage to the environment. +n :$


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CONCLUSION

The rule of absolute liability has become a messiah for the society, in the sense that it is one rule that the societcan always thin# ban# on for #eeping establishments producing ha!ardous and inherently dangerous products ahay. Aith the demise of the rule of strict$ liability in the post$ modern, industrialised era, the rule of absolutliability provides an effective weapon to the Indian Courts to effectively combat environmental pollution.

The humane aspect of the application of the rule of course, stands out. The untold misery suffered by the people oelhi, hopal and many other cities and towns around the country3 e'emplified in the cases discussed above

ma#es the e'istence of such a rule more important.

Ahile the courts in 2merica and -ngland have not made any specific rule such as the one in India, they hav

evolved their own e'isting principle of strict absolute liability to suit their needs. Ahile the nomenclature I still bit dubious with the interchangeable use of the words strict/ and absolute/. The rule has been able to coververy large e'tent, to help society safeguard environmental laws.

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