The word ‘liability’
means the condition of being responsible for something; something for which
someone is responsible; an obligation or duty to do something or pay a sum of
money; a possible claim against a person or business[1]. A defendant, or ‘tortfeasor’ (a tortfeasor is one who
commits a tort), must be capable, legally, of being sued and a claimant, the aggrieved party, must have the capacity
to sue.
In law, Liabilities are
of many types, the main of which are -:
1. Vicarious
Liability
2. Strict
Liability
3. Absolute
Liability
1)
Vicarious Liability
Vicarious means - 1. Felt or undergone as if one
were taking part in the experience or feelings of another and, 2. Endured or done by one person
substituting for another[2]. So vicarious liability is a
concept in which a person is held liable for a tort committed by some other
person. Judicially,
the term was considered in John Doe v
Bennett 2004 SCC 17 where Chief Justice McLachlin of Canada's Supreme
Court wrote, in a case that considered the liability of a church for the sexual
assault of one of its priests: "The doctrine of vicarious liability
imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but
on the ground that as the person responsible for the activity or enterprise in
question, the employer or principal should be held responsible for loss to
third parties that result from the activity or enterprise."
Thus, ‘Vicarious
liability’ means liability which falls on one person as a result of an action of another person, i.e. it is not personal
primary liability. In terms of the law of tort, it means that one person is made to account for the damage
caused by another person’s tort.
In the law of tort generally,
liability is of a primary nature,
i.e. tortfeasors are responsible only for damage caused by their own tortious behaviour. However, where
there is a legal relationship between persons and a tort is committed by one
party to the relationship, and that act is
specifically referable to the relationship, it is possible that the law of tort
will impose vicarious liability on another
party to the relationship.[3]
Vicarious liability includes-:
1) Employer’s Liability- Employers are vicariously liable, under
the respondeat superior doctrine, for negligent acts or omissions
by their employees in the course of employment.
Respondeat
superior is a Latin term which means LET THE MASTER ANSWER. This
rule is also called the "Master-Servant Rule".
2) Principal’s Liability- In this, a principal
is liable for the acts done by the agent in the course of employment. A
bonafide principal agent relationship should be proved in order to apply this
type of liability.
3) Parental Liability-This is a concept which
is evolving in the United States. In this, the parent is held liable for the
tort acts done by his child.
In some cases tort law
imposes liability on defendants who are neither negligent nor guilty of
intentional wrongdoing. It makes some persons responsible for damages their actions
or products cause, regardless of any "fault" on their part.
Known as STRICT LIABILITY, or liability without fault,
this branch of torts seeks to regulate those activities that are useful and
necessary but that create abnormally dangerous risks to society. These
activities include blasting, transporting hazardous materials, storing
dangerous substances, and keeping certain wild animals in captivity.
Persons who engage in ultra
hazardous activities may be morally blameless because no amount of care or
diligence can make their activities safe for society. However, such persons
will nonetheless be held legally responsible for harm that results from their
activities as a means of shifting the costs of injury from potential victims to
tortfeasors. As a matter of social policy, then, individuals and entities that
engage in abnormally dangerous activities for profit must be willing to ensure
the safety of others as a price of doing business.[8]
In John Campbell Law Corp., Justice Melnick wrote:
“In the case of Rylands
v. Fletcher the defendant's underground water reservoir caused an old
mine shaft owned by the plaintiff to collapse. Although the court found that
Mr. Rylands and Mr. Horrocks (the defendants) were not negligent, they were
still strictly liable for damages. Mr. Justice Blackburn stated- '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, he is prima facie answerable
for all the damage which is the natural consequence of his escape. 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, or the act of God;
but as nothing of this sort exists here, it is unnecessary to inquire what
excuse would be sufficient.”
Here, the case
Rylands v. Fletcher[9]
(evolved in year 1866) is the landmark case from which the doctrine of strict
liability was introduced. The rule laid down in this case regarding strict liability
is –
“The person who, for his own purpose, brings on his land 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.”
The brief summary of the case is as follows[10]-:
Facts: Rylands (D) possessed a piece of property but
did not have rights to the mines and veins of coal under the surface. Fletcher
(P) possessed coal mines located near Ryland’s property. D constructed a
reservoir on his property above an abandoned coal mine that was connected to
P’s mines below the surface. The shafts of the abandoned mine below D’s
property had been filled in with soil and D did not know or suspect that there
was an abandoned mine below the surface.
When the reservoir
was filled, water flowed into P’s mines causing the mine to shut down. P sued D
for damages and lost profits.
Issue 1: Is an absolute duty imposed on a landowner who
lawfully brings something onto his land which, while harmless while it remains
there, will naturally cause damage if it escapes?
Issue 2: Will a party be liable for damage caused by a
thing or activity that is unduly dangerous and inappropriate in a certain
place, in light of the character of the place and its surroundings?
Holding and Rule 1: Yes.
The law casts an
absolute duty on a person who lawfully brings on his land something which
though harmless while it remains there will naturally cause damage if it
escapes. Ds are prima facie answerable for all the damage which is the natural
consequence of its escape. The plaintiff does not have to show negligence. The
defendant however can use as a defence a showing that the escape was P’s fault
or that it was caused by a major act of God.
Holding and Rule 2: Yes.
Where the owner of
land, without wilfulness or negligence, uses his land in the ordinary manner of
its use, though mischief should thereby be occasioned to his neighbour, he will
not be liable in damages. But if he brings upon his land anything which would
not naturally come upon it, and which is in itself dangerous, and may become
mischievous if not kept under proper control, though in so doing he may act
without personal wilfulness or negligence, he will be liable in damages for any
mischief thereby occasioned.
However, there are
certain exceptions to the rule of strict liability. it is not applicable when –
– the escape of the object was due to
act of God
– the escape was a result of an act
of a stranger, or default of the person injured
– the thing was present with the
consent of the person injured or for common benefit of person injured.
– it is the consequence of an act
done for public purpose in the discharge of a public duty under the express
authority of a statute.[11]
3) Absolute Liability
This is similar to the
rule of strict liability, except for the fact that there are no defences to it.
In effect, there are absolutely no excuses for the harm caused. These rules
sound unfair however these rules are for specific public interest because very
dangerous activities are involved. This rule of absolute liability was laid
down by the Supreme Court in the famous case of M.C Mehta v. Union of India[12] (1987). This case dealt
with the leakage of poisonous Oleum gas from one of the units of Shriram
Industries in Delhi, as a result of which, several people were injured. The
court held that irrespective of any lack of negligence or intention, the
defendant was absolutely liable for the damage caused. They said that in this
rule of absolute liability, there were no defences as were there in the Rylands
strict liability rule. The logic court used was that a person who carries on a
dangerous activity for profit is responsible for any harm that may flow from
such activity. Therefore, the rule laid
down by Supreme Court of India in the Oleum Gas Leak Case was –
n Where an enterprise is engaged in a hazardous or
inherently dangerous activity, 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 exceptions.
n The enterprise cannot escape liability by showing
it had taken all reasonable care and there was no negligence on its part.
This principle, however, has been rarely applied
since it was formulated.
2.
There are certain
relationships in our legal system in which one person vicariously becomes
liable for the wrongs committed by another person. Though this may not be
desirable, but it is something which cannot be done without in order to promote
law and justice in the society. In all the instances where a second person becomes
vicariously liable, the person committing the tort is in some kind of
relationship with the other person. And the relationship is such that the
person committing the tort is acting on behalf of the other person. In such
situations, the person can be made vicariously liable for the acts of the other
person acting on his behalf. When we do this, we ensure that the aggrieved
party has someone to address his grievances against, and this also in turn
keeps a check on the person hiring the wrong-doer to keep a check on him. So,
although this may not be ideal from the employers’ or principals’ point of
view, it is certainly helpful to the society in placing blame and for law to
make people answerable.
However, there should
always be a limit of making a person liable for a mistake he did not commit,
but has to be liable because of his relationship with the tortfeasor. In our
legal system, it has been clearly laid down as to how far a person can be made
liable. In setting these limits, utmost care should be taken of the fact that
the personal rights and freedoms of the person should not be violated in any
case. Some circumstances and relations
where vicarious liability comes into being are the following -
1) Master- Servant Relation
A servant is a person employed by another person to do the work under
the latter’s decision and control. The tests used to find whether a person is
the servant are a) the direction and control test and the b) hire-and-fire
test. Servants can be given the direction on how to do a work and they are
under the control of the master. They can also be hired and fired at the
discretion of the master so the person, who passes these tests, can be said the
servant of the person and the master can be held liable for the acts of the
person who pass this test.
This
form of liability is based on the satisfaction of the following three
conditions –
·
There must exist a relationship
of ‘employer’ and ‘employee’
·
That employee must have
committed a tort (for which he ia always personally liable) and
·
That tort must have been
committed ‘in the course of employment’ of the employee.
2)
Principal- Agent Relation
An agent is someone
who is authorized to do an act by
another person (principal) and consequently, acts on his behalf. The difference
between servants and agents is that while the hire and fire test applies to
both, the agents do not pass the direction and control test since they act
largely independently. The agent, though taking instructions from the
principal, is not under anyone’s control as he himself decides how to do the
work. An example of this is a taxi driver. You can only tell him about your
destination and cannot give the directions of the route to the driver or tell
him about the speed at which he should drive.
A bonafide principal agent relationship should be proved in order
to apply this type of liability.
·
If the agent has actual or
apparent authority, the agent will not be liable for acts performed within the
scope of such authority, so long as the relationship of the agency and the
identity of the principal have been disclosed.
·
When the agency is undisclosed
or partially disclosed, however, both the agent and the principal are liable.
·
Where the principal is not bound because the
agent has no actual or apparent authority, the purported agent is liable to the
third party for breach of the implied warranty of authority.
·
If the agent has acted without
actual authority, the principal is nevertheless bound because the agent had
apparent authority; the agent is liable to indemnify the principal for any
resulting loss or damage.
If the agent has acted
within the scope of the actual authority given, the principal must indemnify
the agent for payments made during the course of the relationship whether the
expenditure was expressly authorized or merely necessary in promoting the
principal’s business.[13]
3)
Partners
In a partnership (Where
people come together to do a business. These people all have a stake in
business and they share profits and suffer losses), the partners are
responsible for each other’s actions during the course of employment. The
partners can be held jointly and severally liable for each other’s actions.
This can be viewed in the sense that each partner is the agent of all the
others.
To be held
vicariously liable, the necessity is that the act should be in the course of employment. This means
that the act has been directly authorized by the master or comes within a group
of acts that the mater impliedly requires the servant to perform. The course of
employment also works for the agents.
This provision is
given in the law because the law is trying to protect the injured person from
not being able to claim against the servant. If the law didn’t have such
provision then the injured person would have proceeded against the servant, who
probably would not be in a position to adequately compensate the injured
person.
The extent of holding
a person vicariously liable is determined per case and there are no set of
regulations and rules regarding the extent to which a person is held liable.
There is a very thin margin when holding vicariously liable can lead to
violation of a person’s rights and freedoms. But in my opinion the concept of
vicarious liability is necessary to ensure fair justice.
3.
The most basic and
sacrosanct of all legal principles is that a person is liable only for the harm
caused by him. With development and newly emerging technologies, however, it
became necessary to expand this inflexible principle to cater to certain
situations where a person is held liable for harm that he did not cause he may
be held liable.
To apply the rule of
strict liability, the court laid down the following criteria -:
a) A dangerous thing must have been brought by the person on his land
Numerous things fall
into this category of ‘dangerous’, e.g. sewage, noxious fumes, explosives, etc.
b) Such dangerous thing must have escaped
By escape, it is
meant that the dangerous thing goes beyond the control of the defendant. For
instance, if your neighbour’s pet dog puts his head over the boundary hedge,
nibbles some poisonous berries that you have been growing, and dies, then that
would not constitute ‘escape’.
c) The thing must have been intended to be used for some non-natural
purpose
Lots of things that we use in our
everyday life are dangerous. For example, fire, electricity etc. However, we
use such things in our homes for lots of natural reasons, like cooking, heat,
etc. In order for the rule of strict liability to apply, it is necessary that
the dangerous thing be used unnaturally. For example, whereas water for washing
clothes is natural, large quantities of water for supplying a mill is
non-natural. Similarly, fire burning in the fire place at home would be a
natural use, and thus, if such fire were to escape, the rule of strict
liability would not apply.
To
know whether a person is strictly or absolutely liable, we need to know the
difference between strict and absolute liability which is that ‘Strict
liability’ refers to liability despite the absence of any mens rea in
relation to one or more elements of the actus reus of an offence.
‘Absolute liability’ refers to liability despite the absence of any mens rea
in relation to the elements of the Actus Reus and without the
availability of any defence other than that the defendant is under 10 (the age
of criminal responsibility)[14].
But strict liability has some defences like -:
1) The
fault of the Plaintiff himself
2) Act
of God
3) Act
of Third Party
4) Plaintiff’s
consent to bringing and keeping of dangerous thing
5) Statutory
Authority
Some landmark cases include the Rylands v.
Fletcher for the strict liability and M.C. Mehta v. Union of India for absolute
liability. Other examples are-
1) Strict
Liability
Facts: While Powell (D) was driving his tractor on a
highway, it emitted sparks which struck and ignited haystacks on Fall’s (P)
land. Powell had not been travelling over the speed limit at the time and had
not been negligent. The trial court followed the decision in Rylands v. Fletcher and stated “that when a man brings or uses a thing of a dangerous
character on his own land, he must keep it in at his own peril and is liable to
the consequences, if it escapes and does injury to his neighbour.” Powell
appealed the trial court’s ruling in favour of Fall.
Issue: Is a party responsible for damages caused by his
own dangerous acts if he committed no acts of negligence?
Holding and Rule: Yes. If one uses a dangerous machine, he is
liable for any damages caused. The court held that even though a statute
allowed D to operate his tractor on the highway he was still liable for the
damage.
Disposition: Affirmed. Judgment for P.
4.
Absolute
liability is the tortfeasor's responsibility for injuring another regardless of
intent, negligence, or fault. The most important type of strict liability is product liability, a legal theory under which the
manufacturer or other seller of unreasonably dangerous or defective product is
held liable for injuries the product causes. Individuals in possession of wild
and dangerous animals are also subject to absolute liability for injuries
caused by those animals[15].
Absolute liability
was first introduced in the case of M.C. Mehta v. Union of India in which
Justice Bhagwati said-: “ We would therefore hold that where an enterprise is
engaged in 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 tortuous principle of strict liability
under Rylands v. Fletcher”
The imposition of absolute liability in the
criminal law is widely thought by academics to be unjustified. There is,
moreover, a broad consensus about why it is wrong. Absolute liability leads to
conviction of persons who are, morally speaking, innocent. Convicting and
punishing those who do not deserve it perpetrates a serious wrong.
In the merits of absolute liability, it can be argued that -:
a) Absolute liability may also increase the
deterrent effect of the prohibition, leading to fewer instances of doing
because the use of absolute liability tends to encourage a higher level of
precautions by potential defendants and;
b) It gives a background of support to
certain relational liabilities like in Workmen’s Compensation where
compensation is given even without fault[16].
The demerits include-:
a)
It leads to gradual extension of the
idea of fault to all torts;
b)
It has limited application. Only
limited to hazardous activity;
c)
It gives too much emphasis on
enterprise liability
5.
Yes, the state can
also be held liable for the torts committed by its employees in the course of
employment. The present position is that the State is treated like any other
employer. However, the courts are reluctant to order the government to pay
damages for any torts committed by its servants or agents in the course of
employment.
The Indian law was in
a state of confusion from its colonial times. This was because the concept of
tortious liability – as it existed in England- was blindly followed in India.
Though liability existed in some areas, the Indian courts had been so obsessed
with the maxim ‘King can do no wrong’ that they made a distinction between
sovereign and non-sovereign functions[17]. The decision of the
Supreme Court in Kasturi Lal v. State of Uttar Pradesh[18] laid down that the
exercise of a sovereign function will not give rise to a tort action. The
decision was erroneous, and to an extent was later resolved by decisions.
The Supreme Court in
cases such as Sebastian Hongray v. Union of India (1984), Bhim Singh v. State
of Jammu and Kashmir (1986) and Rudul Shah v. State of Bihar (1983) has
recognised the liability of the state for wrongs of its servants and agents.
The most common wrongs have involved the police or the custom authorities.
In view of the judgement of the Supreme Court in
Smt. Nilabti Behara's case the situation has again become resuscitated, in as
much as the defence of 'sovereign immunity' is now available, in a case for
damage save the tortious acts of the public servants committed while
discharging their statutory functions which affected the life and liberty of
the individual, but not the property. Of course the individual liability of the
public servant for his tortious acts is always there. The victim and his legal
heirs can always therefore proceed against the erring public servant for his
tortious acts in a private action. But such remedy against the public servant
well-nigh is as good as no remedy at all. It is neither practical nor
efficacious remedy and is nothing but chasing a mirage. That apart the other
side of the coin is also to be seen. The public servant is not acting in his
individual capacity, but as an agent or a representative of the State. ‘At
times in his anxiety while discharging the official functions might exceed hi powers
and limits. Absolutely no personal motive can be attributed in such cases.
Therefore, it is not reasonable to mull the official, with damage, who
committed the act of negligence while discharging his official functions in
good faith. Unless motive is attributed to him, he cannot be made liable
personally for his official acts. But all the same the erring official is not immune
from any action, and his responsibility shall be fixed, and proceeded against, either
departmentally or by initiating appropriate action including prosecution.
Indeed such an action will deter the public servants and desist them from
committing arbitrary and excessive acts under the garb of official duties[19].
The position is still
unclear and considering how often people are wronged by the State authorities,
the crisis is likely to worsen
Dev Chaudhary
[1] The Essential Law
Dictionary, By Amy Hackney Blackwell, 1st Edition, Sphinx Publishers
[2] The American Heritage®
Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton
Mifflin Company.
[3] Hogson – Chap 1 –
Liability in torts
[4] http://www.answers.com/topic/strict-liability
[5] http://www.lawteacher.net/PDF/Strict%20Liability%20Table.pdf
[6] http://duhaime.org/LegalDictionary/S/StrictLiability.aspx
[7] http://www.handwashingforlife.com/strict_liability
[9] Rylands v. Fletcher, L.R. 3 H.L.
330
[11] Law of torts – Mohit
Saraf. Luthra and Luthra Law Offices
[12] M.C. Mehta and others
v. Union of India and Others, AIR 1987 SC
1086
[13] Pandia - Principles of Mercantile Law, 8th edition, by Ramkrishna
R.Vyas
[14] www.oup.com/uk/orc/bin/9780199231638/card_ch06.pdf
[17] The first case in this regard was P.O. Steam Navigation Co. V.
Secretary of State, 1868 5 Bom. H.C.R. App. P. 1. , where a distinction was
made. It was followed by the decision in State of Rajasthan v. Vidyawati.
A.I.R. 1962 S.C. 933. In so far as the tort was committed in the discharge of a
non-sovereign function.
[18] A.I.R. 1965 S.C. 1039
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