Wednesday 28 September 2016

Liability under Torts

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.

2) Strict Liability[4][5][6][7]

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
[19] STATE LIABILITY IN TORT : NEED FOR LEGISLATION, Dr. Smt. Kamla Jain


No comments:

Post a Comment