Strict liability and vicarious liability

1. Strict liability: meaning

Strict liability is liability without proof of intention or negligence. Salmond calls it liability for inevitable mistake or accident: the defendant is liable although he took every care. It is justified on grounds of policy: the defendant creates an unusual risk for his own benefit and should bear the cost of the harm it causes; proof of fault would be too difficult for the victim; and the threat of liability makes people take more care than the law could require.

2. Strict liability in civil law

• Rylands v. Fletcher (House of Lords, 1868). The defendant had a reservoir built on his land. Unknown to him, old mine shafts beneath it connected with the plaintiff’s mine, which was flooded. Though the defendant was not negligent, he was liable. Blackburn J.: a person who for his own purposes brings on his land and keeps there anything likely to do mischief if it escapes must keep it in at his peril. Lord Cairns added the requirement of non-natural use of land. Exceptions: act of God, act of a stranger, the plaintiff’s own default, consent, and statutory authority.
• Absolute liability in India. In M.C. Mehta v. Union of India, 1986 INSC 281, (1987) 1 SCC 395 (the oleum gas leak case), the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, and is liable for harm caused by an accident in that activity without any of the exceptions to Rylands v. Fletcher. The measure of compensation must be related to the magnitude and capacity of the enterprise, so as to have a deterrent effect. In Indian Council for Enviro-Legal Action v. Union of India, 1996 INSC 237, (1996) 3 SCC 212, the Court applied the absolute liability rule and the polluter pays principle against chemical industries that had poisoned the soil and water of Bichhri village.
• Statute. The Public Liability Insurance Act, 1991 and the no-fault liability provisions of the Motor Vehicles Act, 1988 impose liability without fault.

3. Strict liability in criminal law

A statute may make an offence one of strict liability, expressly or by necessary implication: State of Maharashtra v. Mayer Hans George, 1964 INSC 176, AIR 1965 SC 722 (gold carried in transit in breach of a foreign exchange notification). Such offences are mostly regulatory: adulteration, weights and measures, pollution, licensing. Their justification is the protection of public welfare where proof of a guilty mind would defeat enforcement.

4. Vicarious liability: meaning and justifications

Vicarious liability is the liability of one person for the act of another, arising from the relationship between them. The commonest case is the liability of a master for the tort of his servant committed in the course of employment. It is expressed in the maxims qui facit per alium facit per se (he who acts through another acts himself) and respondeat superior (let the superior answer).

Salmond explains that vicarious liability is in civil law a rule of policy, and that it is largely unknown to criminal law, where a person is punished for his own acts. The justifications offered are:

• the master has the deeper pocket and can insure or spread the loss;
• the master takes the benefit of the servant’s work, and should bear its risks;
• the master chose and controls the servant, and liability encourages care in selection and supervision;
• the servant’s act is in law the master’s act done through an instrument.

5. Incidents (relationships giving rise to it)

• Master and servant: the principal case.
• Principal and agent: for torts of the agent within his authority (Lloyd v. Grace, Smith and Co., House of Lords, 1912, where a solicitor’s clerk defrauded a client while acting within his apparent authority).
• Partners: each partner is liable for the wrongful acts of another in the ordinary course of the firm’s business (section 26 of the Indian Partnership Act, 1932).
• The State for its servants, under Article 300.
• Owner and driver of a motor vehicle, under the Motor Vehicles Act, 1988.

6. The master and servant relationship

The master is liable only if (1) the wrongdoer is his servant, and (2) the wrong was done in the course of employment.

• Who is a servant. The traditional test is control: a servant is one whom the master can direct as to what to do and also as to how to do it. An independent contractor is told what to do but chooses how; the employer is not generally liable for his torts. Because modern employees (surgeons, engineers, pilots) are not controlled in the manner of their work, courts added the integration test (Denning L.J., Stevenson Jordan and Harrison v. Macdonald and Evans, 1952: a servant’s work is an integral part of the business) and the multiple test (control, payment, ownership of tools, chance of profit, risk of loss).
• Course of employment. An act is in the course of employment if it is a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing an authorised act (Salmond’s formula). The master is liable even where the servant acts against express orders, if he was still doing the master’s work. He is not liable where the servant was on a “frolic of his own”. Lister v. Hesley Hall Ltd. (House of Lords, 2001) added the close connection test: whether the wrong was so closely connected with the employment that it would be fair to hold the employer liable.
• The State as master. In State of Rajasthan v. Vidyawati, 1962 INSC 38, AIR 1962 SC 933, the driver of a government jeep, bringing it back from a repair workshop, killed a pedestrian. The State was held vicariously liable; driving the jeep was not an exercise of sovereign power.

How this is examined

As a note or essay on vicarious liability: January 2026, Q.9(c) (10 marks); “Explain the master and servant relationship under vicarious liability” (June 2025, Q.5(a)); “What is vicarious liability? Explain the incidents of vicarious liability” (February 2025, Q.5(a)). Give the meaning and maxims, the justifications, the incidents, the tests for a servant, the course of employment with cases, and Vidyawati. Strict liability is set as a short note or as part of the theory of liability; give Rylands v. Fletcher, M.C. Mehta and Mayer Hans George.