Strict and absolute liability

1. The rule in Rylands v. Fletcher

In Rylands v. Fletcher (1868) the defendants, mill owners, employed independent contractors to build a reservoir on their land to supply water to the mill. Under the site were old disused mine shafts, which the contractors negligently failed to seal. When the reservoir was filled, water burst through the shafts and flooded the plaintiff’s coal mine on adjoining land. The defendants themselves were not negligent, but they were held liable.

Blackburn J. stated the rule in the Exchequer Chamber: “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, is prima facie answerable for all the damage which is the natural consequence of its escape.” The House of Lords affirmed, Lord Cairns adding that the use of the land must be non-natural.

Liability is strict because it does not depend on negligence. It is not absolute, because of the exceptions below.

2. Essentials

• A dangerous thing, likely to do mischief if it escapes: water in bulk, gas, electricity, explosives, fumes, poisonous vegetation.
• Escape from the land under the defendant’s control to a place outside it. In Read v. J. Lyons & Co. (1947) an inspector injured by an explosion inside a munitions factory failed under the rule, because nothing escaped.
• Non-natural use of land: some special use bringing increased danger to others, not the ordinary use of land (Rickards v. Lothian, 1913, ordinary domestic water supply in a building is natural use).

The rule applies in India. In M.P. Electricity Board v. Shail Kumari, 2002 INSC 21, (2002) 2 SCC 162, a cyclist was electrocuted by a live wire that had snapped and was lying on a flooded road at night. The Board was liable under the rule of strict liability. It was no answer that a third party had tapped energy illegally from the line: the Board should have ensured the supply was cut when the wire snapped.

3. Exceptions

• Plaintiff’s own default. In Ponting v. Noakes (1894) the plaintiff’s horse reached over the boundary, ate leaves of a poisonous yew tree on the defendant’s land and died; the harm was due to the horse’s intrusion.
• Act of God. Nichols v. Marsland (1876): artificial lakes overflowed after an extraordinary rainfall.
• Consent of the plaintiff, express or implied, including where the source of danger is kept for the common benefit of both parties (Carstairs v. Taylor, 1871, water kept in a building for the use of all occupiers).
• Act of a stranger. In Box v. Jubb (1879) a reservoir overflowed because a third party emptied his own reservoir into the stream feeding it; and in Rickards v. Lothian a stranger blocked a basin and left the tap running.
• Statutory authority. Green v. Chelsea Waterworks Co. (1894): a water main laid under statutory duty burst without negligence.

In Cambridge Water Co. v. Eastern Counties Leather plc (1994) the House of Lords added that the damage must be of a foreseeable type. In England the rule has become a branch of nuisance.

4. Absolute liability: M.C. Mehta (oleum gas)

In December 1985 oleum gas leaked from a plant of Shriram Foods and Fertiliser Industries in Delhi, injuring several people, one of whom died. It came a year after Bhopal. In M.C. Mehta v. Union of India, 1986 INSC 281, (1987) 1 SCC 395, AIR 1987 SC 1086, a Constitution Bench headed by Bhagwati C.J. held that Rylands v. Fletcher, a nineteenth-century rule, did not meet the needs of a modern industrial society. It laid down that:

• an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community to ensure that no harm results;
• if harm results, the enterprise is absolutely liable to compensate all those affected, and none of the exceptions to Rylands (act of God, act of stranger and the rest) is available;
• escape from the land and non-natural use are not required, so harm to workers inside the premises is covered; and
• compensation must be correlated to the magnitude and capacity of the enterprise, so that it acts as a deterrent: the larger and more prosperous the enterprise, the greater the compensation.

The Court justified the rule on two grounds: the enterprise carries on the activity for profit and should bear its cost, and only the enterprise has the resources to discover and guard against the hazards.

5. Bhopal

On the night of 2–3 December 1984 methyl isocyanate gas escaped from the Union Carbide India Ltd. plant at Bhopal, killing thousands and injuring hundreds of thousands. The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 made the Union of India the sole representative of the victims. Suits in the United States were dismissed on the ground that Indian courts were the proper forum. In February 1989 the Supreme Court recorded a settlement under which Union Carbide Corporation paid US $470 million, and gave its reasons in Union Carbide Corporation v. Union of India, 1989 INSC 179, (1989) 3 SCC 38. The Act was upheld in Charan Lal Sahu v. Union of India, 1989 INSC 395, (1990) 1 SCC 613. In 2023 a Constitution Bench dismissed the Union’s curative petitions seeking additional compensation from the company: Union of India v. Union Carbide Corporation, 2023 INSC 222. The settlement was criticised because it did not apply the M.C. Mehta measure of compensation linked to the capacity of the enterprise.

6. Indian Council for Enviro-Legal Action and polluter pays

In Indian Council for Enviro-Legal Action v. Union of India, 1996 INSC 237, (1996) 3 SCC 212, chemical industries at Bichhri village in Rajasthan produced H-acid and left thousands of tonnes of toxic sludge which poisoned the soil and wells of the village. The Supreme Court reaffirmed the M.C. Mehta rule of absolute liability as better suited to Indian conditions than Rylands, and applied the polluter pays principle: the polluter must pay the cost of remedying the damage to the environment, as well as compensating the victims. In Vellore Citizens Welfare Forum v. Union of India, 1996 INSC 952, (1996) 5 SCC 647, the Court held the polluter pays and precautionary principles to be part of the law of India.

7. Public Liability Insurance Act, 1991

The Act was passed after Bhopal to give quick, limited relief. Section 3 makes the owner of a hazardous substance liable to give relief for death, injury or damage to property caused by an accident in handling it, without proof of fault (no-fault liability) and at fixed rates set out in the Schedule. Section 4 requires the owner to take an insurance policy covering this liability, and the Act creates an Environment Relief Fund. The relief is in addition to any larger claim in tort. The National Green Tribunal Act, 2010 also directs the Tribunal to apply the principle of no fault in cases of accident.

How this is examined

As an essay: “Trace the development from strict liability to absolute liability in India” (a regular KSLU question). Set out Rylands, its essentials and five exceptions, then M.C. Mehta with its four propositions, Bhopal, Enviro-Legal Action and the 1991 Act. As short notes: the exceptions to Rylands, polluter pays, or the Public Liability Insurance Act. A problem on a factory gas leak injuring workers is answered under M.C. Mehta, pointing out that Rylands would fail because there was no escape.