Generally, a person is liable for his own wrongful acts and one does not
incur any liability for the acts done by others. In certain cases, like
vicarious liability, the liability of one person for the act done by another
person may arise. Liability can further be classified as strict and absolute
It is a kind of liability under which a person is legally responsible for the
consequences flowing from an activity even in the absence of fault or criminal
intent on the part of the defendant. It is basically a legal doctrine that holds
a party (defendant) responsible for its actions, without the plaintiff having to
prove the negligence or fault on the part of defendant. When any person involves
in ultra hazardous activities such as keeping wild animals, using explosives or
making defective products, then he/she may be held liable if any other person is
injured because of that activity, even if the defendant took necessary
precautions and followed safety requirement.
In Rylands v. Fletcher case,
the defendant got a reservoir constructed
through independent contractor. There were old unused shafts under the site of
the reservoir, which the contractors failed to observe and so did not block
them. When the water was filled in the reservoir, it burst through the shafts
and flooded the plaintiff's coal mines on adjoining land.
The defendant did not know about the shaft and had not been negligent, but he
was held liable. This is also called the “No fault
' liability. In the
given case, the liability recognised was 'strict liability
' i.e. even if
the defendant was not negligent or did not cause any intentional harm, he could
still be liable under the rule.
Essentials of Strict LiabilityFor the application of the rule, the following three essentials should be
- Dangerous Things
According to this rule, the liability for the escape of thing from one's
land arises only when the thing collected was a dangerous thing. In Rylands
v. Fletcher, the thing was large water body (reservoir). The rule is also
applied to gas, electricity, vibration, sewage, explosive, etc.
For the rule in Rylands v. Fletcher to apply, it is also essential
that the thing causing the damage must escape to the area outside the
occupation and control of the defendant. The case of Read v. Lyons and
Co, is an example of no escape and hence no liability. In this case, the
plaintiff was an employee in the defendant's ammunition factory, while she
was performing her duties inside the defendant's remises, a shell, which was
being manufactured there, exploded and she was injured. There was no
evidence of negligence on the part of defendant. It was held that the
defendant was not liable because there was no escape of thing outside the
defendant's premises. So, the rule of Rylands v. Fletcher did not apply to
- Non-natural Use of Land
There should be non-natural usage of land to make the defendant liable. Like
in Rylands v. Fletcher case, collecting large body of water is considered to
be non-natural use of land.
In Sochacki v. Sas, it has been held that having a fire place is
natural use of land. Even if there is escape of fire from the fire place and
the plaintiff suffers harm, the defendants were not held liable as there was
no non-natural use of land.
Exceptions to the Rule of Strict LiabilityThe following exceptions to the rule have been recognised by Rylands v.
Fletcher and some later cases:
- Act of God
Act of God (vis major) was also considered to be a defence against the
action of strict liability. If the escape has been unforeseen and takes
place because of super natural forces without any human intervention, the
defence of act of God can be pleaded.
In the case of Nichols v. Marsland, the defendant created artificial lakes
on his land by damming up a natural stream. That year, there was
extraordinarily heavy rainfall by which embankment constructed for lake gave
way. The rush of water washed away plaintiff's four bridges. The plaintiff
brought an action to recover damage for the same. It was found out that
there was no negligence from defendant's side. The accident was considered
an act of God and the defendant was not held liable.
- Consent of the Plaintiff
When the plaintiff has consented to the accumulation of the dangerous thing
on the defendant's land, the liability under the rule does not arise. Such
consent is implied where the source of danger is for the 'common benefit' of
both the plaintiff and the defendant.
In Carstairs v. Taylor case, the plaintiff hired ground floor of a
building from the defendant. The upper floor was occupied by defendant.
Water stored on the upper floor leaked without any negligence on the part of
the defendant. The water destroyed the plaintiff's goods on the ground
floor. As the water had been stored for the benefit of both, the plaintiff
and the defendant, the defendant was not held liable.
- Act of Third Party
If the harm has been caused due to act of a stranger, who is neither the
defendant's servant nor the defendant has any control over him, the
defendant will not be liable under this rule. Thus, in Box v. Jubb, the
overflow from the defendant's reservoir was caused by the blocking of a
drain by strangers, the defendant was not held liable for that.
- Statutory Authority
An act done under the authority of State is a defence to an action for tort.
The defence is also available when the action is under the rule in Rylands
v. Fletcher. Statutory authority however cannot be pleaded as a defence when
there is negligence.
In Green v. Chelsea Waterworks Co., the defendant company had a
statutory duty to maintain continuous supply of water. A main belonging to
the company burst without any negligence on its part, as a consequence of
which the plaintiff's premises were flooded with water. It was held that the
company was not liable as the company was engaged in performing a statutory
- Plaintiff's Own Default
Damage caused by escape due to the plaintiff's own default was considered to
be a good defence in Rylands v. Fletcher itself. If the plaintiff suffers
damage by his own intrusion into the defendant's property, he cannot
complain for the damage so caused.
In Ponting v. Noakes
, the plaintiff's horse intruded into the defendant's
land and died after having nibbled the leaves of a poisonous tree there. The
defendant was not held liable because damage would not have occurred, but due to
the horse's own intrusion to the defendant's land, damage occurred.
When the damage to the plaintiff's property is not caused much by the 'escape'
of the things collected by the defendant but by the unusual sensitiveness of the
plaintiff's property itself, the plaintiff cannot recover anything.
In Eastern and South African Telegraph Co. Ltd. v. Capetown Tramways Co
the plaintiff's submarine cable transmissions were disturbed by escape of
electric current from the defendant's tramways. It was found that the damage was
due to the unusual sensitiveness of the plaintiff's apparatus and such damage
won't occur to a person carrying on ordinary business, therefore, the defendant
was not held liable for the escape.
The rule of absolute liability, in simple words, can be defined as the rule of
strict liability minus the exception. In India, the rule of absolute liability
evolved in the case of MC Mehta v. Union of India.
The facts of the case are that some oleum gas leaked in a particular area in
Delhi from industry. Due to the leakage, many people were affected. The Apex
Court then evolved the rule of absolute liability on the rule of strict
liability and stated that the defendant would be liable for the damage caused
without considering the exceptions to the strict liability rule.
Bhopal Gas Tragedy
This rule was upheld in the infamous Bhopal Gas Tragedy which took place between
the night of 2nd and 3rd December, 1984. Leakage of 'Methyl Isocyanate'
poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a
major disaster. Over three thousand people lost their lives. There was heavy
loss to property, flora and fauna. A case was filed in the American New York
District Court as the Union Carbide Company in Bhopal was a branch of the US
based Union Carbide Company. The case was dismissed owing to no jurisdiction.
The Government of India enacted the Bhopal Gas Disaster Act, 1985 and sued the
company for damages on behalf of the victims. The court applying the principle
of Absolute Liability
held the company liable and ordered it to pay
compensation to victims.
The rule of vicarious liability imposes liability on one person for the act done
by another person. Normally, a person who has done the wrongful act should alone
be made liable for the injurious consequences arising out of it, but the
principle of vicarious liability is an exception to it. In order to held a
person liable for the act done by another person, it is necessary that there
should be a certain kind of relationship between the two persons and the
wrongful act done should be, in a certain way, connected with that relationship.
The common examples of such relations include principal-agent relationship,
master-servant relationship and partners.
Principal-Agent Relationship Where an act is authorized by the principal and done by the agent, both of
them are liable. The authority to do the act may be express or implied. When
an agent does a wrongful act in the ordinary course of the performance of
his duties as an agent, the principal shall be held liable for such an act.
However, there is no doubt, that the agent is also liable for his act. Thus,
their liability is joint and several.
In Lloyd v. Grace, Smith and Co. (1912), Mrs Lloyd, who owned two
cottages but was not satisfied with the returns, there from, approached the
office of Grace, Smith and Co., a firm of solicitors to consult them about
the matter of her property. The managing clerk of the company attended her
and advised her to sell the two cottages and invest the money in a better
way. She was asked to sign two documents which were supposed to be sale
deeds. In fact, the documents that got signed were gift deeds in the name of
the managing clerk himself. He then disposed of the property and
misappropriated the proceeds.
He had acted solely for his personal benefit and without the knowledge of
his principal. It was held that since the agent was acting in the course of
his employment, apparently and ostensibly, the principal was held liable for
the fraud. In State Bank of India v. Shyama Devi, the woman's (plaintiff)
husband gave some amount and cheques to his friend, who was an employee in
the defendant bank, to deposit into the plaintiff's account. No receipt was
obtained and the bank employee misappropriated the amount. It was held by
the Supreme Court that the employee, when he committed the fraud was not
acting in the scope of bank's employment but in his private capacity as the
depositor's friend, therefore the defendant bank could not be held liable
for the same.
Partners The relationship between partners is that of principal and agent. Therefore,
the rules of the law of agency apply in case of their liability also. For
the tort committed by any partner in the ordinary course of the business of
the firm, the other entire partners are liable to the same extent, as the
guilty partner. The liability of each partner is joint and several.
In Hamlyn v. Houston and Company, one of the two partners of the defendant's
firm, acting within the general scope of his authority as a partner, bribed
the plaintiff's clerk and induced him to make a breach of contract with his
employer (plaintiff) by divulging secrets relating to his employer's
business. It was held that both the partners of the firm were liable for
this wrongful act (including breach of contract) committed by only one of
Master and Servant Relationship If a servant does a wrongful act in the course of his employment, the master
is liable for it. Though, the servant is also liable. The wrongful act of
the servant is deemed to be the act of the master as well. The doctrine of
liability of the master for act of his servant is passed on the maxim respondeat
superior, which means 'let the principal be liable' and it puts the master
in the same position as if he had done the act himself.
It also derives validity from the maxim qui facit per alium facit per se,
which means 'he who does an act through another is deemed in law to do it
There are two essentials which should be satisfied by a plaintiff before he
can succeed against the defendant, fixing vicarious liability on him for any
wrongful act done by the latter's servant, which are as follows:
- He must establish that the relation of master and servant subsisted
between the defendant and actual wrong doer.
- He must also prove that the wrongful act was done by the servant whilst
he was engaged in the course of employment of the defendant.
Difference between Servant and an Independent Contractor
A servant is an agent who is subject to the control and supervision of his
employer regarding the manner in which the work is to be done, where as an
independent contractor is not subject to any such control. He is his own master
and exercises his own discretion.
An independent contractor is one “who undertakes to produce a given result, but
in the actual execution of that work, he is not under the order or control of
the person for whom he does it, and may use his own discretion in things not
For example, my car driver is my servant. If he negligently knocks down X, I
will be liable for that. But if I hire a taxi for going to the airport and the
taxi driver negligently hits X, I will not be liable towards X, but the taxi
driver alone will be liable for that because the driver is not my servant but
only an independent contractor.
As a general rule, the master is liable for the torts committed by his servant,
but an employer is not liable for the torts committed by an independent
contractor employed by him.
In Morgen v. Incorporated Central Council,
the plaintiff, while he was on a
lawful visit to the defendant's premises, fell down from an open lift shaft and
got injured. The defendants had entrusted the job of keeping the lift safe and
in proper order to certain independent contractors. It was held that, for this
act of negligence on the part of the independent contractors in not keeping the
lift in safe condition, the defendants could not be held liable.
The general rule that an employer is not liable for the acts of an independent
contractor is subject to some exceptions. In the following exceptional cases, an
employer can be made liable for the wrongs of the independent contractor:
- Where the contractor is employed to do an illegal act. In such cases,
the employer is undoubtedly liable on the principle of vicarious liability.
- Contractor negligently employed by employer for the discharge of duties
which he is bound to do himself properly.
- An employer is liable for the act of an independent contractor in cases
of strict liability.
- The liability of the employer also arises for the dangers caused on or
near the highway. In Tarry v. Ashton, the plaintiff was injured by the fall
of a lamp overhanging the footway adjoining the defendant's house. The lamp
was attached to the defendant's house through some independent contractors.
It was held that it was the defendant's duty to see that the lamp was
reasonably safe there and he could not escape from his liability by getting
the job done through independent contractors.
Liability of Vehicle Owners
The liability pertains to the cases of accident caused by mechanics, repairers
or owners of workshops during the test drive of the vehicles entrusted to them
by the owners of the vehicles for repairs.
In B Govindarajulu v. MLA Govindaraja Mudaliar
, a motor lorry was entrusted by
its owner for repair. While an employee of the workshop was driving it the lorry
met with an accident. It was held by the Madras High Court that the lorry owner
was not vicariously liable because the owner of the workshop was an independent
contractor and not a servant of the owner.
Vicarious (Tortious) Liability of State
Liability of the State for the tortious acts of its servant is known as tortious
liability of State. The liability of State for the torts committed by its
servants is based on following three principles:
- Respondent superior i.e. let the principal be held liable.
- Qui facit per alium facit per se i.e. he who acts through another does the
- Socialisation of compensation.
The Constitution of a country seeks to establish it's fundamental or basic
organs of government, administration and endeavours to define and describe the
structure, composition, powers and principal functions, their interrelationship
and attempts to regulate States relationship with the public. As such, the
Constitution of India contains certain provisions relating to tortious liability
of the State.
Position of Vicarious Liability of State in India
English law, i.e. Crown Proceedings Act, 1947, in which King is liable
for a tort committed by its servant just like a private individual, there is no
statutory provision regarding the liability of the State in India. However,
Article 300 of the Constitution provides for the liability of State.
position of State liability as stated in Article 300 of the Constitution of
India is as under:
The Government of India may sue and be sued by the name of Union of India and
the Government of a State may sue or be sued by the name of the State and may,
subject to any provision which may be made by Act of Parliament or of the
legislature of such State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective affairs in the like
cases as the dominion of India and the corresponding provinces or the
corresponding Indian States might have sued or been sued if this Constitution
had not been enacted. [Clause 1]
If at the commencement of this Constitution:
- any legal proceedings are pending to which dominion of India is a party,
the Union of India shall be deemed to be substituted for the dominion in
those proceedings, and
- any legal proceedings are pending to which a province or an Indian State
is a party, the corresponding State shall be deemed to be substituted for
the province or the Indian State in those proceedings. [Clause 2]
In Vidyawati v. Lokumal
, the plaintiff's husband died after being knocked down
by a government car which was being driven rashly and negligently by an employee
of the State of Rajasthan. At the time of the accident, the car was being taken
from the workshop to the collector's bungalow for the collector's use.
In an action against the State of Rajasthan, the State was held liable. The
Rajasthan High Court did not find any reason for treating the State differently
from the ordinary employer and held that the State of Rajasthan was liable for
the wrong of the driver.
In Peninsular and Oriental Steam Navigation Company v. Secretary of State for
, the plaintiff's servant was travelling in a horse driven carriage and was
passing by the Kidderpore Dockyard in Kolkata, which is the government property.
Due to negligence on the part of the defendant's servants, a heavy piece of
iron, which they were carrying for the repair of a steamer, fell and its clang
frightened the horse. The horse rushed forward against the iron and was injured.
The plaintiff filed a suit against the Secretary of State for India in council
for the damage which was caused due to the negligence of the servants employed
by the Government of India.
The Court tried to look to the liability of the East India Company. A
distinction was drawn between the sovereign and non-sovereign functions of the
East India Company. It was held that if the act was done in the exercise of
sovereign functions, the East India Company would not have been liable, but if
the function was a non-sovereign one, i.e, which could have been performed by a
private individual without any delegation of power by the Government, the
company would have been liable. Maintenance of the dockyard was considered to be
a non-sovereign function and, as such, the Government was held liable.
Obligations Imposed by Law in Exercise of Sovereign Functions
Tort committed while performing duty in discharge of obligations imposed by law
has been considered to be a defence in India. There is an exemption for the
State from liability to pay damages for the tortious act of the servant, where a
government servant is carrying out duties imposed by the law and not the
In Ram Ghullam v. Government of UP
, the police authorities had recovered some
stolen property and deposited the same in the Malkhana. The property was again
stolen from the Malkhana. In a suit by the owner of the property against the
State of UP, it was held that the government was not liable as its servant was
performing duty in discharge of obligation imposed on him by law.
These obligations can be more clearly understood with the help of following
Acts of Police OfficialsIn State of Assam v. Md. Nizamuddin Ahmed, the plaintiff was carrying on
business in sale of seeds of different agricultural products. The business was
being carried out without a licence which was needed for such business. The
police authorities seized the seeds from plaintiff's shop. The seeds got damaged
because of lack of storage facilities and the negligence while they were in
police custody. The plaintiff claimed compensation for the same. It was held
that seizure of the seeds was in exercise of sovereign power and the plaintiff
was, therefore not entitled to claim any damages for the same.
Negligence of Military ServantsAlthough, the maintenance of the army is a sovereign function but this does not
necessarily means that the State will be immune from liability for any tortious
acts committed by the army personnel. Here also, a distinction has to be drawn
between acts which could be done by the government in the exercise of sovereign
power and acts which could have been done by a private individual.
In Smt Meinam Ongbi Bina Devi v. State of Manipur, rape was committed by an
employee of the Union of India. Though, the accused employee had not been on
duty but on unauthorized leave, holding the Central Government vicariously
liable for the offence of rape committed by the accused, an employee of the
Assam Rifles, the Manipur High Court said that the accused was on duty in the
State for maintenance of law and order and said accused abused his position as
an armed personnel of Assam Rifles.
Acts Done in Exercise of Sovereign PowerIn Union of India v. Harbans Singh, meals were being carried from the
cantonment, Delhi for being distributed to military personnel on duty. The truck
carrying the meals belonged to the military department and was driven by
military driver. It caused an accident resulting in the death of a person. It
was held that the act was being done in exercise of sovereign power and
therefore, the State cannot be held liable for the same.
Acts Done in Exercise of Non-sovereign PowerIn Union of India v. Savita Sharma, the Jammu and Kashmir High Court held that
the driving of a military truck to Railway Station to bring the jawans to Unit
Headquarters is a non-sovereign function and therefore, if the respondent gets
injured while the truck is being driven, she is entitled to compensation.