The theory of strict liability for hazardous activities can be said to have originated from the historic judgment of Blackburn, J. of the British High Court in Rylands v. Fletcher 1866 LRI Ex 265.

Before this decision the accepted legal position in England was that fault, whether by an intentional act or negligence, was the basis of all liability (see Salmond on ‘Tort’, 6th Edn p.12) and this principle was in consonance with the then prevailing Laissez Faire Theory.

With the advance of industrialization the Laissez Faire Theory was gradually replaced by the theory of the Welfare State, and in legal parlance there was a corresponding shift from positivism to sociological jurisprudence.

It was realized that there are certain activities in industrial society which though lawful are so fraught with possibility of harm to others that the law has to treat them as allowable only on the term of insuring the public against injury irrespective of who was at fault. The principle of strict liability (also called no fault liability) was thus evolved, which was an exception to the general principle in the law of torts that there is no liability without fault, (vide American Jurisprudence, 2nd Edn Vol 74 p. 632). As stated above, the origin of this concept of liability without fault can be traced back to Blackburn, J’s historic decision in Rylands vs. Fletcher.

The facts in that case were that the defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn J. held the mill owner to be liable, on the principle that “The person who for his own purposes 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”. On appeal this principle of liability without fault was affirmed by the House of Lords (per Cairns, J.) but restricted to non-natural users vide (1868) LR 3 HL 330.

Rylands vs. Fletcher in fact created a new legal principle (the principle of strict liability in the case of hazardous activities), though professing to be based on analogies drawn from existing law. The judgment is noteworthy because it is an outstanding example of a creative generalization. As Wigmore writes, this epoch making judgment owes much of its strength to ‘the broad scope of the principle announced, the strength of conviction of its expounder, and the clarity of his exposition’.

Strict liability focuses on the nature of the defendants’ activity rather than, as in negligence, the way in which it is carried on (vide ‘Torts by Michael Jones, 4th Edn. p. 247). There are many activities which are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says “permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads” (see Fleming on ‘Torts’ 6th Edn p. 302).

Thus in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault.

The basis of the doctrine of strict liability is two fold (i) The people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate and (ii) it operates as a loss distribution mechanism, the person who does such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products (vide ‘Torts’ by Michael Jones 4th Edn p. 267).

As pointed out by Clerk and Lindsell (see ‘Torts’, 14th Edn) “The fault principle has shortcomings. The very idea suggests that compensation is a form of punishment for wrong doing, which not only has the tendency to make tort overlap with criminal law, but also and more regrettably, implies that a wrongdoer should only be answerable to the extent of his fault. This is unjust when a wholly innocent victim sustains catastrophic harm through some trivial fault, and is left virtually without compensation”.

Many jurists applaud liability without fault as a method for imposing losses on superior risk bearers. Their argument is that one who should know that his activity, even though carefully prosecuted, may harm others, and should treat this harm as a cost of his activity. This cost item will influence pricing, and will be passed on to consumers spread so widely that no one will be seriously effected (vide Article by Prof. Clarence Morris entitled ‘Hazardous Enterprises and Risk Bearing Capacity’ published in Yale Law Journal, 1952 p. 1172).

The rule in Rylands vs. Fletcher was subsequently interpreted to cover a variety of things likely to do mischief on escape, irrespective of whether they were dangerous per se e.g. water, electricity, explosions, oil, noxious fumes, colliery spoil, poisonous vegetation, a flagpole, etc (see ‘Winfield and Jolowicz on ‘Tort”, 13th Edn p 425) vide National Telephone Co. vs. Baker (1893) 2 Ch 186, Eastern and South African Telegraph Co. Ltd. vs. Cape Town Tramways Co. Ltd. (1902) AC 381, Hillier vs. Air Ministry (1962) CLY 2084, etc. In America the rule was adapted and expressed in the following words ” one who carried on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm” (vide Restatement of the Law of Torts, vol 3, p. 41).

Rylands vs. Fletcher gave English Law one of its most creative generalizations which, for a long time, looked destined to have a successful future. Yet, after a welcome start given to it by Victorian Judges the rule was progressively emasculated, until subsequently it almost became obsolete in England. According to Dias and Markesins (see ‘Tort Law’ 2nd Edn p. 355) one reason for this may well be that as a generalization justifying a shift from fault to strict liability it may have come prematurely. The 19th Century had not yet fully got over laissez faire, and it was only in the 20th Century that the concepts of social justice and social security, as integral parts of the general theory of the Welfare State, were firmly established.

The rule of strict liability laid down by Blackburn J. in Rylands vs. Fletcher was restricted in appeal by Lord Cairns to non-natural users, the word ‘natural’ meaning ‘that which exists in or by nature, and is not artificial’, and that was the sense in which it was used by Lord Cairns. However, later it acquired an entirely different meaning i.e. that which is ordinary and usual, even though it may be artificial’ vide Rickards vs. Lothian (1913) AC 263 followed in Read vs. Lyons (1947) AC 156. Thus the expression ‘non-natural’ was later interpreted to mean ‘abnormal’, and since in an industrial society industries can certainly not be called ‘abnormal’ the rule in Rylands vs. Fletcher was totally emasculated in these subsequent rulings. Such an interpretation, as Prof. Newark writes, ‘would have surprised Lord Cairns and astounded Blackburn, J’ (see article entitled ‘Non-natural User and Rylands vs. Fletcher,’ published in Modern Law Review, 1961 vol 24, p 557).

In Read vs. Lyons (1947) AC 156) which was a case of injury due to a shell explosion in an ammunitions factory, Lord Macmillan while rejecting the claim of the plaintiff made further restrictions to the rule in Rylands vs. Fletcher by holding that the rule “derives from a conception of mutual duties of neighbouring landowners”, and was therefore inapplicable to personal injuries. He also held that to make the defendant liable there should be escape from a place under the defendant’s control and occupation to a place outside his occupation, and since the plaintiff was within the premises at the time of the accident the injury was not due to escape therefrom. In this way Read vs. Lyons destroyed the very spirit of the decision in Rylands vs. Fletcher by restricting its principle to the facts of that particular case, instead of seeing its underlying juristic philosophy.

Apart from the above, some other exceptions carved out to the rule in Rylands vs. Fletcher are (a) consent of the plaintiff; (b) common benefit; (c) Act of stranger; (d) Act of God; (e) Statutory authority; (f) default of plaintiff etc.

In Dunne vs. North Western Gas Boards (1964) 2 QB 806 Sellers L.J. asserted that the defendant’s liability in Rylands vs. Fletcher (1868) LR 3 HC 330 “could simply have been placed on the defendants’ failure of duty to take reasonable care”, and it seems a logical inference from this that the Court of Appeals considered the rule to have no useful function in modern times. As Winfield remarks, the rule in Rylands vs. Fletcher, by reason of its many limitations and exceptions, today seldom forms the basis of a successful claim in the Courts (see Winfield and Jolowicz on Tort, 13th Edn p. 442), and it seems that the rule “has hardly been taken seriously by modern English Courts”, vide Att. Gen. vs. Geothermal Produce (N.Z.) Ltd., (1987) 2 NZ1R 348.

As Winfield remarks, because of the various limitations and exceptions to the rule “we have virtually reached the position where a defendant will not be considered liable when he would not be liable according to the ordinary principles of negligence” (see Winfield on Tort, 13th Edn p. 443).

This repudiation of the principle in Rylands vs. Fletcher is contrary to the modern judicial philosophy of social justice. The injustice may clearly be illustrated by the case of Pearson vs. North Western Gas Board (1968) 2 All ER 669. In that case the plaintiff was seriously injured and her husband was killed by an explosion of gas, which also destroyed their home. Her action in Court failed, in view of the decision in Dunne vs. North Western Gas Board (1964) 2 QB 806. Thus the decline of the rule in Rylands vs. Fletcher left the individual injured by the activities of industrial society virtually without adequate protection.

However, we are now witnessing a swing once again in favour of the principle of strict liability. The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the crude oil spill in 1988 on to the Alaska coast line from the oil tanker Exxon Valdez, and other similar incidents have shocked the conscience of people all over the world and have aroused thinkers to the dangers in industrial and other activities, in modern society.

In England, the Pearson Committee recommended the introduction of strict liability in a number of circumstances (though none of these recommendations have so far been implemented, with the exception of that related to defective products).

In India the landmark Constitution Bench decision of the Supreme Court in M.C. Mehta vs. Union of India AIR 1987 SC 1086 has gone much further than Rylands vs. Fletcher in imposing strict liability. The Court observed “if the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads”. The Court also observed that this strict liability is not subject to any of the exceptions to the rule in Rylands vs. Fletcher.

The decision in M.C. Mehta’s case related to a concern working for private profit. However, in our opinion the same principle will also apply to statutory authorities (like the railways), public corporations or local bodies which may be social utility undertakings not working for private profit.

It is true that attempts to apply the principle of Rylands vs. Fletcher against public bodies have not on the whole succeeded vide Administrative Law by P.P. Craig, 2nd Edn. p. 446, mainly because of the idea that a body which acts not for its own profit but for the benefit of the community should not be liable. However, in our opinion, this idea is based on a misconception. Strict liability has no element of moral censure. It is because such public bodies benefit the community that it is unfair to leave the result of a non-negligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally.

In America the U.S. Supreme Court in Lairds vs. Nelms (1972) 406 US 797, following its earlier decision in Dalehite vs. U.S. (1953) 346 US 15, held that the U.S. was not liable for damages from supersonic booms caused by military planes as no negligence was shown. Schwartz regards this decision as unfortunate (see Schwartz ‘ Administrative Law’, 1984). However, as regards private enterprises the American Courts award huge damages (often running into millions of dollars) for accidents due to hazardous activities or substances.

In France, the liability of the State is without fault, and the principle of strict liability applies (see C.J. Hanson “Government Liability in Tort in the English and French Legal Systems”)

In India, Article 38(1) of the Constitution states “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”.

Thus, it is the duty of the State under our Constitution to function as a Welfare State, and look after the welfare of all its citizens.

In various social welfare statutes the principle of strict liability has been provided to give insurance to people against death and injuries, irrespective of fault.

Thus, Section 3 of the Workmen’s Compensation Act 1923 provides for compensation for injuries arising out of and in the course of employment, and this compensation is not for negligence on the part of the employer but is a sort of insurance to workmen against certain risks of accidents.

Similarly, Section 124A of the Railways Act 1989, Sections 140 and 163A of the Motor Vehicles Act, 1988, the Public Liability Insurance Act, 1991 etc. incorporate the principle of strict liability.

However, apart from the principle of strict liability in Section 124A of the Railways Act and other statutes, we can and should develop the law of strict liability de hors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta’s case. In our opinion, we have to develop new principles for fixing liability.