Liability based on Fault and Strict liability


Author: Akanksh, NLIU Bhopal

What is the liability?

We may all have heard that “Law is sovereign”. All the subjects of a country are protected by the state to govern them under the law and in return give them protection to life, liberty, and property. In all democratic countries, it is the rule of law and the rule of man.

The concept of liability has arisen in the late seventeenth century.  This is due to the fact of industrialization and also the mass consumerism. To protect individuals from the risks that take place in industries and time, the concept of liability arose.

When legal rights are getting violated without causing any damage or loss, the liability would arise. Injury without loss which later developed as ‘Injuria sine damnum.’ This occurs even without violation of any legal rights when the damages are caused as damages without injury which was later developed into a principle as (damnum sine injuria).

Injuria sine Damnum

This maxim means ‘Injury without damage’. it was established from the case, Ashby v. White. This is the case where the plaintiff was a qualified voter at the session of parliament. the defendant was a returning officer. The defendant refused the plaintiff to vote. The plaintiff here did not suffer loss. The candidate who he wanted to vote, won the election. His legal right was violated. The court held that the defendant hereby liable to pay the compensation to the plaintiff as his legal right to vote was violated. The defendant here committed the tort.

Damnum Sine Injuria

It is a maxim, which refers to an injury that is being victimized by the plaintiff. There is no violation of any legal right of a person which means there is no violation of any legal right but the injury, or damage is being suffered by the plaintiff, the plaintiff here cannot sue for the same, as it is not actionable in law.  There is some infringement of a legal right that should be present to sue.

Strict liability

Some activities may be so dangerous that the law has to regulate them with extreme consequences. For example, the law may sometimes levy a penalty even if damage occurs without somebody’s fault. This is exactly what happens under the rule of strict liability.  Strict Liability offences are offences under Common law, torts ad even criminal law. The basic idea would be the same but the difference occurs due to the facts and circumstances.

The concept of Strict liability developed from the case “Rylands v. Fletcher”, Facts describe that the defendants who employed independent contractors to construct a reservoir used mines when digging but had failed to properly seal them.  Subsequently, The water flooded throughout the plaintiff’s mines since it is adjoining property. The court held that any person who allows a dangerous element on their land to escape and cause damage to a neighbour will be liable.

Examples of Strict Liability include The cases of trespassing animals most likely domestic dangerous animals or Wild animals. It is also used when the perpetrator carries dangerous items likely explosive substances or is involved in high energy activities. Most of the legislation today is based on strict liability principles to protect the interest of justice and the Public. The other examples include Driving without a seatbelt; Careless driving; Driving while suspended; Failure to remain etc.

Strict Liability as a Tort.

Strict Liability as a tort includes cases like negligence, contributory negligence. It covers the cases where the perpetrator causes the harm which was sufficiently careful and not intentional. Could be made liable under this rule.

Strict Liability under Criminal Law

The basic elements which are to be proved in a criminal offence are Actus Reus and Mens rea. It would be next to impossible if the prosecution needs to prove Mens-rea in certain cases. To get a fair trial and adequate justice, the legislation has introduced strict liability principles in criminal law.

Examples include offences related to terrorist activities or carrying dangerous weapons. The strict liability offences in today’s world are commonly motor-vehicle offences. The punishments given under the motor-vehicle act are mostly based on strict liability principle and Mens-rea wouldn’t be required in those cases.

Concept of fault liability.

Strict liability offences are ‘No liability offences’. it would not be necessary to hold Mens-rea in those cases. The liability which has arisen due to the nature of the act committed is with sufficient Mens-rea and to be precise Intention. Such acts come under the Purview of Fault Liability. Fault Liability cases are dealt with to produce adequate justice.

Fault liability is an exception to Strict Liability under two circumstances.

  1. The fault of the Plaintiff

If the intrusion into the defendant’s premises occurred due to the fault of the Plaintiff, then he has no right to claim a benefit from strict liability.

For example, Seeta entered the premises of a field to trespass. During the passage, she is injured due to an act of defendant on the field. Here, Filed management can be the exception to avoid liability.

  • Consent of Claimant  or “Volenti Non-Fit injuria”

There are instances where a plaintiff has consented to the act with free content which is wrongful. It can be either implied or expressed and should occur with no fraud or coercion. In this case, he loses the right to sue the defendant. The situation where the plaintiff either explicitly or implicitly volunteered himself to the direct exposure of the danger. The defendant wouldn’t be liable.

For Example, Kajal buys tickets to watch a football match. During the game, The ball came to her and hit her on the nose. Here, the player is not held liable as kajal consented to the harm by buying the ticket.

Other Defences

  1. Act of God

The Act of God is an event that cannot be controlled by human agency. Natural reasons are the cause of the act. They cannot be prevented even with proper caution or foresight. The acts which occur as an unforeseeable event and which does not give the right for the plaintiff to claim or complain about the damages.

For Example- Ram and Lakshman are neighbours who live near the ocean. Lakshman grows poisonous berries in her garden. Due to high wind, berries started falling into Ram’s land and were consumed by her cat which died thereafter. Lakshman is not liable as he would fall under this exception.

  • Act of the Third Party

The Strict Liability principle would not apply if the damage caused is due to the third part’s effect.  The third-party should not be a servant or an agent of the defendant. The best example of this case is the Bhopal gas tragedy incident of 1984.

  • Common Benefit

The Strict Liability principle would not be applied as a source of danger to establish for the common benefit of the defendant or the plaintiff.  It is usually used in the cases of Business parks or Industrial estate.

  • Statutory Authority

Strict liability principles would not be applied if the parliament has passed special legislation to deal with the act.

In the case of Green v Chesla waterworks co,  where the parliament authorized the main burst without any negligence from the company. Subsequently, the plaintiff’s premises were deeply flooded, the company was held not liable. Here the Chesla works are authorized to do by a statutory duty and are not in negligence.

  • Judicial/ Quasi-Judicial or Executive act

The strict liability principle would not be applied if there has been special legislation protecting the act. This has already been discussed above. The same applies in the case of Judicial/ Quasi-Judicial or Executive act. Not only Legislation but also any order, direction, decree, judgment, etc which protects the act of the defendant. The defendant can claim the same as the defense for his strict liability.

  • Necessity

It is already known that ‘The Necessity knows no law’. The defendant can cause lesser harm in order to avoid greater harm or loss and such an act is justified as Private Defence. In Private Defence, The defendant’s act may not be a legal act but it is only done to avoid more dangerous harm. In such circumstances, the defendant can claim this defence.

The essentials required to claim ‘Private Defence’ as a defence are 1. The defendant needs to do the act to avoid greater harm and 2. Such acts by the defendant should be justified.

  • Mistake

A defendant who acts under a mistaken belief in some or the other situation, he may always plead the defence of ‘mistake’. This mistake as a defence can be of two types. Firstly, The mistake of law where there is no defence in either criminal or civil cases. The other one is The mistake of fact which does not come in the purview of torts.

For example, In the case of Morrison v. Ritchie & Co where the defendant by mistake has published a statement that the plaintiff in good faith had given birth to twins. The truth was that the plaintiff got married just two months before. The court held that the defendant was liable for the offence of ‘defamation’ irrespective of his good faith.

  • Inevitable Accident

Accident means any unexpected injury and it is something that could not be stopped or avoided with all due care and precaution from the side of the defendant. Therefore it is called an inevitable accident. It acts as a good defence for the defendant that the injury could not be stopped after taking all the necessary precautions and the defendant has no intention.

For Example, It was held in the case of Stanley v. Powell, where the plaintiff and the defendant went to a peasant shooting. The defendant who fired at a pheasant, subsequently, the bullet after hitting an oak tree reflected and hit the plaintiff who suffered serious injuries. This is a clear example of an inevitable accident and the defendant here was not held liable.

  • Natural Use of the land

The rule of strict liability does not apply in the case where the things are present in a person’s land in natural form or arises in the land even though they are dangerous, but this applies most in things artificially brought in the land.

In the case of Neath Rural District Council v. Williams whereas in this case it was held that there is no liability for things which arises naturally the court said that, “the occupier is under no obligation to prevent the escape of such thing for the common law of England has never imposed liabilities upon landowners for anything which happen to their land in the natural course of affairs if the land is used naturally”.

Limitations of Strict Liability

Disadvantages for Companies

Strict liability acts as a  product liability by holding the selling company liable for defective products. Strict liability is a liability without fault. It means that the seller of the product is responsible for damages though the damage wasn’t the fault of the company. Strict liability applies to businesses officials only who are engaged in either selling or leasing their products;

Disadvantages for Consumers

The situations where the purchaser or the user is unable to sue for strict liability. There might be instances where Strict Liability as a tort is a crime are dealt with as ‘General Dangers’. This might also depend on the inherent danger of a product. Companies cannot be made liable for failing to warn consumers regarding the dangers. Companies wouldn’t also be made liable in situations where the consumer has modified or misused the product in such a way to cause an injury.

The Concept of Absolute Liability

A liability that is imposed upon certain conduct regardless of is negligent or liability without fault is Absolute Liability. This is when there is no excuse. Persons who are engaged in hazardous activities and harm occurs subsequently, This person would be held liable for Absolute Liability.

Strict Liability offences carry exceptions. If the person charged for an act irrespective of this exception, then it would be under absolute liability. These exceptions which cover the concept of strict liability does not hold tortfeasor responsible for the act which would be done by the victim in situations like act done with the consent of the victim, act done under the statutory authority, any act of any third party and act of God. 

So It would be expressed Mathematically as “Strict Liability – (The Exceptions) = Absolute Liability”

The Absolute Liability concept developed in India through the judicial pronouncement of ‘MC Mehta V. Union of India’ where Justice Bhagwati stated that with the developing industrial sector, The strict liability rule as per “Rylands v. Fletcher” cannot be taken into consideration without changing it. This was further applied in many cases and even the Bhopal Gas Leak Case was based on this judgment.

Examples of Absolute Liability are Speeding; Failure to stop at a stop sign; Failure to stop at a red light etc.


The concept of “Absolute liability” is a much stronger tool than “Strict liability”. Absolute Liability holds the person or any corporation liable not only for the acts done by any third party but also acts that would affect the public at large. The principle also helps in compensating for the loss which causes a ‘no-fault situation’ without any exception. The gradual shift from “Strict liability” to “Absolute liability” must be taken into consideration. This is due to the fact of industrial developments which would increase the public damage so, it developed as a necessity to ensure the Public-safety. This led to obliging the duty of care on the industries and the corporates. It also increases the liability by making Strict to absolute in nature. The cases like MC Mehta v. UOI or Bhopal Gas Leak paved a  way which leads to developing environmental jurisprudence and to the evolution of Absolute Liability in Indian Jurisprudence.


  1. Carstairs v Taylor
  2. Ashby v. White (1703) 92 ER 126
  3. peters v prince of whale theatre
  4. Gloucester Grammar School Case (1410) Y B 11 Hen IV 27.
  5. Rylands v. Fletcher
  6. Charing Cross electricity co v hydraulic power
  7. Morrison v. Ritchie & Co
  8.  Stanley v. Powell
  9. Neath Rural District Council v. Williams, [1951] 1  KB 115.