Torts Assignment 1

STRICT LIABILITY
The rule of Strict Liability originated from the English case of Rylands vs. Fletcher. 1 It was held
in this case that if any subject matter would escape and cause harm, the person bringing the
subject will be liable no matter how cautious he had been and it doesn’t matter if the person had
taken preventive measures to curb the harm.2 Strict liability is different from negligence. In strict
liability cases, there is nothing that needs to be proved on the part of the defendant as because of
an unnatural use or uncommon usage there is an escape of the subject matter that takes place and
the person is held to be strictly liable even though there is no fault on his part. Under strict
liability, there are certain defenses available to the defendant which in absolute liability, it is
devoid of any exceptions. The Oleum gas leak case is formed on the concept of strict liability but
without any exceptions and the individual was to be held absolutely liable for his acts. 3 After the
Bhopal gas leak tragedy case, the concept of Absolute Liability was brought by Justice PN
Bhagwati where the court stated the limitations of strict liability. It was held that new policies
and rules would be needed that could effectively deal with new issues that come in highly
industrialized economy.4
The use of Strict Liability is limited to the uncommon activities. The primary concern exhibited
here is that the interpretation of common activity is vast and that only a handful of activities
would be termed as uncommon. Regardless of the danger that the common activities have at
large, they are protected from being under strict liability. 5 Strict liability is considered to be more
1
John Rylands and Jehu Horrocks vs. Thomas Fletcher, [1868] UKHL 1, (1868) LR 3 HL 330
The facts of the case were that the defendant had a reservoir constructed on his land by independent contractors who
were carefully chosen and were apparently not incompetent. In the course of the work the contractors came across
some old shafts and passages underground on the defendant's land which, in fact, communicated with mines on the
plaintiff's land. However, the shaft and passages appeared to be filled with earth. The contractors took no notice of
them and proceeded to build the reservoir over them. When the reservoir was completed and filled with water, the
water entered the old shafts and passages and burst through into the plaintiff's mines, flooding them. It was
established that the contractors had been negligent in the construction of the reservoir. The Court of Exchequer
Chamber held in a unanimous decision that the defendant was liable in spite of the fact that he had not been
negligent either personally or in choosing the contractors.
2
C. F. Amerasinghe, Rylands v. Fletcher in the Law of Ceylon, The International and Comparative Law Quarterly ,
Oct., 1962, Vol. 11, No. 4 (Oct., 1962), pp. 937-975
3
M.C Mehta vs. Union of India (UOI) and Ors, 1987 SCR (1) 819, AIR 1987 965
4
Union Carbide Corporation vs. Union Of India (1989), 1990 AIR 273, 1989 SCC (2) 540
5
Steven Shavell, The Mistaken Restriction of Strict Liability to Uncommon Activities, Journal of Legal Analysis,
Volume 10, Pages 1–45, 2018
supreme than negligence because of the advantages it gives. Level of care and level of duty are
the two main reasons why strict liability is better than negligence. Under strict liability, injurers
will be cautious to take better and wide variety of care but under the negligence rule, injurers will
be urged to pick just a few kinds of care appropriately – just those sorts of care that are very
much fused into the negligence assurance, not the kinds of care that are ineffectively represented
by the courts or are left unexamined by them. Care signifies the danger reduction activities that
advance wellbeing when a party is occupied with a possibly unsafe action. Parties can practice
care in a variety of ways. 6
“Under strict liability, injurers will naturally be led to choose all
dimensions of care in a socially correct manner (whether to take care, at what level).”7 The
rationale is basically that, for a type of care, injurers will be inspired to contrast its expense with
the decrease in expected damage that the safeguard would produce – for injurers will bear any
mischief that they cause because of their liability for it. In the event that a strictly liable blasting
firm mulls over burning through $1,000 on a safety obstruction and this would prompt a $5,000
reserve funds in anticipated damage, the firm would be instigated to develop the barrier, as is
socially desirable8. “Under the negligence rule, the exercise of care will often be improper––
inadequate or excessive, depending on circumstances”9. The reason is that the court will have to
face enlightening challenges while it is thinking of care in applying the negligence rule. The
knowledge of judiciary about the expenses and advantages of care would be incorrect. This
would lead the court to set a standard for care that could either be low or higher. “Under strict
liability, an injurer will choose the socially desirable level of activity.” 10 The explanation is that,
in concluding whether to expand their degree of activity, a strictly liable party will make the
socially attractive examination between the advantages received and the social expenses,
6
7
8
9
10
including the damage done to other people, for the party will bear the mischief under strict
liability. In contrast, “under the negligence rule, the level of activity will tend to be socially
excessive––because parties who are not negligent do not pay for harms that their activities
nevertheless cause.”11 This fundamental impediment of the negligence rule is basically a result
of what was simply clarified about strict liability.
There is another view which argues why strict liability’s use should be done away with respect to
all imprisonable offences. “An offence should be treated as a crime of strict liability if it provides
for conviction without requiring fault as to atleast one material element” 12. This is because it is
the material element which distinguishes between conviction for the particular offence, no
offence or of a lower degree of offence. The proof of fault is usually expressed as the principle of
mens rea. Two types of arguments are spoken about which is “rule of law” and censure- based
argument.13 The first of these was formed by H.L.A. Hart, who contended that it is inappropriate
to convict and rebuff any individual who had not been given a reasonable chance to practice the
limit with regards to doing what the law requires and swearing off what it forbids. The rule of
mens rea is in this way distinguished as fundamental to decency in the criminal law, requiring
advertence by the defendant to the restricted outcomes or prohibited situations. 14 He argued that
recognizing human respect involves regarding people as people equipped for arranging and
plotting their future. Consequently, recognizing individuals' nobility incorporates regarding their
self-rule, their entitlement to control their future.15 In his expressive theory of punishment, Joel
Feinberg had argued that punishment has a reprobative or critical impact and therefore it was
wrong to punish people for their conduct without any fault and in that it is arbitary and pitiless to
11
12
Andrew Ashworth, Should Strict Criminal liability be Removed From All Imprisonable Offences? Irish Jurist ,
New Series, Vol. 45 (2010), pp. 1-21, 2010
13
New Series, Vol. 45 (2010), pp. 1-21, 2010
14
New Series, Vol. 45 (2010), pp. 1-21, 2010
15
New Series, Vol. 45 (2010), pp. 1-21, 2010
denounce somebody for something they did without their fault. 16
It was further stated that strict
liability is unjustified and untruthful to those wrong doers who have not yet been proved to be
wrong. Strict liability in relation to material element of an offence is incorrect in its fundamental
because Rule of law and censure based arguments have shown the need for the prosecution to
prove mens rea or fault so as to regard the self-governance of people and to force public censure
just where a reasonable and appropriate establishment has been laid.17
According to me strict liability should be restricted to uncommon activities. I feel that it will be
unjust to convict people of serious criminal offences without any fault on their part in relation to
the material elements of the offence. It will deprive a person of their liberty without any proof of
fault. Strict liability imposes liability on those who are not blameworthy and also those who are
unaware of the risks might be guilty. It will be unreasonable and unjust to impose public censure
on any person without any fault. The European convention on human rights had stated that ‘no
one shall be deprived of liberty save as a measure of last resort’. 18 Thus, the contentions like the
essential nature of freedom and its deprivation and the principal injustice of not only conviction
but also additional detainment without any fault combines together to oppose strict liability in
serious offences. The people who are morally innocent could be deprived of their right to liberty.
Why should a person be liable for the acts they didn’t do is a question that comes up often for
offences under strict liability. Most of the principles of strict liability go against the basic ideals
of justice and therefore emphasis should be on establishment of link between fault and right to
liberty. I oppose the view that strict liability should not just be restricted to uncommon activities.
I feel that strict liability should also take into account the mens rea (mental factor) which is a
very important element in determining criminal liability and it should not be done away with. It
is not right at the basic level for the legislature to exclude the fault components from the meaning
of an offense in the desire that all culpability issues can be managed easily at the sentencing
stage. Any changes in law should be towards a negligence based norm and not strict liability.
The purpose behind that would be that any defendant should not be subject to conviction without
16
New Series, Vol. 45 (2010), pp. 1-21, 2010
17
New Series, Vol. 45 (2010), pp. 1-21, 2010
18
New Series, Vol. 45 (2010), pp. 1-21, 2010
the chance of contending absence of fault, and the detainment would be colossally out of line and
unfair in the absence of proof of fault.
BIBLIOGRAPHY:
Andrew Ashworth, Should Strict Criminal liability be removed from All

Imprisonable Offences? Irish Jurist, New Series, Vol. 45 (2010), pp. 1-21, 2010
C. F. Amerasinghe, Rylands v. Fletcher in the Law of Ceylon, the International and

Comparative Law Quarterly, Oct., 1962, Vol. 11, No. 4 (Oct., 1962), pp. 937-975
https://getrevising.co.uk/grids/for_and_against_strict_liability
https://plato.stanford.edu/entries/tort-theories/
https://legal-dictionary.thefreedictionary.com/strict+liability
Steven Shavell, The Mistaken Restriction of Strict Liability to Uncommon

Activities, Journal of Legal Analysis, Volume 10, Pages 1–45, 2018
Usha Ramanathan, Bhopal: As the law develops, Economic and Political Weekly,
Vol. 45, No. 34 (AUGUST 21-27, 2010), pp. 82-87 (6 pages)

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STRICT LIABILITY

Andrew Ashworth, Should Strict Criminal liability be removed from All

C. F. Amerasinghe, Rylands v. Fletcher in the Law of Ceylon, the International and

Steven Shavell, The Mistaken Restriction of Strict Liability to Uncommon

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