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STUDY MATERIAL FOR INTERNAL CIRCULATION

COURSE & SEMESTER: 5 YEAR B.A., LLB. II SEMESTER
SUBJECT: LAW OF TORTS

UNIT-III
Negligence; Nuisance; Absolute and Strict Liability. Legal Remedies- Awards-
Remoteness of Damages.

NEGLIGENCE
Introduction
In day to day life, the word ‘negligence’ means nothing else but carelessness. Under the
legal sense, it highlights the failure to perform the basic of care which the performer as a reasonable
man should perform have in all the situations. In general, there is a legal duty to consider when it
can be foreseen that failure to do so can cause harm. Negligence is a mode in which many types of
injuries may occur by not considering such suitable precautions.
It is already known that the Indian law of torts is based on the English common law.
Thus, the law relating to negligence is adopted and modified by the courts of India on the
principles of justice, equity and good conscience. The term Negligence is derived from the
Latin word negligentia, which means ‘failing to pick up’. In the general sense, the term
negligence means the act of being careless and in the legal sense, it signifies the failure to
exercise a standard of care which the doer as a reasonable man should have exercised in a
particular situation. Negligence in English law emerged as an independent cause of action only
in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision for causing
the death of a person by negligence which was subsequently amended in the year 1870 by
inserting section 304A.

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Evolution of the tort of negligence

The Courts did not recognize the existence of a general duty in tort imposing liability
for careless behaviour until the 1930s. The major landmark in the history and growth of the
negligence is the House of Lords landmark decision in the famous case of Donoghue v.
Stevenson. Prior to this decision, legal liability for carelessness lacked a unifying principle.
The House of Lords held that a manufacturer of ginger beer who had allowed a snail to get into
a bottle, where it had died and decomposed, would be liable to the ultimate consumer who
became ill as a result of drinking the ginger beer. This reversed the trend of the previous
century.
Other restrictive rules of the nineteenth century were similarly reversed: in 1963 was
held that liability might arise from a negligent statement when this was relied on by someone
who consequently suffered loss, and in 1971 it was held that a duty was owed to trespassers to
take reasonable care that they should not be injured. The court took the earlier approach. This
was the result of the courts’ more plaintiff-oriented approach. Thus, the present-day law state
that liability will be imposed on people who were at fault, without giving any greater definition
to the concept of fault.
The Indian law of negligence had its origins in English Law. When India was a colony
of the British Government the legal system started its origins in our country; there have been
developments in both the countries. Legal Systems of both countries have developed the law
in the twin branches of the Law of Torts and the Law of Crimes. These developments have
been with regard to the constituent elements; the essential conditions to constitute the wrong,
the defences that may be pleaded by the wrong-doer in both the branches and remedies for the
wrongs in both the cases. The law in either county at present is not the same as it was earlier
though it has the same elements as they were there in the origin of the two branches of law.
The tort of negligence forms one of the most dynamic and rapidly changing areas of liability
in the modem common law. Its expansion since the nineteenth century reflects the pressures
which the rise of industrial and urban society has brought to bear upon the traditional categories
of legal redress for interference with protected interests. The growth and increasing
sophistication of insurance has also contributed to this expansion.

Meaning of the term Negligence

‘Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’.
Negligence, in general, means omission to do something which a reasonable man, guided by those
ordinary considerations which ordinarily regulate the conduct of human affairs, would do or the
doing of something which a reasonable and prudent man would not do. Winfield defines
‘negligence’ as a breach of a legal duty to take care, which results in damage, undesired by the
defendant to the plaintiff.
In other words, negligence is a failure to exercise the care that a reasonably prudent person would
exercise in like circumstances. Further negligence in its legal acceptance includes acts of omissions
as well as commission. The area of tort law known as negligence involves harm caused by
carelessness, not intentional harm.
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Definition of Negligence
According to Winfield and Jolowicz “Negligence is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff.”
Lord Wright states that “Negligence means more than headless or careless conduct, whether in
commission or omission; it properly connotes the complex concept of duty, breach, and damage
thereby suffered by the person to whom the duty was owed.”
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or reasonable
man would not do.

It can be characterized in three forms-

1. Nonfeasance: It means the act of failure to do something which a person should have
done. For example, failure to carry out the repairs of an old building when it should
have been done.
2. Misfeasance: It means the act of not doing an action properly when it should have been
done properly. For example, Doing the repairs of an old building but doing so by using
very poor-quality materials creating a major probability of a collapse which injures
people.
3. Malfeasance: It means the act of doing something which should not have been done in
the first place itself. For example, using products that are not allowed and combustible
to carry out the repairs of an old building, therefore, converting the building into a
firetrap leading to an accident.
Illustration
Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X
leaves the dog unattended who attacks a passer by badly injuring him. Here it will be said that
the act occurred due to the negligence of X.
In the general sense, the extent of liability in tort is determined by the number of damages a
party has incurred. Consequently, in criminal law, the extent of liability is determined by the
amount and degree of negligence.

How is Criminal Negligence Different from Civil Negligence?

• Criminal negligence is said to take place when a person acts in a particular way
which is an extreme departure from which a reasonable person would act in a similar
or same circumstance. The difference in civil negligence is that the conduct may not
be seen as a radical departure from the way a reasonable person would have
responded.
• Civil negligence occurs when a person fails to exercise ordinary care or due
diligence but criminal negligence relates to a conduct that is considered so extreme
and rash that it is a clear divergence from the way an ordinarily prudent person
would act and is considered to be more than just a mistake in judgment or distraction.
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• In civil negligence, there is a lesser burden of proof because the plaintiff in such a
case only has to prove that it is most likely that the defendant was negligent. But in
criminal negligence, the plaintiff has to prove “beyond a reasonable doubt” that the
defendant was negligent which is the highest standard of proof which means that the
evidence is so strong that there is no other logical explanation besides the fact that
the defendant acted with criminal negligence.
• The punishment for a person who was liable in a civil negligence case only extends
to the extent of damage caused to the plaintiff i.e compensation for the damages.
In criminal negligence cases, the punishment is much more serious and can be
convicted for a prison term, fine and probation supervision. Example the punishment
for criminal negligence amounting to death under section 304A of IPC can extend
to 2 years of jail and fine or both.
• For example, if someone driving a vehicle under the influence of drugs and alcohol
and caused the death of an individual, it would amount to criminal negligence since
this is considered extreme carelessness on their part.
But if a housekeeper in an office is mopping the floor and has forgotten to keep a
‘wet floor’ signboard, any accident that occurs would amount to civil negligence as
there was only a lack of due diligence on the part of the housekeeper but not extreme
neglect.

Essentials of Negligence
In essence, actionable negligence consists in the neglect of the use of ordinary care or
skill towards a person to whom the defendant owes the duty of observing ordinary care and
skill, by which neglect the plaintiff has suffered an injury to his person or property.
The essential components of negligence are,
1. Existence of a legal duty
2. Breach of duty
3. Resulting damage

1. Duty of care to the Plaintiff

The existence of a duty to take care, which is owed by the defendant to the complainant.
The word ‘duty’ connotes the relationship between one person and another imposing on the
one an obligation, for the benefit of another, to take reasonable care in all circumstances. Here
duty means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to
establish that the defendant owed to him a specific legal duty to take care, of which he has
made a breach. There is no general rule of law defining such duty. It depends in each case
whether a duty exists.
Whenever a person approaches another trusting him to possess the certain skill or
special knowledge on a given problem and depends on him for service and dispensation of that
skill, the second party is under an implied legal duty to exercise due diligence as is expected to
act at least in such a manner as is expected in the ordinary course from his contemporaries. So
it is not that the legal duty can only be contractual and not otherwise.
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Basis of duty of care:

The general principle forming the basis of the duty to take care is enunciated by Lord
Atkin in Donoghue v. Stevenson as follows,
“You must take reasonable care to avoid acts or omissions, which you can reasonably foresee,
would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer
seems to be – persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question”.

Donoghue v. Stevenson (1932) A.C. 562.

Facts of the Case:
A purchased a bottle of ginger beer from a retailer for the plaintiff, a lady friend. Some
of the contents were poured in a tumbler and she consumed the same. When the remaining
contents of the bottle were poured into her tumbler, the decomposed body of a snail floated out
with her ginger-beer. The appellant alleged that she seriously suffered in her health in
consequence of having drunk aa part of the contaminated contents. The bottle was of dark
opaque glass and closed with a metal cap, so that the contents could not be ascertained by
inspection. She brought an action against the manufacturer for damage. One of the defences
pleaded by the defendants was that he did not owe any suty of care towards the plaintiff.
The House of Lords held that the manufacturer owed her a duty to take care that the
bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.

Parameters for evaluating the standard of care

1. Importance of Object to be attached- which means if an object is of great
importance, then there shall be a difference in standard care when compared to an
object which of comparatively less importance. E.g. Public’s welfare is the prime
most importance.
2. Magnitude of Risk– where a person takes highly due care during some situation
and comparatively less care under some circumstances. E.g. A owns a gun which
is authorised by law. A shall pay highly due care when the gun is fully loaded.
likewise, he shall comparatively pay less care when the gun is not loaded with
any bullets.
3. Degree of consideration spent for services- The degree of care depends upon the
kind of service which is offered by the defendant and the consideration paid by
the plaintiff for the same.

Foreseeability, proximity and fairness as a parameter to evaluate the standard of care:

A. Foreseeability
To determine whether an act would be or would not be negligent, it is relevant to determine if
any reasonable man would foresee that the act would cause damage or not.
Foreseeability of an act is to be considered by the court not only for the imposition of duty to
take care but also for limiting the liability of the persons to whom the duty is owed.
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Charlesworth states that the reasonable man is only bound to foresee the probable consequences
of his act and not the possible consequences. Therefore, if a particular consequence is
foreseeable due to breach of duty then such acts constitute negligence. If it is unforeseeable
then no cause of action arises.

B. Proximity
Proximity means the nearest cause which is responsible for the injury i.e. It involves the notion
of nearness or closeness, a nexus or relationship. In other words, it means that if the person
who has suffered an injury is directly or rather proximately suffered the loss. Then only the
defendant will be liable. An example of proximity (or, rather, a lack of proximity) can be seen
in, Alcock v. Chief Constable of South Yorkshire Police– members of the general public
coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a
result were held to not be owed a duty of care, because the link between the defendants and
claimants was held to be too distant.

C. Fairness
It should be fair, just and reasonable for the courts to find that the defendant owed a duty of
care to the claimant. Owing to the vague nature of this criteria, this stage can be thought of as
somewhat of a ‘safety valve’, allowing judicial discretion in cases where public policy might
dictate that it would be unreasonable for a duty of care to be held to exist.
So, if all the above three, the case can be said duty of care can be said to exist.

2. Breach of duty
The failure to attain that standard of care, prescribed by the law, thereby committing a breach
of such duty. There is certainly a breach of legal duty if the person exercising the skill does
something which an ordinary prudent man would not have done or fails to do that which an
ordinary prudent man would have done in a similar situation. The standards are not supposed
to be of very high degree, but just of a relative kind, that is expected from an ordinarily prudent
man in the ordinary course of treatment.

Glasgow Corporation v. Muir

Facts: Sunday School children were going to have a picnic. A large tea urn was carried along
the corridor got overturned and scalded a girl. The parents of the girl sued Glasgow
Corporation, claiming they owed the girl a duty of care and they had breached this.
Held: It was held that the corporation owed a duty of care generally to the people, but, in this
case, it did not owe an additional duty of care to the Sunday School since they were not
expecting them. Lord Macmillan said the reasonable person test is a bit of an “impersonal test”
as “some persons are by nature unduly timorous” and others “fail to foresee or nonchalantly
disregard even the most obvious danger” → “The reasonable man is presumed to be free both
from over-apprehension and from over-confidence”

Achutrao Haribhau Khodwa v. State of Maharashtra.

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Facts: The deceased Chandrikabai was admitted in the Civil Hospital, Aurangabad for delivery
of a child. As she had got herself admitted to this hospital with a view to undergo a sterilization
operation after the delivery, the said operation was performed by Respondent. Soon thereafter
Chandrikabai developed high fever and also had acute pain which was abnormal after such a
simple operation. The wound of earlier operation was re-opened in order to ascertain the true
cause of the seriousness of the ailment and to find out the cause of the worsening condition of
Chandrikabai. It was found that a mop (towel) had been left inside the body of Chandrikabai
when sterilization operation was performed on her.
Held: In the present case facts speak for themselves. In a case like this, the doctrine of res ipso
loquitur clearly applies. Chandrikabai had a minor operation on and due to the negligence of
Respondent no.2 a mop (towel) was left inside her peritoneal cavity. There is a breach of duty
in the part of the doctor.

Standard of Care Required

The law requires taking of three points into consideration to determine the standard of care
required: (a) the importance of the object to be attended, (b) the magnitude of the risk, and (c)
the amount of consideration for which services are offered.

(a) The Importance of the Object to be attained

The law does not require greatest possible care but the care required is that of a
reasonable man under certain circumstances. The law permits taking chance of some
measure of risks so that in public interest various kinds of activities should go on.
(b) The Magnitude of Risk
The degree of care required varies according to each situation. What may be a careful
act in one situation may be negligent act in another. The law does not demand the same
amount of care under all situations. The kind of risk involved determines the
precautions which the defendant is expected to take.
(c) The amount of Consideration for which Services, etc. are offered
The degree of care depends also on the kind of services offered by the defendant and
the consideration charged therefor from the plaintiff.
3. Resulting damage
Damage, which is both causally connected with such breach and recognized by the law, has
been suffered by the complainant. The cause of action only arises when actual or real damage
is suffered.

Proof of negligence
To prove that whether there was an injury or nor lies upon the plaintiff i.e. the onus of
proof is on the plaintiff. Since it is the rule of evidence that a person who alleges negligence
must affirmatively prove negligence. However, there is the exception to this such as the
doctrine of Res Ipsa Loquitor, which means things speak for itself. In such cases, the onus of
proof can be shifted from the plaintiff to the defendant.

Res Ipsa Loquitur

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In the common law of torts, res ipsa loquitur (Latin for “the thing speaks for itself”) could be
a belief that infers negligence from the very nature of an accident or injury, in the absence of
evidence on how any defendant behaved. Although modern formulations have a different
jurisdiction, common law originally expressed that the accident should satisfy the required
components of negligence, that are duty, breach of duty, causation, and injury. In res ipsa
loquitur, the elements of duty of care, breach and causation are inferred from an injury that
doesn’t normally occur in absence of negligence.

Elements of res ipsa loquitur

1. The injury is of the type that doesn’t normally occur in absence of negligence.
2. The injury is caused by an agency or instrumentality inside the exclusive
management of the defendant.
3. The injury-causing accident isn’t the result of any voluntary action or contribution
on the part of the plaintiff.
4. Defendant’s non-negligent clarification doesn’t utterly justify plaintiff’s injury.

The Supreme Court of India in the Krishna Bus Service Ltd. v Smt. Mangli &
Ors. held:
“It would be for the driver who has special knowledge ofthe relevant facts to explain why the
vehicle overturned. A presumption about the negligence will arise. In the absence of any
explanation by the driver the maxim res ipsa loquitur would be attracted.”

National Small Industries v. Bishambhar Nath

Facts: The defendant had been storing combustible material in the rooms which were in his
exclusive control and supervision. Only the workers of the defendant had access to these rooms.
The workers were in the habit of smoking cigarettes and bidis inside the storeroom during
working hours. No circumstances could be located which would suggest an extraneous source
of fire. The explosives were also not such as would ignite by themselves. The cause of the fire
was thus attributed to negligence of the employees of the defendants on the basis of the
probability of their having a lighted cigarette and in the storeroom.
Decision:
The court held that, “Where the circumstances are not equivocal and in all probability the
fire would not take place, but for some negligence on the part of the defendant or his
employees, there is no reason not to apply the doctrine res ipsa loquitur”.

The Court also relied on section 114 of the Evidence Act and held:
“The Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and private
business, in their relation to facts of the particular case.”

Municipal Corporation of Delhi v. Subhagwati

Facts: Suits for damages were filed by the plaintiff as a heir of three persons who dies as a
result of collapse of the clock belonging to the defendant corporation.
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Decision: The court held that doctrine of res ipsa loquiter was rightly applied as in the
circumstances of the case the mere fact that there was a fall of the clock tower, which was
exclusively under the ownership and control of the defendant, would justify raising an
inference of negligence so as to establish a prima facie case against the defendant.
In State of Punjab v Mt. Champa, the High Court considered that principle laid down
in Rylands v. Fletcher, Municipal Corporation of Delhi v. Subhagwanti and Mangilal v.
Parasram. drew the following inference on negligence and res ipsa loquitor:
1. The standard to determine whether a person has been guilty of negligence is the
standard of care which, in the given circumstances, a reasonable man could have
foreseen.
2. The test is foreseeability, not probability.
3. The more serious the consequences if care is not taken, the greater is the degree
of care which must be exercised.
4. While the initial burden of proof of negligence is on the claimant, barring
exceptional cases, the principle, ‘res ipsa loquitur’ comes into play. It is a rule of
evidence and does more than cast a provisional burden on the defendant.
5. Having regard to the local conditions prevailing in this country, when the res ipsa
loquitur is attracted, it should be given wide as amplitude and as long a rope as
possible in its application to the case of a motor accident.
6. The defendant cannot escape liability merely by preferring hypothetical
explanations, however plausible, of the accident.”
No cause of action arises unless all three components exist. If the claimant
satisfies the court on the evidence that above mentioned three ingredients are made out,
the defendant should be held liable in negligence. The damage caused may be physical
to the person or property, mental or financial, which is recognized by law and caused
by breach of duty which was reasonably foreseeable.

Defences to an action of Negligence

There are two kinds of defences in Law of Torts, one known as the General Defenses
and the other known as the Special Defenses. The General Defenses are applicable to all Torts,
the Special Defenses like the ones described herein deal with such defences which are
especially applicable to the Tort of Negligence and if proved the plaintiff would be non-suited.
In the case of the Tort of Negligence, there are certain defenses of the general type and there
are certain special defenses as well. The general defenses are those which from good old days
have been invoked by the defendants to defend the claim put forward against them for the torts
committed against them. These defenses have origin in the principles of Common Law and
there are certain defenses which are the gift of the statutory enactments.
This part highlights the important defenses by which the defendant may defeat the
action of Negligence against him.
1. Contributory negligence
Contributory negligence in common-law jurisdictions is mostly a defense to a claim
based on negligence. When the plaintiff by his own want of care contributes to the damage
caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty
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of contributory negligence. This is a defense in which the defendant has to prove that the
plaintiff failed to take reasonable care of his own safety and that was a contributing factor to
the harm ultimately suffered by the plaintiff.
This principle has relevancy to the determination of liability and is applicable once
plaintiffs/claimants have, through their own negligence, contributed to the hurt they suffered.
Here, plaintiffs negligence does not mean a breach of duty towards the other party but it means
the absence of due care on his part about his own safety. It can even be applied by the court in
a tort matter no matter whether or not it absolutely was pleaded as a defense.
There is no contributory negligence if the plaintiff has taken as much care as a prudent
man in a similar situation.
In Sushma Mitra v. Madhya Pradesh State Road Transport Corporation the
plaintiff was travelling in a bus resting her elbow on a window sill. Thus, bus at that time was
moving on a highway. She was injured when hit by a truck which was coming from the opposite
direction. When sued for the injury, the defendant took the plea that the act of resting the elbow
on a window sill was an act of contributory negligence. The Madhya Pradesh High Court did
not allow this defence. It was held that as she acted like a reasonable passenger while the bus
was moving on the highway she was entitled to claim compensation.
In some jurisdictions, the belief states that if a victim, who is guilty to any degree, even if he
is guilty for only one per cent, is also denied compensation entirely. This can be referred to as
pure contributory negligence.
In Butterfield v. Forrester the defendant wrongfully obstructed a highway by putting
a pole across it. The plaintiff who was riding violently in the twilight on the road collided
against the pole and was thrown from his horse and injured. If the plaintiff had been reasonably
careful, he could have observed the obstruction from a distance of 100 yards and thus avoided
that accident.It was held that the plaintiff had no cause of action as he himself could have
avoided the action by exercising due care.
Lord Ellenborough, CJ said, “One person being in fault will not dispense with
another’s using ordinary care for himself. Two things must occur in support of this action, an
obstruction in the road by the fault of the defendant and no want of ordinary care to avoid it on
the part of the plaintiff.”
This rule worked a great hardship particularly for the plaintiff because for a slight
negligence on his part he may lose his action against a defendant whose negligence may have
been the main cause of damage to the plaintiff. The courts modified the law relating to
contributory negligence by introducing the so-called rule of ‘Last Opportunity’ or ‘Last
Chance’.

Last opportunity rule:

According to this rule, when two persons are negligent that one of them who had the
later opportunity of avoiding the accident by taking ordinary care should be liable for the loss
It means that if the defendant is negligent, and the plaintiff having a later opportunity to avoid
the consequences of the negligence of the defendant does not observe ordinary care, he cannot
make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is
with the defendant, he will be liable for the whole of the loss to the plaintiff.
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Till the passing of Law Reform (Contributory Negligence) Act 1945, contributory
negligence was a complete defense in England. This legislation has regulated the application
of this defense. It provided for reduction of damages recoverable in case of contributory
negligence. The legislation gives the most important directions that the reduction of damage
shall not be unfair, unjust, capricious and arbitrary, but it shall be based on equitable principles
of justice.

Law in India
Contributory negligence was never accepted as a complete defense in India. High
Courts in India dealt this matter in the initial independence years.
In Jang Bahadur Singh v. Sunder Lal Mandal And Ors., the court observed that,
“Contributory negligence implies negligence on both sides. It is a question of fact in each case
whether the conduct of the plaintiff amounts to contributory negligence. Thus, where a party’s
negligence, even though it continued to the end but did not contribute to the accident, or the
collision, which was entirely due to the negligence of the other party, the latter is liable to the
former in damages”

In Rehana Rahimbhai Kasambhai v. The Transport Manager, Ahmedabad, the

court held that, “This rule of “last opportunity” obviously failed to give equitable treatment to
the parties concerned because it was based on an illogical postulate that in every case the person
whose negligence came last in time was solely responsible for the damage. It took no account
of the partial contribution to the unfortunate accident by the other party”.
In the instant case, the Court observed that “The question is to what extent she has made
this contribution. Answer to this question is necessary because the damages which would
eventually be awarded to the petitioner would stand reduced in proportion to her contribution
to the accident” Thus not a complete bar of recovery but the only apportionment was set as a
practice in such cases.
Liability can even be imputed to an owner of an automobile who lends it to a friend.
Here, the driver of the automobile is acting in the capacity of an agent of the owner. If the
owner is harmed by the driver’s negligence and sues the driver, the owner will lose the case as
a result of the negligence of the driver is imputed to the owner, thereby rendering him
contributory negligent. This concept is understood as imputed contributory negligence.

2. Act of God or Vis major:

It is such a direct, violent, sudden and irresistible act of nature as could not, by any
amount of human foresight have been foreseen or if foreseen, could not by any amount of
human care and skill, have been resisted. Such as storm, extraordinary fall of rain,
extraordinary high tide, earthquake etc.
In Nichols v. Marsland, the defendant had a series of artificial lakes on his land in the
construction or maintenance of which there had been no negligence. Owing to exceptionally
heavy rain, some of the reservoirs burst and carried away four-country bridges. It was held that
the defendant was not liable as the water escaped by the act of God.

3. Inevitable accident
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Inevitable accident also works as a defence of negligence. An inevitable accident is

beyond the control of a reasonable prudent man. It could not possibly, be prevented by the
exercise of ordinary care, caution and skill.
In Stanley v. Powell, the plaintiff and the defendant, who were members of a shooting
party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun
glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable
accident and the defendant was not liable.

Remedies in actions of Negligence

The remedy for the action of negligence in civil law is unliquidated damages (i.e. the
amount of damages depends on the facts of the case and the nature of the injury sustained by
the claimant), injunction or remuneration.
1. A suit or a plaint need to be filed in a court of judicature stating the things
happened to you.
2. The person filing the suit needs to authorise an advocate to represent on his/her
behalf by filing a vakalatnama. This is not a compulsion.
3. Then comes the hearing stage where the parties to the suit are heard and the
documents are verified by the judge.
4. Written statements needs to be filed by the respondents proving himself to be free
of whatever charge the plaintiff has put against him.
5. The plaintiff has to reply to the recorded written statement of the defendant
substantiating himself in the court of law.
6. The other documents required to substantiate the arguments by each of the parties
has to be filed.
7. Then the judges frame the issues and the parties will have to fight their case upon
the issues so framed according to the substantiated documents and evidence.
8. The documents that substantiated by the parties, need also to be accomplished by
a witness who will prove in the court that he saw or witnessed the event or so.
9. Once the witnesses, documents and issues are looked into, the judge decides as to
in whose favour the judgement should be and acts as an empire in the adversary
system of the Indian Courts. The judgement is either given in the form of paying
damages, compensation, injunction or remuneration for the losses suffered.

NUISANCE
Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per law.
However, if someone else’s improper use or enjoyment in his property ends up resulting into
an unlawful interference with his enjoyment or use of that property or of some of the rights
over it, or in connection with it, we can say that the tort of nuisance has occurred.
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Nuisance under Law of Torts

The word nuisance is derived from the French word nuire, which means ‘to do hurt, or to
annoy’. Blackstone describes nuisance as something that “worketh hurt, inconvenience, or
damage.” Nuisance has been defined to be anything done to the hurt or annoyance of the lands,
tenements or hereditaments of another, and not amounting to trespass.
Trespass is a direct interference and is actionable per se. But nuisance is
generally consequential and is actionable only on the proof of actual damage.
Nuisance is an unlawful interference with a person’s use or enjoyment of land or of some right
over or in connection with it.

Definitions by Various thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements
of another, or of the lands, one which doesn’t amount to trespass.

According to Salmond: “The wrong of nuisance consists in causing or allowing without

lawful justification the escape of any deleterious thing from his land or from elsewhere into
land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration,
electricity, disease, germs, animals”.

Essentials of nuisance
1. Wrongful act (unlawful interference)
For an act to constitute nuisance it must be prima facie wrongful or it should be an
unlawful interference with a person or his property.
2. Actual damage/ loss
Inconvenience or annoyance caused to another which the law considers as substantial
or material as opposed to sensitivity or delicacy.
In Ushaben v. Bhagyalaxmi Chitra Mandir, the plaintiffs’-appellants sued the
defendants-respondents for a permanent injunction to restrain them from exhibiting the
film “Jai Santoshi Maa”. It was contended that the exhibition of the film was a nuisance
because the plaintiff’s religious feelings were hurt as Goddesses Saraswati, Laxmi and
Parvati were defined as jealous and were ridiculed. The court dismissed the plea stating
that hurt to religious feeling was not an actionable wrong and the Plaintiff is free to not
watch the movie. Hence, it was held that in order to claim damages for Nuisance,
the Interference shall be in a state of continuing wrong.

Kinds of Nuisance

1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common injury, danger or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which
must necessarily cause injury, obstruction, danger, or annoyance to the people who may have
occasion to use any public right.
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Public nuisance affects the society and the people living in it at large, or some considerable
portion of the society and it affects the rights which the members of the society might enjoy
over the property. The acts which seriously affects or interferes with the health, safety or
comfort of the general public is a public nuisance.
Instances where an individual may have a private right of action in respect to a public nuisance:

• He must show the existence of any personal injury which is of a higher degree than
the rest of the public.
• Such an injury has to be direct and not just a consequential injury.
• The injury must be shown to have a huge effect.

Important Cases/ Illustrations

1. In Soltau v. De Held – The plaintiff resided in a house next to a Roman Catholic
Chapel of which the defendant was the priest and the chapel bell was rung at all hours
of the day and night. It was held that the ringing was a public nuisance and the
plaintiff was held entitled to an injunction.
2. The Land Mortgagee Bank of India v. Ramanand – The plaintiffs were owners of
a building containing a large number of rooms and had derived a considerable
income. The defendants were owners of an adjacent cotton mill which was erected
after the occupation by the plaintiffs of their building. Owing to the noise and smoke
of mill certain rooms in the building remained unlet. In an action against the
defendants, the plaintiffs obtained compensation and an injunction prohibiting any
increase of smoke cotton fluff, or noise of machinery, beyond what subsisted at the
time of the decree.
3. Campbell v. Paddington Corporation - The plaintiff was in possession of a house
in London from the windows of which there was an uninterrupted view of part of a
certain main thoroughfare along which it was announced that the funeral procession
of King Edward VII was to pass. One agreed to take and pay for seats on the first and
second floors of the house in order to see the procession. The defendants caused a
stand to be erected across a certain highway to enable the members of the Council
and their friends to view the procession. This stand was a public nuisance and is
obstructed the view of the main thoroughfare from the windows of the first floor of
the plaintiff’s house. In an action by the plaintiff to recover images for the wrongful
interference with the use and enjoyment of her house and the special loss he had
sustained, it was held that she was entitled to damages and the profit which but for
the defendants act she might have made by letting seats.

2.Private Nuisance
Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his
property is ruined by another. It may also injuriously affect the owner of the property
by physically injuring his property or by affecting the enjoyment of the property. Unlike
public nuisance, in private nuisance, an individual’s usage or enjoyment of property is
 P a g e | 15

ruined as distinguished from the public or society at large. The remedy for private
nuisance is a civil action for damages or an injunction or both.

Elements which constitute a private nuisance

• The interference must be unreasonable or unlawful. It is meant that the act should
not be justifiable in the eyes of the law and should be by an act which no reasonable
man would do.
• Such interference has to be with the use or enjoyment of land, or of some rights over
the property, or it should be in connection with the property or physical discomfort.
• There should be seeable damage to the property or with the enjoyment of the
property in order to constitute a private nuisance.
•
Case Law: Rose v. Miles (1815) 4M &S. 101
The defendant had wrongfully obstructed a public navigable creek which obstructed the
defendant from transporting his goods through the creek due to which he had to transport his
good through land because of which he suffered extra costs in the transportation. It was held
that the act of the defendant had caused a public nuisance as the plaintiff successfully proved
that he had incurred loss over other members of the society and this he had a right of action
against the defendant.

A nuisance may be in respect of either property or physical discomfort

1. Property
In the case of a nuisance with respect to the property, any sensible injury to the property will
be enough to support an action for the damages.

2. Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential conditions
required.
• In excess of the natural and ordinary course of enjoyment of the property.
The usage by the third party should be of out of the natural course of enjoyment from one party.
• Interfering with the ordinary conduct of human existence.
The discomfort should be of such a degree that it would affect an individual in the locality and
people would not be able to put up or tolerate with the enjoyment.
Radhey Shyam v. Gur Prasad AIR 1978 All 86
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other
individuals for permanent injunction restraining the defendant from installing and running a
flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed another suit
against Radhey Shyam and five other individuals for a permanent injunction from running and
continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing a lot
of noise which in turn was affecting the health of the plaintiff. It was held that by running a
flour mill in a residential area, the defendant was causing a nuisance to the plaintiff and
affecting his health severely.
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Defences to Nuisance:

There are two valid defences for nuisance which are as follows,
1. Prescription:
Prescription is a title acquired by use and time, and allowed by law as and when a man
claims anything as he, his ancestors or they whose estate he have had possession for the
prescribed period. The essence of prescription can be found in Section 26 of the
Limitation Act and Section 15 of the Easements Act. Also, prescription is something
of a kind of a special defence because if a nuisance has been openly and peacefully
carried out without any interruption, in that the case the defence of prescription can be
used. The nuisance is considered to be legal as if it had been authorized in its
commencement by a grant from the owner of the land when the period of twenty years
has been expired.
2. Statutory authority:
When a statute has authorised doing of a particular act or the use of land in a particular
way that all the remedies whether by indictment or action or charge, are taken away
provided that necessary reasonable precaution has been taken. The statutory
authority may be absolute or conditional. When the statutory authority is absolute, the
statute allows the act and it is unnecessary that the act must lead to nuisance or any
other injury. When the statutory authority is conditional, the state allows the act to be
done only if it can be done without any causation of nuisance or any form of injury.
In this case, there is a need for the exercise of due care and caution and due regard for
private rights. Where undertakers act under a mandatory obligation (e.g. statutory
obligation) whether or not there is a saving clause not exempting them from liability in
nuisance, there is no liability in nuisance if what has been done is that which was
expressly required to be done, or was reasonably incidental thereto.
There is a distinction in this context between statutory obligation or duty and statutory
power which is permissive in nature. In case of the former, there is immunity from an
action based on nuisance but in case of the latter, there is no immunity and power must
be exercised in strict conformity with private rights; but even in the former case there
will be no immunity in either of the cases when the action is taken is ultra vires to the
statute.
In Vaughan v. Taff Vale Rly, the defendants who had authority by statute to
locomotive engines on their railway, were held not liable for a fire caused by the escape
of sparks.

In the case of a nuisance, it is no defence

1. That the plaintiff himself came to the nuisance;
In Village of Wilsonville v. SCA Services, the plaintiffs, a village and other
governmental bodies, alleged that the defendant’s hazardous chemical landfill was a
public nuisance. The plaintiffs sought to enjoin the operations of the landfill and require
removal of toxic waste and contaminated soil. The court found that there was a
substantial danger of groundwater contamination and explosions from chemical
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reactions. Although the damages were prospective, the nuisance already was present.
Therefore, the court granted an injunction and ordered a site clean-up.
“Coming to a nuisance” is the phrase used to describe a defence that the complainant
or plaintiff affected by the nuisance moved into the area where he complained about
activity” had already been in existence. An example of “coming to a nuisance” occurs
when someone moves onto the property near an airport or industrial complex and then
complains of the nuisance that existed prior to his moving there.
Generally, the fact that an individual purchases property with the knowledge of the
existence of a nuisance or that he came to the nuisance will not defeat his right to the
abatement of the nuisance or recovery of damages. This cannot be taken as a defence.
2. That the act causing nuisance is beneficial to the public
3. The place where the nuisance is created is the only place suitable for the purpose or
4. That the defendant is merely making reasonable use of his property.
5. It is no defence that the defendant’s operations would not alone amount to a nuisance.
E.g. the other factories contribute to the smoke complained of.

Remedies for Nuisance

The following remedies exist for nuisance. They are:
1. Injunction-It may be a temporary injunction which is granted on an interim basis
and that may be reversed or confirmed. If it’s confirmed, it takes the form of a
permanent injunction. However, the granting of an injunction is again the
discretion of the Court.
2. Damages– The damages offered to the aggrieved party could be nominal
damages i.e. damages just to recognize that technically some harm has been
caused to the plaintiff or statutory damages i.e. where the amount of damages is
as decided by the statute and not dependent on the harm suffered by the plaintiff
or exemplary damages i.e. where the purpose of paying the damages is not
compensating the plaintiff, but to deter the wrongdoer from repeating the wrong
committed by him.
3. Abatement– It means the summary remedy or removal of a nuisance by the party
injured without having recourse to legal proceedings. It is not a remedy which the
law favours and is not usually advisable. E.g. – The plaintiff himself cuts off the
branch of the tree of the defendant which hangs over his premises and causes a
nuisance to him.
4.
Conclusion
A nuisance arises whenever a person uses his property to cause material injury or annoyance
to a reasonable neighbour. Odours, dust, smoke, other airborne pollutants, water pollutants and
hazardous substances have all been held to be a nuisance. Under both private and public
nuisance law, the plaintiff must prove that the defendant’s activity unreasonably interfered with
the use or enjoyment of a protected interest and caused the plaintiff substantial harm.
The trier of fact determines whether an activity is unreasonable by balancing the social utility
of the activities against the harm they create. Private nuisance actions to gain compensation
and force polluters to discontinue interference with their physical private property as well as
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with their comfort and enjoyment of their property. Public nuisance law protects from
interference a “right common to the general public.”
Plaintiffs may bring a public nuisance action if there are damages, interference, or
inconvenience to the public. A state may assert a public nuisance action as an exercise of its
police powers the typical situation. A private citizen may bring a public nuisance action only
if he or she can show that he or she has suffered from harm that can be distinguished from that
suffered by the members of the general public.

STRICT LIABILITY
The journey of the evolution of a legal principle cannot be better understood through
the study of any other principle than of absolute liability principle. It starts from a case of
causing private nuisance/harm to a person, arising in the 19th century England, where the court
establishes a principle of ‘strict liability’ and then the journey reaches a landmark point in the
case of M.C. Mehta’s where the Indian Supreme Court, while India is a developing country,
not economically very strong and affluential, still upholds the economic liability of the
defendant causing a public nuisance, which further causes damage to the environment
judiciary, and raises the standard and degree of the liability, making it an ‘absolute’ one. This
is a journey of a tortious, civil law principle transforming into an environmental and
constitutional law principle, and also a principle travelling from the recognition of civil rights
to that of fundamental rights, which play the pivotal role in claiming the compensation from
the defendant.
Strict liability is the principle which evolved from case of Rylands v. Fletcher in the
year 1868. This principle clearly states that a person who keeps hazardous substances in his
premises, is responsible for the fault if that substance escapes in any manner and causes
damages. This principle stands true if there was no negligence on the side of the person keeping
it and the burden of proof always lies on the defendant to prove how he is not liable.
Facts: There were two men living next to each other, Rylands and Fletcher. Fletcher owned a
mill for whose energy requirement; he constructed a water reservoir on his land. To get this
work done, he had hired independent contractors and engineers. There were old unused shafts
under the site of the reservoir which the engineers didn’t notice and thus did not block them.
Due to the negligence of the contractors, the shafts that led way to Rylands land burst when
water was filled in the reservoir. This caused huge damage and loss to Ryland as the water
entered into his coal mine. Thus, Ryland filed a suit against Fletcher.
Issues: The issue was very concise and straight. Can the defendant be held liable for the act of
someone else due to which an entity on his land escapes without his negligence or intention?
The defendant took the defence that that it was not his fault but the contractor. His being liable
for the damage, the cause of which was unknown to him was not acceptable to him.
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Judgment: The house of the Lords rejected the plea of the defendant and claimed him to be
liable for all the damages to Rylands.
Sir Lord Cairns: On the other hand if the Defendants, not stopping at the natural use of their
close, had desired to use it for any purpose which I may term a non-natural use, for the purpose
of introducing into the close that which in its natural condition was not in or upon it, for the
purpose of introducing water either above or below ground in quantities and in a manner not
the result of any work or operation on or under the land, – and if in consequence of their
doing so, or in consequence of any imperfection in the mode of their doing so, the water came
to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the
Defendants were doing they were doing at their own peril; and, if in the course of their doing
it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its
passing away to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of
that, in my opinion, the Defendants would be liable.
According to the rule set by this case, if a person brings on his land and keeps there any
dangerous thing, a thing which is likely to do mischief if it escapes, he will be prima
facie answerable to the damage caused by its escape even though he had not been negligent in
keeping it there. The liability arises not because there was any fault or negligence on the part
of a person, but because he kept some dangerous thing on his land and the same has escaped
from there and caused damage. Since, in such a case the liability arises even without any
negligence on the part of the defendant, it is known as the rule of strict liability.
Therefore, this is one of the most important landmark judgements in the history of the
legal system since it led to the formulation of a new concept, a new idea and thus a new
principle- the rule of the strict liability. Based upon his principles, there were certain
qualifications given to decide whether a liability is strict liability or not. Only after these
essential qualifications being satisfied, a liability can be termed as strict liability.
Essentials of Strict Liability

1. Dangerous Thing
This simply means that the defendant will be liable for the damages only when the
thing that escaped from his premises was a dangerous thing. The word “dangerous” here
implies that it is likely to do any sort of mischief if it escapes from the land of the defendant.
In the case studied above, the dangerous thing was the collected water in the reservoir on
Fletcher’s land. The rule specifies that things like gas, electricity, explosives, flag pole,
noxious fumes, vibrations, yew trees, sewage and even rusty wires can also be termed as
dangerous if escapes from the premises of the owner.

2. Escape
It is also essential that the thing causing harm must escape from the premises of the
defendant. It should not be within the reach of the defendant after its escape. For example,
if the poisonous plants growing on the defendant’s land escapes and enters the plaintiff’s
land and is then eaten up by the cattle on the plaintiff’s land, the defendant is liable for the
damages caused to the cattle of the plaintiff. On the other hand, if the plaintiff’s cattle
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themselves enter the land of the defendant and eat the poisonous plants and die, the
defendant will not be liable since there was no escape of his property. The case of Read v
Lyons & co. shows that the defendant is not liable if there is no escape. In this case, the
plaintiff, Read was an employee in the defendant’s ammunition factory. While she was
working in the premises of the defendant, a shell exploded and the plaintiff was severely
injured. The defendant could not be held negligent since there was no negligence on his
part.
Even the rule of Rylands v. Fletcher didn’t apply here since the dangerous thing,
the shell, had not escaped from the premises of the defendant. Thus, Lyons & co. was not
held liable whereas in the case of Rylands v. Fletcher, the dangerous thing, the water had
escaped from the defendant’s premises. In the case of Ponting v. Noakes, the claimants
horse died after it had reached over the defendant’s fence and ate some leaves from a Yew
tree. The defendant was not liable under Rylands v. Fletcher as the Yew tree was entirely
in the confines of the defendant’s land and there had therefore been no escape.

3. Non-Natural Use of Land

In the landmark case, the water collected constituted the non-natural use of land.
Keeping water for domestic purposes is natural use but keeping water for use in the mill is
non-natural use of land. For the use to be non-natural, it must be some special use bringing
with it increased danger to others, and must not merely by the ordinary use of land or such
a use as is proper for the general benefit of community. Electric wiring in the house, electric
wiring in the shops, supply of gas in gas pipes in a dwelling house and water installation in
a house are other examples of the natural use of land. In the case of Sochacki v. Sas, the
defendant was a lodger in the claimant’s house. He lit an open fire in his room and then
went out. Unfortunately, a spark jumped from the fire and set the room alight. The fire
spread to the rest of the house and the claimant brought an action against the defendant
based on liability arising under Rylands v. Fletcher.
It was held that the defendant was not liable. Whilst the fire was likely to do mischief
if it escaped, the use of an open fire in the claimant’s fireplace was not considered a non-
natural use of land. This case clearly explains the conditions when the use of the land by
the defendant can be described as non-natural use and when not. These are the three basic
essentials for the applicability of the rule of strict liability. If the three cases are satisfied
well in the case, then the defendant will be held liable for the tort under the tort of “strict
liability” and following the “no fault liability principle”.

Exceptions to the Rule of Strict Liability

Strict liability evolved from the Rylands v. Fletcher case in the English court in the
year 1868. This principle clearly states that a person, who keeps hazardous substances in his
premises, is responsible for the fault if that substance escapes in any manner and causes
damages. This principle stands true if there was no negligence on the side of the person keeping
it and the burden of proof always lies on the defendant to prove how he is not liable. However
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there are certain exceptions to this rule. These exceptional rules have been recognized by
the Rylands v. Fletcher case and later cases. The exceptions are as follows:
1. Plaintiff’s Own Fault
If somehow the plaintiff himself enters into the land of the defendant and injures
himself and then claims for damages, he is not liable for the damages since he himself went
forward to the dangerous thing. In the case of Ponting v. Noakes (1994), the claimant’s
horse died after it had reached over the defendant’s fence and ate some leaves from a Yew
tree. The defendant was not liable under Rylands v. Fletcher as the Yew tree was entirely
in the confines of the defendant’s land and there had therefore been no escape. The plaintiff
cannot recover anything if the damage was caused due to the unusual sensitiveness of the
plaintiff’s apparatus and such damage won’t cause any harm to a person carrying ordinary
business there. Until and unless there is “escape” of the dangerous thing or the land of the
defendant is being used for non-natural purposes for an ordinary person, the defendant can’t
be held liable.
2. Act Of God
An act of God can be defined as an event that directly and exclusively results from
the occurrence of natural causes that could not have been prevented by the exercise of
foresight or caution. In the context to the strict liability, if the escape was unforeseen and
without any human intervention, caused by some super natural force, then the defendant
will not be liable for the damages. For instance, in the case of Nichols v Marsland, this
defence was successfully pleaded. In this case, the defendant built up a dam in the natural
stream flowing on his land to create artificial lakes there. Unfortunately, that land faced
heavy rainfall that year. The rainfall was extra ordinary and unforgettable. Due to the rain,
the embankments of the artificial lakes gave away. The rush of the water down the stream
washed away the bridges of the plaintiff. It was held that the defendant was not liable.
3. Consent Of the Plaintiff
In this exception, there is no common benefit to the defendant and the plaintiff, as in
the case of volenti non fit injuria. For example, if the plaintiff and the defendant are
neighbours and share the same water source on the land of the defendant, if any damage is
caused to the plaintiff due to that collected water, the defendant won’t be liable. On the
other hand, when a festival is organized and the display of fireworks causes damages to the
crowd, the organizers will be liable since the display will not be deemed to be conducted
for the benefit of all.
4. Act Of Third Party
The rule of strict liability doesn’t apply when the damages is caused due to the act of a
stranger. A stranger will be a person who is not the servant of the defendant nor is under
the control of the defendant. However, if the act of the stranger can be foreseen by the
defendant, due care must be taken by the defendant to avoid the damages. In the case of Box
v. Jabb, the reservoir of the defendant overflowed because of a blockage in the drains by
strangers. Thus, the court did not claim the defendant to be liable.
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5. Statutory Authority
An act done under the authority of the statute is a very strong defence to an action for
tort. However, the defence cannot be pleaded if the if there is any kind of negligence on the
part of the defendant who is under statutory authority. In the Green v Chelsea Co. (1894),
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 duty.

ABSOLUTE LIABILITY
The rule of absolute liability was evolved in the case of M.C. Mehta v. Union of India. This
was a very important landmark judgment that brought in a new rule in the history of the Indian
Law. The rule held that where an enterprise is engaged in a hazardous or inherently dangerous
activity and it harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, the enterprise is strictly and absolutely
liable to compensate to all those who are affected by the accident.

Facts: In the city of Delhi, there was severe leakage of oleum gas on the 4 th and the 6th of
December, 1985. This took place in one of the units of Shriram Foods and Fertilizers Industries
belonging to the Delhi Cloth Mills Ltd. due to this, an advocate practicing in the Tis Hazari
Court had died and many others were affected by the same. The action was brought through a
writ petition by way of public interest litigation (PIL).

In Indian law, public interest litigation means litigation for the protection of the public interest.
It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or
by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that
the person who is the victim of the violation of his or her right should personally approach the
court. Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the court that
the petition is being filed for a public interest and not just as a frivolous litigation by a busy
body.

Issue: The issue raised was a very strong issue. It said that if all these tragedies follow the rule
of strict liability, they will come under the exceptions laid down for Rylands v. Fletcher case.

Judgment: The Supreme Court took a very bold decision to evolve a new rule fit for the
economic and social conditions prevailing in India. The rule of absolute liability was then
formed in preference to the rule of strict liability. This rule ignored all the exceptions in
the Rylands v. Fletcher case.

The rule clearly held that where an enterprise is engaged in a hazardous or inherently
dangerous activity and it harm results to anyone on account of an accident in the operation of
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such hazardous or inherently dangerous activity resulting, the enterprise is strictly and
absolutely liable to compensate to all those who are affected by the accident and such liability
is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher.

ABSOLUTE LIABILITY = STRICT LIABILITY – EXCEPTIONS

The court gave two basic reasons justifying the rule:

▪ Any enterprise carrying on hazardous activities for private profits have the social
responsibility to compensate those suffering from any accident and it should
absorb such loss as an item of overhead expenses.

▪ The enterprise alone has the resources to discover and guard against such hazards
and dangers.

This is the clear explanation of the absolute liability or the rule of M.C.Mehta v. Union
of India. The court also laid down the measures of compensation to be paid by the enterprise.
It said that the larger and more prosperous the enterprise, the greater must be the amount of
compensation payable by it for the harm caused on account of an accident in the carrying on
of the hazardous or dangerous activity by the enterprise.

The Bhopal Gas Tragedy

The Bhopal Gas Tragedy is one of the most devastating accidents in the history. It was
a mass disaster caused by the leakage of Methyl Isocyanate (MIC) and other toxic gases from
a plant set up by the Union Carbide India Ltd. for the manufacture of pesticides in Bhopal on
the night of December 2, 1984. UCIL is a subsidiary of Union Carbide Corporation (UCC), a
multinational company registered in U.S.A. More than 27 tons of methyl isocyanate and other
deadly gases turned Bhopal into a gas chamber. None of the six safety systems at the plant
were functional, and Union Carbide’s own documents prove the company designed the plant
with unproven and untested technology, and cut corners on safety and maintenance in order to
save money. The disaster resulted in the death of at least 3000 persons and there were
serious diseases and injuries to many people. Some people permanently lost their eyes,
hearing senses, some suffered from neurological disorders and scores of other complications.

The Supreme Court laid the rule of absolute liability in preference to the strict liability.
The defence of the UCC on the grounds of sabotage was rejected and the principle laid by the
Supreme Court in the M.C. Mehta v. Union of India was followed.

The rule clearly held that where an enterprise is engaged in a hazardous or inherently
dangerous activity and it harm results to anyone on account of an accident in the operation of
such hazardous or inherently dangerous activity resulting, the enterprise is strictly and
absolutely liable to compensate to all those who are affected by the accident and such liability
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is not subject to any of the exceptions which operate vis-a -vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher.

It was thus hoped that the victims would be able to get relief without further much
delay. To see to it that the victims of the handling of hazardous substances can get expeditious
relief through insurance, The Public Liability Insurance Act, 1991 was passed.

Essential Elements of Absolute Liability

The essential elements of absolute liability are-

• Dangerous Thing– As per the rules laid down, the liability of escape of a thing from
an individual’s land will arise only when the thing which is collected is a dangerous
thing that is a thing which likely causes damage or injury to other people in person
or their property on its escape. In various torts cases which have happened all over
the world, the doctrine of strict liability has held a large body of water, gas,
electricity, vibrations, sewage, flag-pole, explosives, noxious fumes, rusty wires etc
are certain things which come under the ambit of dangerous things.
• Escape– Anything which has caused damage or mischief should have escaped from
the area which was under the control of the defendant to come under the ambit of
absolute liability. Like it happened in the case of Read vs Lyons and Co.[2] where
the plaintiff was working as an employee in the defendant’s company which was
engaged in manufacturing shells. The accident happened while she was on her duty
that day within the company’s premise. It happened when a piece which was being
manufactured there exploded and due to which the plaintiff suffered harm. After this
incident and a case was filed against the defendant’s company but the court
eventually let go the defendant and gave the verdict that strict liability is not
applicable here in this particular case. This was declared by the court because the
explosion that took place was within the defendant’s premises and not outside. And
the concept says that it should have escaped the dangerous thing like shell here from
the boundaries of the defendant premise which didn’t happen and was missing over
here. So, the negligence on the part of the defendant could not be proved in the court.
• Non-natural use of land– Water collected on land for domestic purposes does not
amount to non-natural use of land but if one is storing it in large quantities like in a
reservoir as it was the case in Ryland vs Fletcher[3] then it amounts to non-natural
use of land. The difference between natural and non-natural use of land by keeping
in mind the surrounding social conditions. As the growing of trees and plants on
land is considered as a natural use of land but if one starts growing trees which are
poisonous in nature then it will be considered as non-natural use of land. If an issue
arises between the defendant and the plaintiff even though the defendant is using the
land naturally, the court will not hold the defendant liable for his conduct.
• Mischief- To make the person liable under this principle, the plaintiff at first needs
to show that the defendant had done the non-natural use of land and escaped the
dangerous thing which he has on his land which resulted in the injury further. In the
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case of Charing Cross Electric Supply Co. vs Hydraulic Power Co.[4], the
defendant was assigned to supply water for industrial works. But he was unable to
keep their mains charged with a minimum pressure that was required which led to
the bursting of the pipeline at different places. This resulted in causing heavy
damage to the plaintiff which was proved in the court of law. The defendants were
held liable in spite of this that they were not at fault. These are the few rules where
this doctrine is applied.

Scope of Rule of Absolute Liability

In most of the places, the rule of strict liability and absolute liability are seen as exceptions in
the law. And the individual is held liable only when he/she is at fault. But, in such cases, the
individual could be held guilty even if he is not at fault. After the catastrophic accident of
Oleum Gas Leak case the act of The Public Liability Insurance Act, 1991 was introduced
with the main purpose of providing immediate relief to people who are victims of the accident
in which handling of hazardous substances is involved. The agenda behind this act was that the
act will create a public liability insurance fund which will eventually be used for the purpose
of compensating the victims. Hazardous Substance under this act is defined as any substance
which by reason of its chemical or any properties is liable to cause any damage to human
beings, other living creature, plants, microorganism, property or to the environment. The term
handling is described in section 2(c) of the Public Liability Insurance Act,1991 which is the
clear expression of the rule of absolute liability laid down in M.C Mehta vs Union of India.

The Public Liability Insurance Act, 1991

This act has the major aim of providing immediate relief to the persons affected by
accident occurring while handling any hazardous substances for matters connected with the
incident. It has the goal of providing public liability insurance. This act gained the assent of the
President on the 22nd of January, 1991. This act says that every owner who works with
hazardous substances and hires employees to control those dangerous things, shall have
policies and insurances where he will be insured against liability to give relief in case of death
or injury to a person or damage to property arising from the accident caused while carrying on
the hazardous activities. In respect of already established units, insurance policies had to be
taken as soon as possible and the rule gave the owners the time of one year to get into the
insurance contracts. This liability was based on the principle of “no fault liability“.

Hazardous substance means any substance or preparation which by reason of its

chemical or physic-chemical properties or handling, is liable to cause harm to human beings,
other living creatures, plants, micro-organisms, property or the environment. The term
“handling” in relation to any hazardous substance means the manufacture, processing,
treatment, package, storage, transportation by vehicle, use, collection, destruction, sovereign,
offering for sales, transfer of the like of such hazardous substance. This is the clause in the
Section 2(c) of the Public Liability Insurance Act, 1991. Therefore, this is the clear expression
of the rule of the absolute liability laid down in M.C. Mehta v. Union of India.
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Conclusion

Though a milestone is reached, when ‘absolute liability’ principle is declared as law by the
Supreme Court, but the journey is incomplete, and will not reach its destination, unless a
legislation is made, which address all these problems, so that the claim of the plaintiff is not
grounded on a dynamic and frequently changing judicial pronouncement. A legislative
provision gives weight to the rights of the victims and helps them in getting speedy justice.

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REMOTENESS OF DAMAGES
Meaning and Concept: Remoteness of Damages
It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional
to some exceptions). The question remains how much liability can be fixed, and what factor
determines it. The doctrine of the remoteness of damages is one such principle.

• An event constituting a wrong can constitute of single consequence or may constitute

of consequences i.e. series of acts/wrongs.
• The damage may be proximate or might be remote, or too remote.

The Problem of Remoteness

After the commission of a tort, the question of defendant’s liability arises. The consequences
of a wrongful act may be endless or there may be consequences of consequences. For ex: A
cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When the
pedestrian is knocked down, the bomb explodes. The pedestrian and four other persons going
on the road die and twenty other persons are severely injured due to the explosion a building
nearby is engulfed in fire due to the same explosion and some women and children therein are
severely injured. The question is, can the cyclist be liable for all these consequences?
He is liable only for those consequences which are not too remote from his conduct. No
defendant can be made liable ad infinitum (again and again, for ever and ever) for all the
consequences which follow his wrongful act. On practical ground a line must be drawn
somewhere, and certain kinds or types of losses, though a direct result of defendant’s conduct,
may remain uncompensated.

Remote and Proximate Damage

How and where is such a line to be drawn? To answer this question, we are to see whether the
damage is too remote a consequence of the wrongful act or not. If that is too remote, the
defendant is not liable. If, on the other hand, the act and the consequences are so connected that
they are not too remote but are proximate, the defendant will be liable for the consequences. It
is not necessary that the event which is immediately connected with the consequences is
proximate and that further from it is too remote.
In Scott v. Shepherd: A threw a lighted squib into a crowd, it fell upon X. X, in order to
prevent injury to himself, did the same thing and it fell upon Y and Y in his turn did the same
thing and it then fell on B, as a result of which B lost one of his eyes. A was held liable to B.
 P a g e | 27

His act was the proximate cause of damage even though his act was farthest from the damage
in so far as the acts X and Y had intervened in between.
In Haynes v. Harwood: The defendant’s servants negligently left a horse van unattended in a
crowded street. The throwing of stones at the horses by a child, made them bolt and a policeman
was injured in an attempt to stop them with a view to rescuing the woman and children on the
road. One of the defenses pleaded by the defendant was novus actus interviniens, or
remoteness of consequences i.e. the mischief of the child was the proximate cause and the
negligence of the servants was a remote cause. It was held that the defendant was liable even
though the horses had bolted when a child threw stones on them, because such a mischief on
the part of the children was anticipated.

Or let take a more general illustration (CASE X)

A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle
breaks her finger, the bicycle man loses his balance and gets in front of a fuel tanker, the tanker
to save the man on the bicycle steers left but unfortunately hits the railing to a river bridge and
falls into it, the lock of the fuel tank breaks and the oil spills into the river, the driver with the
truck drowns.

In the above case:

• the girl being hit is the direct damage and it is the direct damage caused by the act of A

• the damage caused to the cyclist is proximately caused by the falling of the girl and is
remote to the act of A

• the damage caused to the truck driver and the loss of material (fuel and fuel tank) is
remote to the act of A and proximate to the act of the cyclist

And it is to be noted that the accountability to negligence is made on the assumption that the
person is aware of the fact that rash driving can lead to fatalities (though the expected and the
actual results might not be the same).

Now, the starting point of any rule of the remoteness of damage is the familiar notion that a
line must be drawn somewhere, it would be unacceptably harsh for every tortfeasor to be
responsible for all the consequences which he has caused.

Certainly, the question of where to draw the line on recover-ability of consequential losses
cannot be answered by a mathematically precise formula. Judges have used their discretion
from time to time, and in that process, two formulas have been highlighted:

1. The test of reasonable foresight

2. The test of directness

The Test of Reasonable Foresight

According to this test, if the consequences of a wrongful act could have been foreseen by a
reasonable man, they are not too remote. If on the other hand, a reasonable man could not have
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foreseen the consequences, they are too remote. And, a person shall be liable only for the
consequences which are not too remote i.e. which could be foreseen.

The Test of Directness

According to the test of directness, a person is liable for all the direct consequences of his
wrongful act, whether he could have foreseen them or not; because consequences which
directly follow a wrongful act are not too remote.

The only question which has to be answered in such any case whether the defendant’s act is
wrongful or not, i.e., could he foresee some damage? If the answer to this question is in the
affirmative, i.e., if he could any damage to the plaintiff, then he is liable not only for those
consequences which he could have foreseen but for all the direct consequences of his
wrongful act.
The Contention (Waxing and Waning )
The test of reasonable foresight was, for the first time, laid down by Pollock, C.B., in his
separate opinions rendered in two cases of the Court of Exchequer in 1850, the cases
being Rigby v. Hewitt and Greenland v. Chaplin. This was rejected expressly in the case by
the court of appeal in Re Polemis and Furness, Withy and Co. Ltd. in favor of the test of
directness. Though the first authority for the view of advocating the directness test is the case
of Smith v. London & South Western Railway Company where Channel B. said:
where there is no direct evidence of negligence, the question what reasonable man might
foresee is of importance in considering the question whether there is evidence for the jury of
negligence or not…. but when it has been once determined there is evidence of negligence, the
person guilty of it is equally liable for its consequences, whether he could have foreseen them
or not. What the defendant might reasonably anticipate is only material with reference to the
question, whether the defendants were negligent or not, and cannot alter their liability if they
were guilty of negligence.

Smith v. London and South Western Railway Co.

FACTS – The railway company was negligent in allowing a heap of trimmings of hedges and
grass near a railway line during dry weather. A spark from the railway engine set fire to the
material. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt.
The defendants were held liable even though they could not have foreseen the loss to the cottage

Re Polemis and Furness, Withy & Co.

FACTS – The defendants chartered a ship. The cargo to be carried by them included a quantity
of Benzene and/or petrol in tins. Due to leakage in those tins, some of their contents collected
in the hold of the ship. Owing to the negligence of the defendants’ servants, a plank fell ito the
hold, a spark was caused.
Consequently, the owners of the ship were held entitled to recover the loss – nearly 200,000
pounds, being the direct consequence of the wrongful act although such a loss could not have
been reasonably foreseen.
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The interpretation of ‘direct cause’ by House of Lords in Liesbosch Dredger v. S.S.

Edison had the effect of limiting the scope of Re Polemis.

Liesbosch Dredger v. S.S. Edison

FACTS – Owing to the negligence of Edison, the dredger Liesbosch was sunk. The owners of
Liesbosch required it for the performance of a contract with a third party, but since they were
too poor to purchase a new one, they hired one at an exorbitant rate.
They sued the owners of Edison for negligence and their claim for compensation include:

1. the price of the dredger; and

2. the hire charges which they had to pay from the date of the sinking to the date
they could actually purchase a new dredger.
The House of Lords accepted their claim under the first head and allowed compensation equal
to the market price of the dredger comparable to Liesbosch. As regards the second head of
claim, the compensation allowed was for loss suffered in carrying out the contract with the
third party from the date of the sinking of Liesbosch to the date when another dredger could
reasonably have been put to work. Thus, the claim after the time when a new dredger could
have been reasonably purchased and put to work was rejected.

The reason why a new dredger could not be purchased by the plaintiffs was their poverty and
the House considered the additional loss being due to the extraneous cause of poverty and as
such too remote.

And then in the case of Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd.
(Wagon Mound Case) the test of directness was rejected by the Judicial Committee of the
Privy Council and it was held that the test of reasonable foresight is the better test.

The Wagon Mound Case

In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. Through
the carelessness of their servants, a large quantity of oil was allowed to spill into the harbour.
The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who
were shipbuilders and ship-repairers. They were refitting a vessel and for that purpose, their
employees were using welding equipment. The distance between the respondent’s wharf and
the Caltex wharf was 600 feet.

When the respondents’ manager became aware of the conditions in the vicinity of the wharf,
he instructed the workmen that no welding or burning operations were to be carried on until
further orders. He enquired from the manager of Caltex Co. whether they could safely carry on
the welding operations and the result of the inquiry, coupled with his own belief as to in
flammability of the furnace oil on water in the open led him to think that he could safely carry
on the operations. He gave instructions accordingly but directed that all safety precautions
should be taken to prevent inflammable material from falling into the oil.

On the third day, there was an outbreak of fire. The exact cause of the fire is unknown, but the
most probable explanation which the Court accepted was that underneath the wharf was
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floating a piece of debris with some smouldering cotton waste or rag on it. It was set on fire by
the molten metal falling from the wharf. Thus, floating oil was set a fire and the wharf was
severely damaged.

The trial as well as the Supreme Court followed the Polemis rule and held the defendant liable,
with the reason that any reasonable man could form the chain of events deduce that the
negligence of the defendant was the direct cause for the fire.

However, the Privy council ruled in favour of the Overseas Tankship Ltd. holding that the Re
Polemis was no longer valid law. Since a reasonable man could not foresee the damage caused,
the appellants were held not liable, even though the negligence of the servants was the direct
cause of the injury.

The test of reasonable foresight has been applied to many other cases thereafter.

Hughes v. Lord Advocate

In this case, the post office employees opened a manhole for the purpose of maintaining
underground telephone equipment. The manhole was covered with a tent. One evening it was
left surrounded by paraffin lamps but otherwise unguarded. A child of eight years entered the
tent and started playing with one of the lamps. The lamp fell into the manhole and caused a
violent explosion resulting in the fall of the boy in the hole and severe burns thereof.

It was held that since the kind of damage was foreseeable although the extent was not, the
defendants were liable.

Doughty v. Turner Manufacturing Co. Ltd.

The plaintiff was employed by the defendants. Some other workmen of the defendants let an
asbestos cement coverslip into a cauldron of hot molten liquid. It resulted in an explosion and
the liquid thereby erupted, causing injuries to the plaintiff. The cover has been purchased from
a very reputed manufacturer and nobody could foresee that any serious consequences could
follow by the falling of the cover into the cauldron.

Held, that the damage resulting from the explosion was not of the kind as could have been
foreseen, and, therefore, the defendants were not liable.

Some other cases for reference are Lampert v. Eastern National Omnibus
Co.; S.C.M.(United Kingdom) v. W.J.Whittall & Sons; Shaikh Gafoor v. State of
Maharastra

Conclusion
The test of reasonable foresight seems to be well established and widely accepted by now to
determine the question of the remoteness of damage, the facts of the case and the evidence
present shall always be the priority determining factors for the fate of any case.

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