Law of
torts is a type of law that brings into consideration different types of wrong
that is done against an individual. Law of torts is uncodified law in India
that means it is not part of the systematic code of law. However, it has its
share in many Indian laws that are in force, for instance, negligence in motor
vehicle Act, consumer protection Act and Indian contract Act, trespass,
conversion malicious prosecution and defamation in Indian Penal Code and many
other laws. In other words, tough remedies under the law of torts for tortiuous
fault is not enforceable in India but our right to get protected from these
offences are taken care of by various other laws as mentioned above. In the law
of torts, there is – Fault liability and No-Fault liability. In Fault
liability, the burden lies on the plaintiff to prove that the loss suffered by
him was the result of negligence or wrong intention on part of the
defendant. Offences like Nuisance,
conversion, trespass, malicious prosecution, defamation, assault, battery and
false imprisonment are part of fault liability. On the other hand in case of
no-fault liability, the defendant stands legally responsible for the loss
occurred irrespective of the presence of any negligence or bad intention or any
fault on his part. Vicarious liability, absolute liability and strict liability
are part of no-fault liability.
Countless
incidents like a gas leak that recently took place in Vishakhapatnam calls for
our attention on no-fault liability especially on the part of strict and
absolute liability. Absolute and strict
liability deals with the situation where a person is held responsible for harm
even if the person takes reasonable precaution to avoid any causality or where
there was no negligence or ill will on part of that person. Incidents like
Bhopal gas Tragedy, Chernobyl disaster and on recent count gas leak in
Vishakhapatnam as mentioned above moves around strict and absolute liability.
Both the liabilities are of the same nature but there is a minor difference in
their essentials. To understand the difference between absolute and strict
liability it’s important to understand its essentials.
Essentials of strict Liability[1]:-
-
A dangerous thing must be brought by a person on his land.
-
That dangerous thing
must escape from the vicinity of the
premises.
-
The thing must be
brought for the non-natural purpose.
Before
understanding one major difference between absolute and strict liability it is
important to focus on another difference i.e. exceptions. Unlike in the case of
absolute liability in strict liability, there are few exceptions that favour
the innocence of the defendant. Exceptions are:-
i.
Plaintiff's default
ii.
Act of God
iii.
Consent of the plaintiff
iv.
Act of the third party
v.
Statutory authority
Essentials of Absolute liability[2]:-
-
A dangerous thing must be brought by a person on his land.
-
That dangerous thing
must escape from the vicinity of the
premises.
-
The thing must be
brought for the non-natural purpose.
-
The thing must be bought
on land for commercial purposes.
One of the
major differences that come with absolute liability is that the thing is bought
on land for commercial purposes. This is one of the reasons that the defendant is found absolutely liable for the
harm caused due to the escape of the dangerous thing from the premises, without
any exception in favour of the defendant. Recently a poisonous gas leaked from
a storage tank of an industry owned by a South Korean company named LG Chem.
Police have charged the manager of the company for culpable homicide since the
incident took 11 lives[3]. The
report further says that-‘Hundreds were taken ill and rushed to the hospital,
while thousands were evacuated from surrounding villages’[4]. The
incident is said to be reminiscent of the Bhopal gas tragedy.
When we
talk about such incidents we need to understand whether it will come under
absolute liability or strict liability or would not come into any of these
liabilities. To come to a conclusion we need to check the concurrence of the
incident with the essentials of absolute and strict liability.
- First essential is that a dangerous thing must be brought on land.
And in this case, there was the presence of lethal gas in the factory.
-Second
essential is that the dangerous thing must escape
from the premises. In this case, a colourless harmful gas escaped from the
factory.
-Third
essential is that the thing must be bought for some unnatural use. Here, the gas was bought on the premises for
attainment of the task for which such gas is rarely used. Hence the gas was bought
for the non-natural purpose.
- To make
the case of strict liability or absolute liability we need to see whether this
case conforms to all the essentials of absolute liability or not. Here the gas
leak took place in a polymer factory which was set up for the commercial purpose. Hence the case falls under absolute
liability making the owner absolutely liable for the consequences of any
harmful repercussions. This case of gas leak in Vishakhapatnam is not the
single gruesome case that happened recently; a gas leak at the paper mill in an
industrial area in Raigarh Chhattisgarh and a boiler blast at a thermal power
station in Tamil Nadu where many people were injured are also examples of such
harmful incidents. The role of absolute and strict liability is to make a
person accountable under whose care such incident took place despite his care
or carelessness because such incidents have a huge or sometimes lifelong impact
on lives of people and sometimes no fault on part of defendant does not give
him the way to be released of all the liabilities arising from such horrifying
incident. And these are the incidents where no fault liability, a part of the
law of torts, takes a special and important space in our legal system.
[1] Law of torts,R.K Bhangia,24th
edition.
[2] Ibid.
[3] BBC News, (May 8, 2020) https://www.bbc.com/news/world-asia-india-52586999#:~:text=Indian%20police%20have%20filed%20charges,of%20Visakhapatnam%2C%20Andhra%20Pradesh%20state.
[4] Ibid.
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