2.

1 STRICT LIABILITY: MEANING AND RATIONALE

Strict liability is a general term used to describe forms of liability that do not depend
upon proof of fault. Where a defendant is he d responsible for unforeseeable harm or
where he is liable despite having taken all reasonable care to avoid foreseeable harm,
then liability can be said to be strict. The distinction between fault and strict liability is no
rigid. Strict duties may range from almost absolute liability, allowing virtually no
defence, to duties which amount to little more than a high standard of care in negligence.

There is no obvious unity of purpose in the areas o1 social conduct that are subjected to
stricter duties. If there is a discernible theme it is that people who engage in particularly
hazardous activities should bear the burden of greater risk of damage, or the risk of
greater damage, that their activities generate. Strict liability focuses on the nature of the
defendant's activity rather than, as in negligence, the way in which it is carried on, but it
should not be assumed that strict liability is synonymous with ‘liability without fault’. An
activity which creates an unusual or exceptional risk may be justified by its social utility,
and therefore may be reasonable on a negligence theory, but the defendant has imposed
this risk on others for his own purpose and so his conduct is not necessarily blameless.
This idea of the allocation of the burden of the risk to the person who created it is
sometimes used as a justification for strict liability. But this usually rests on certain
unstated assuinpiions about causation. For example, if a housing estate is built alongside
an existing munitions factory, which created the risk of damage to the houses from an
explosion. Moreover, negligence is also concemed with risk allocation. The ‘risk’ of
suffering a non-neg)igent injury is the victim's whereas the risk of causing harm by
carelessness is the aetor's. Thus analysis in terms où risk allocation does not explain why
particular kinds of risk are dealt with on the basis of fault, whereas others merit strict
liability. Appeals to the notion of extra-hazardous activities appear somewhal specious
when it is recalled that in practical terms drivîng a inotor vehicle is on.e of the most risky
activities that the vast majority of the population ever undertakes, and yet it is the
paradigm of a negligence action (consider Spencer [1983] CU 65).

A more plausible explanation of strict liability is that ii operates as a loss distribution

mechanism. Accidentel damage arising from the materiaiization of a risk inherent in a
particular activity is paid for by the person or enterprise carrying on the activity. That
person is in the best position to spread the ross via insurance and higher prices for the
products ti:at the activity creates, and so the true social cost of ‘hcse prcciucts is borne by
the consiñ ners in sriiai! amô unts. \ iciiricius’ liability is a goö d exempte of th:›s process. -
However, fault liability can be regard•d as a loss distribution mechanism too, at least in
conjunction with insurance against liability. The only difference between strict and fault e,
liability in this respect is the question of which fosses are distributed — under fault
liability non-negligent damage lies where it falls, whereas under strict liability accidental
harm is distributed.

The rule of strict liability owes its origin to the case of fiJ/ands v. Fletcher. The facts of
1his case wei e os folio we. B, a iiiillo wiici , ci iipluycd iiidcpciidcid coum ucttH s, who ever c
apparently corripeter›t, to construct a reservoir on his land to provide water for his mill. In

43
 In the House ofLords

Lord Cairns, LC
The reservoir of the defendants was constructed by them through the agency and
inspection of an engineer and contractor. Personally, the defendants appears to have taken
no part in the works, or to have been aware of any want of security connected with them.
As regards the engineer and the contractor, we must take it from the case that they did not
exercise, as far as they were concerned, that reasonable care and caution which they
might have exercised, taking notice, as th•y appear to have taken notice, of the vertical
shafts filled up in the manner which I have mentioned. However, my Lords, when the
reservoir was constructed, and filled, or partly filled, with water, the weight of the water
bearing upon the disused and imperfectly filled-up vertical shafts, broke through those
shafts. The water passed down :hem and into to the horizontal workings under the close
of the defendants it passed on into the workings under the close of the plaintiff, and
flooded his mine causing considerable damage, for which this action was brought.

The Court of Exchequer.. . was of opinion that the plaintiff had established no cause of
action. The Court of Exchequer Chamber, before which an appeal from the judgment was
argued, was of a contrary opinion, and the judges there unanimously arrived at the
có nclusion that there was a cause of action, and that the plaintiff was entitled to damages.

My Lords, the principles on which this case must be determined appear to me to b‘e
extremely simple. The defendants, treating them as the owners or occupiers of the close
on which the reservoir was constructed, might lawfully have used that close for any
purpose for which it might in the or‹iinary course of the enjoyment of land be used; and
if, in what I may term the natural user of that land, th•re had been any accumulation of
water, either on the surface or underground, and if, by the operation of the laws of nature,
that accumulation of water had passed off into the close occupied by the plaintiff, the
plaintiff could not have complained that that r•.sult had taken place. If he had desired to
guard himself against it, it would have lain upon him to have done so, by leaving, or by
interpGsing, some barrier between his close and the close of the derendants in order to
have prevented that operation of the laws of nature.

On the other hand if the defendants, not stopping at the natural use of their close, had
desircd to use it for any purpose which I may term a ‘non-natural use’, for the purpose of
introducing into thee clcse thai which in its natural ccci.tion was not in or upon it, for the
-purpose of-intzoducingmatereither above or b•low grourrci in than.tit.Ws and in a-manner-
not the result of any work or operation on or under ihe 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 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.

45
 The same result is a ved at on the principle referred to by Blackburn J. in his judgment
in the Court of Exchequer Chamber, where he states the opinion of that court as to the
law in these words:
“We think that the rule of law is, that the person who, for his own purposes,
brinp•s on his land and collects and keeps there anything likely to do mischief if it
escapes, must keep it in at his peril; and if he does no do so, is prima facie
answerable for aIl the damage which is the natural consequence of its escape. He
can excuse himself by showing that the escape was owing to the plaintiffs
default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as
nothing of this sort exists here, it is unnecessary to inquire what
excuse would be sufficient. The general rule, as above stated, seems on principle
just. The person whose grass or com is eaten down by the escaping cattle of his
neighbour, or whose mine is flooded by the water from his neighbour's reservoir,
or whose celler is invaded by the filth of his neighbour's privy, or w'hose
habitation is made unhealthy by the fumes and noisome vapours of his
neighbour's alkali works, is damnified without any fault of his own; and it seems
but reasonable and just that the neighbour who iias brought something on his own
property (which was not naturally there), harmless to others so long as it is
confined to his own property, but whicii he knows, will be mischievous if it gets
on his neighbour's should be obliged to make good the damage which ensues if he
does not succeed in confining it to his own property. But for his act in bringing it
there no mischief could have accrued, and it seems but just that he should at his
peril keep it there, so that no mischief may accrue, or answer for the natural and
anticipated consequence. And upon authority this we think is established to be the
law, whether the things so brought be beasts, or water, or fi lth, or stenches.”

My Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your
Lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the
present appeal be dismissed with costs.

In the Court of Exchequer Chamber ( 1566) LR l Ex. 265

Blackburn, J
The plaintiff, though free from all blarfl'e on his part, must bear the loss, unless he can
establish that it was the consequence of some default for which the defendants are
responsible. The question of law therefore arises, what is the obligation which the law
-casts on•a• person-who, l•ke iii• defendants; lawfii lly brings on iris-land mmetliin wr:Fch,. _
though harmless whilst it remains ther•, will naturally do rriischief if it escape out his
land. It is agreed on all hands that he must take care to keep in that which hc has brought
on the land and keeps there, in order that it may not escape and damage his neighbours,
but the question arises whether the duty which the law casts upon him, under such
circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the
Court of Exchequer have thought, merely a duty to take all reasonable and prudent
precautions, in order to keep it in, but no more. If the first be the law, the person who has
brought on his land and kept there .something dangerous, and failed to keep it in, is

responsible for all the natural consequences of its escape. If the second be the limit of his
a

g 46
 duty, he would no be answerable except on proof on negligence, and consequently would
not be answerable for escape arising from any latent defect which ordinary prudence and
skill could not detect.

Supposing the second to be the correct view of the law, a further question arises
subsidiary to the first, viz., whether the defendants are not so far identified with the
contractors whom they employed, as to be responsible for the consequences of their want
of care and skill in making the reservoir in fact insufficient with reference to the old
shafts, of the existence of which they were aware, though they had not ascertained where
the shafts went to.

We think that the true rule of law is f ere follows the passage cited by Lord Cairns, LC
above]. . .

The view which we take of the first point renders it unnecessary to consider whether thc
defendants would or would not be responsible for the want of care and skill in the persons
employed by them, under the circumstances stated in the case.

We are of opinion that the plaintiff is entitled to recover....

Mason v. Levy Auto Parts ofEngland Ltd.

[1967] 2 AH ER 62

The defendants kept in their yard large stacks of wooden cases containing greased or
wrapped machinery, as well as quantities of petroleum, acetylene and paint. At noon one
fine day a fire bro'xe out for an unknown reason, and could not be controlled before it had
done oamage to the plaintiffs adjoining garden.

McKenna, 3
Has the plaintiff proved that the defendants were negligent, which is his second point? Or
has brought the case within Rylands v. Fletcher or any similar principle of liability,
which is his third point?

In his particulars the plaintiff ciiarges the defendants with providing no adequate means
of detecting or extinguishin.g fire. i do no: ti ink that either of these charges was proved.
The defendants v'erS ur.derno doty‘to riiaiiioin'a constant ldokiidt for fire, and this fire -
was in any case detected at an early state by the defendants’ workmen. The appliances
recommended by the fire brigade had been provided, and if it proved impossible to
control or extinguish the fire by these means that is not the fault of the defendants for
failing to provide more or better equipment. Such appliances are anyhow, intended only
as first aid. That they were ineffective to control or extinguish this fire is no proof of any
culpable failure to provide more adequate equipment. Then it is said that the crates were
so closely stacked “that there was no reasonable access between them for fire-fighting
purposes.” ’1’hat was true of some parts o1" the yard, but 1 have no reason to suppose that if
it had been otherwise, this fire would have been co atrolled.

47
 As I see it, the plaintiffs real case against the defendants is in the allegation that they “so
used their land by cluttering it with combustible material closely packed that the
plaintiffs land was endangered.” That, like the plaintiffs other allegations, is put against
the defendants in alternative ways, including negligence, nuisance, allowing a dangerous
thing, namely, fire, to escape from their land, and as a failure so to use their land as not to
harm the plaintit‘f.

1 shall consider it under the two last of these heads, beginning, as one must, with
Musgrave v. Pandelis ( 1919) 2 KB 43 | where petrol in the carburetor of the defendants' garaged car
ignited when his servant started il, but no harm would have been done to the
plaintiffs flat above if the servant had turned off the petrol flow from the tank as he
should} Bankes. LJ reasoned thus: (a) there were at common law three separate heads of
liability for damage dor.• by fire originating on a man's property, “(i) for the mere escape
of the fire; (Ji) if the fire was caused by the negligence of himself or his servants, or by
his own wilful act; (iii) on thc principle of fivf«orfs v. Fletcher .” (b) Filliter v. Phippard
decided that the statute did not cover the second case. (c) “Wliy,” Bankers, LJ asked, “if
tha: is the law as to the second head of liability, should ii be otherwise as to the third
tread, the liability on the principle of Rylands v. Fletcher?” The answer, I would have
said with respect, is obvious enough. There were not three heads of liability at common
law but only one. A person from whose land a fire escaped was held liable to his
neighbour unless he could prove that it had started or spread by the act of a stranger or of
God.
What then, is the principle? As Romer, LJ in Co//in›rood's case pointed out [1936] 3 All
ER 200), it cannot be exactly that of Rylan.ds v. Fletcher. A defendant is not held liable
under Rylands v. Fletcher unless two conditions are satisfied (i) that he has brought
something on to his land likely to do mischief if it escapes, which has in fact escaped, and
(ii) that those things happened in the course o f some non-natural user of the land. But in
3fusgruve’s case the car had no escaped from the land, neither had the petrol in its tank.
The principle must be, Romer, LV said, the wider one on. which Rylands v. Fletcher itself
was based .
If for the rule in 7ifusgrov6’s case to apply, there eeed be no escape of anything brought
on to the defendant's land, what must be proved against him? There is, it seems to me, a

J
choice of alternatives. The first would require the plaintiff to prove (1) that the defendant
had brought something on to his land !ikety to do mischief if it escaped; (2) that he had
-done so in :he course of-a non*natursl us•qr ot I'ne land; and (3) thai ltte ihin !iad ignited _
and that the fire had spread. The second wou1‹i be to hold the defendar:t i!able if (1) he
brought on to his land things iikely tc catch fir•, ant kept them there in such conditions
that if they did ignite the fire would be likely Io spread to the plaintiffs land; (2) he did
so in the course of some non-natural use; and (3) the things ignite and the fire spread. The
second test is, I think, the more reasonable one. It makes the likelihood of damage if the
thing escapes a criterion of liability, when the thing has not in fact escaped but has caught
fire, would not be very sensible.

48
 So I purpose to apply the second test, asking myself the two questions (i) did the
defendants in this case bring to their land things likely to catch fire, and keep them there
in such conditions that if they did ignite the fire would be likely to spread to the
plaintiffs land? If so, (ii) did the defendants do these things in the course of some non-
r.atural user of the land? 1 have no difficulty in answering “yes” to the first of those
questions, but the second is more troublesome. I feel the difficulty which any judge feel
in deciding what is a non-natural user of the land, and prepared myself for answering the
question by reading what is said about it in Salmond on Torts (14th ed., 1965), pp. 450-
452, and in Winfield on Torts (7" ed., 1963), pp. 449-452. Thus conditioned. I would say
that the defendants use of their land in the way descñ bed earlier in this judgment was
non-natural. In saying that, I have regard (i) to the quantities of combustible material
which the defendants brought on their land; (ii) to the way in which they stored them; and
(iii) to the character of the neighbourhood

Cambridge Water Co. v. Eastern Countries Leather

(1994] 1 All ER 53

Quantities of solvent, used by the defendants in their leather tanning business, were
allowed to spill on the floor of the defendants' factory. The solvent seeped through the
f1oi›r o* the factory and contaminated the natural underground water, which the plaintiff
water company used to supply to the people. Plaintiff claimed damages.

Lord Goff
Foreseeability ofdamage under the rule in Rylands v. Fletcher
It is against this background that I turn to the submission advanced by ECL before your
Lordships that there is a similar prerequisite of recovery of damages under the rule in
Rylands v. Fletcher.

I start with the judgment of Blackburn, I in Fletcher v. Rylands itself. In that passage
Blackburn, I spoke of anything likely to do mischief if it escapes; and later he spoke of
‘something’ which he knows to be mischievous if it gets on to his neighbour's
(property], and the liability to answer for the natural and anticipated consequences.
Furthermore, time and again he spoke of the strict liability imposed upon the defendant as
being that he .must keep the thing in at his peril; and when referring to liability in actions
for damage occ2sioned by animals, he referred to the established principle ‘that it is quite
immaterial whether the escape is by ñ egligénce or not’. the general tenor of hiss
staiement of principle is, therefore, that knowledge, or at least foreseeability of the risk, is
a prerequisite of the recovery of damages under the principle; but that the principle is one
of strict liability in the sense that the defendant may be held liable notwithstanding that
he has exercised all due care to prevent the escape from occurring.

The point is one on which academic opinion appears to be divided: cf. Salmond and
Heuston on Tons (20'h edn, 1992) pp. 324-325, which favours the prerequisite of
foreseeability, and Clei'k and Liiidsell vn Torls (16“ cdn, 1989) para 2.5-f)9, which rakes
n dil1fii'cnt view. Howe ver, guile apart from the indications to be dcri vcd from the

49
 are statement to the effect that anyone who collects the dangerous thing and has control
of it at the time of the escape would be liable, even when it is being carried on the
highway and escapes therefrom. A landowner who is not in occupation of the land when
the thing escapes is probably liable if he has authorized the accumulation. The absence of
any requirement tihat the defendant should have an interest in the land on which the thing
is accumulated would seem to be consistent witfi the law of nuisance, despite statements
in Read v. Lyons about the duties of neighbouring occupiers.

Personal injury
Cases which have held or assumed that Rylands v. Fletcher is applicable to personal
injuries may have ignored the requirement of landholding status, but it is possible that an
adjoining occupier might suffer personal injury, in which case the question of the
applicability of the rule to personal injuries would have to be directly addressed. Again
the relationship with nuisance is relevant and the strong indications in Hunter v. Canary
Wharfthnt such losses fall outside the scope of that tort indicate that the result would now
be reached under Rylaiids v. Fletcher.

Non-natural user
We have already noted that Blackburn, I in the Court of Exchequer Chamber made no
mention of this requirement. He did, however, make it plain that the principle he siated
applied oniy to things which the defendant collected for his own purposes. Hence, he
cannot be liable under th• rule merely for permitting a spontaneous accumulation (for
example, of water, vegetation or birds) on his land, or even for inducing a spontaneous
accumulation as an undesired by-product of the normal working of the land.

It may well be that Lord Cairns in the House of Lords in Rylands v. Fletcher did not
intend to add anything to Blackburn, I's requirement that the defendant should have
accumulated the dangerous thing by positive action but it is recogniz•d in Cambridge
Woter Co. v. Eastern Counties Leaf her that law has developed so as to give the
expression a meaning which excludes from the rule deliberate accumulations which are
brought about by “ordinary” uses of the land. The most frequently quoted “definition” is
that given by Lord Moulton, speaking for the Privy Council in Richards v. Lothian. “It
must be some special use bringing with it increased danger to others and must not merely
be the ordinary use of the land or such a use as is prouer for the general benefit of the
community.” It would be hopeless to contend that all of the case law on this issue is
reconcilable and the Cambridge Water case may require that we con.wider some of the
=earlier-eaees.-Howev-r;4he folk›wing-propositions-seem to represent-tire-prmer.t•statemf
the law:
• Lord Porter said in Read v. Lyous that in deciding the question of non-natural use
“all the circumstances of time and practice of mankind must be taken into
consideration so that what may be regarded as dangerous or non-natural may vary
according to the circumstances”. For this reason what may seem extraordinary to
one generation may seem ordinary to its successor. At the time of the First World
War the Gniirt of Appeal held that keeping a motor car in a garage with petrol in a
tank was a Hun-natural use of laird, a decision which may well have been dubious

53
 main application of the principle of implied consent is found in cases where different
floors in the same building are occupied by different persons and the tenant of a lower
floor suffers damage as the result of water escaping from an upper floor.

Comir›on benefit
Where the source of the danger is maintained for the common benefit of the plaintiff and
the defendant, the defendant is not liable for its escape. This is akin to the defence of
consent of the plaintiff, and Bramwell B in Carsiairs v. Taylor treated it as the same
thing. The view that there is a defence of common benera among consumers of a
generally supplied service like gas or electricity seems inconsistent with that case. On
balance, common benefit seems redundant (and indeed misleading) as an independent
defence.

Act of stranger
If the escape was caused by the unforeseeable act of a stranger, the rule does not opply. In
Box v. Jubb the defendant's reservoir overflo'ved partly because of the acts of a
neighbouring reservoir's owner and the defendant escaped liability. The plaintiff also
failed in his claim in Richards v. Lothian where some third person deliberately blocked
up the waste pipe of a lavatory basis in the defendant's premises, thereby flooding the
plainti ffis premises. It has been suggested that the defence is limited to the “mischievous,
deliberate and conscious act of a stranger” and therefore excludes his negligent acts.
However, as Jenkins, LJ pointed out in Perry v. Kendricks Transport Ltd. the basis of the
defence is the absence of any control by the defendant over the acts of a stranger on his
land and therefore, the nature of the stranger's conduct is irrelevant. The onus is on the
defendant to show that the escape was due to the unforeseeable act of a stranger without
any negligence on his own part.

Statutory authority
The rule in Rylands v. Fletcher may be excluded by statute. Whether it is so or not is a
question of construction of the particular statute concerned. In Green v. Chelseci
Waterworks Co., for instance, a main belonging to a water works company, which was
authorized by Parliament to lay the main, burst without any negligence on the part of the
company and the plaintiffs premises were flooded; the company was held not liable.

Act of God
Where the escape is eaused dii ectly by natural causes 'without human interveption in
“circumstances ‘vfiicir-no 4uman-4ö resight-can provide-ugainsi n‹i of-wiiich hunian-----.
prudence is not bound to recognize the possibility”, the defence of act of God applics.
This was recognized by Blackburn in Rylands v. Fletcher itself and was first applied in
Nichols v. Marsland. In this case the defendant for many years had been in possession of
some artificial ornamental lakes formed by damming up a natural stream. An
extraordinary rainfall, “greater and more violent than any, within the memory of
witnesses” broke down the artificial embankments, and the rush of escaping water carried
away four bridges in respect of which damage the plaintiff sued. Judgment was given for
the defcndant; the jury had found that she was iiut iicgligcilt aiid the coui‘t lield that she

55
 ought not :o be liable for an extraordinary act of nature which she could no reasonably
anticipate.

Whether a particular occurrence amounts to an act of God is a question of fact, but the
tendency of the courts nowadays is to restrict the ambit of the defence, not because strict
liability is thought to be desirable but because increased knowledge limits the
unpredictable.

Default of the plaintiff

If the damage is raused solely by the act or default of the plaintiff himself, he has no
remedy. In Rylands v. N/e/cher itself, this was noticed as a defence. So in Pointing v.
Noakes, the plaintiff's horse reached over the defendant's boundary, nibbled some
poisonous tree there and died accordingly, and it was held that the plaintiff could recover
nothing, for the damage was due to the horse's own intrusion and, alternatively, there had
been no escape of the vegetation.

REMOTENESS OF DAMAGE AND STRICT LIABILITY

The defendant under Rylands v. Fletcher cannot be liable ad infinitum and in Blackburn,
J's formulation of the rule he “is prima facie answerable for all the damage which is the
natural consequence of its escape”. The Privy Council in the Wagon Mound {No. I) stated
that their Lordships had not found it necessary to consider the rule in Rylands v. Fletcher
in relation to remoteness of damage; but the Cambridge Water case, though it does not
j speak in terms of remoteness of damage, has the effect that reasonable foreseeability is
the test. There is no very compelling reason, indeed, why foreseeability should not be
") utilized as the test of remoteness in cases where it is irrelevant to the initial determination
of liability: “granted that an escape takes place, albeit unforeseeably, what would a
reasonable man regard as the foreseeable consequences of such an escape?” It will also
be recollected that so many qualifications have been placed upon the decision in the
Wagon Mound (No.1) that the concept of foreseeability is now applied in a very broad
and liberal manner and there is unlikely to be much practical difference between an
inquiry whether a consequence is foreseeable or natural.

IJ INDIAN FORMULATION OF ABSOLUTE LIABILITY PRINCIPLE

Tne indian Supreme Court in Oleum Gas L'eak case declined ‘to appiy F ylands rule and
instead formulated the absolute liability principle, in cononance with the developments in
the modern science and technology (See M C Mehta v. UOI). The principle laid down in
the ins:ant case assumed more importance in the aftermath of Bhopal Gas tragedy, though
it was not applied in the case related with it. [The aspect of non-application of absolute
liability principle in t/CC case will be discussed in detail in Law of Torts — II.] Recently,
the Supreme Court extended the absolute liability principle to the cases of environmental
pollution (scc Indian Council for Environmental Aelf on case).

56
 M C Mehta v. Union oflndia
(1987) I SCC 395

Bhagivati, I
But :vhile the writ petition was pending there w'as escape of oleum gas from one of the
units of Shriram on December 4 and 6, 1985 and applications were filed by the Delhi
Legal Aid and Advice Board and the Delhi Bar Association for award of compensation to
the persons who had suffered harm on account of escape of oleum gas.

31. We must also deal with one other question which was seriously debatcd before us and
that question is as to what is the measure of liability of an enterprise which is engaged in
an hazardous or inherently dangerous industry, if by reason of an accident occurring in
such industry, persons die or are injured. Does the rule in Rylands v. Fletcher apply or is
there any other principle on which the liability can be determined. The rule in Rylands v.
Fletcher was evolved in the year 1866 and it provides that a person who for his own
purposes brings on to his land and collects and keeps there anything likely to do mischief
if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the
damage which is the natural consequence of its escape. The liability under this rule is
strict and it is no defence that the thing escaped without that person's willfiil act, default
or neglect or even that he had no knowledge of iH existence. This rule laid down a
principle of liability that if a person who brings on to his land and collects and keeps
there anything likely to do harm and such thing escapes and does damage to anDther, he
is liable to compensate for the damage caused. Of course, this rule applies only to non-
natural user of the land arid it does not apply to things naturally on the land or where the
escape :•s due to an act of God and an act of a stranger or the default of the person, injured
or where the thing which escapes is present by the consent of the person injured or in
certain cased where there is statutory authority (vide Halsbury’s Laws o}’England, vol. 45
para 1305). Considerable case law has developed in England as to what is natural and
what is non-natural use of land and what are precisely the ci i:cumstnnces in which this
rule may be displaced. But it is not necessary for us to consider these decisions laying
down ihe parameters of this rule because in a modem industrial society wiih highly
developed scientific knowledge and technology where hazardous or inherently dangerous
industries are necessary to carry as part of the developmental programme, this ruie
evol ved in the IS" century at a time when all these developments of science and
technology had not taken place cannot atTord any guidance in evo!ving any standard of p
I iabili ty consistent with the constitutional norms and the needs of the present day
cconmny kndzocNl siruunire.‘We need Tibjeel*.flhibitetl try thisml .ten scot ---- -
i n the context of a totally different kind of economy. Law has to grow in order to satisiJ
the n*eds of the fast changing society and keep abreast with the economic developments
tuking place in the country As new situations arise the law has to be evolved in order to
meet the challenge of such new situations. Law cannot afford to remain static. We have
to evol ve new priticit›les and lay down new norms which would udequately deal with the
nc’.v probleriis which arise in a highly industrialized economy. We carinot allow our
just cial think ink to be constricted by reference to the law as ii prevails in England or for
Inc matter o1’ that in any other foreign eountq• We no longer need tire crutches r›f a
lireit. lc¿z.i! order. We are cert ainI y prepared to receive light from whatever source it

57
 by it for the harm caused on account of an accident in the carrying on of the hazardous or
inherently dangerous activity by the enterprise.

Ind!•an Council for Enviro-Legal Action v. UOI

AIR ! 996 SC 1446

In the instant case there was complaint of environmental pollution caused in Bichhri
village, on account of ‘H’ acid and the discharges from the Sulphuric acid plant of the
respondents.

Judgment
We are convinced that the law stated by this Court in Oleuni Gas Leak case (AIR 1987
SC 1086), is by far the more appropriate Gne apart form the fact that it is binding upon us.
(We have disagreed with the view that the law stated in the said decision is obiter).
According to this rule, once the activity carried on is hazardous or inherently dangerous,
the person carrying on such activity is liable to make good the loss caused to any other
person by his activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the activity carried“
on.

66. Once the law in Olewn Gas 1.eak case is held to be the law applicable, it follows, in
the light of our findings recorded hereinbefore, that respondent Nos. 4 to 8 are absolutely
liable to compensate for the harm caused by them to villagers in the affected area, to the
soil and to the underground water and hence, they are bound to take all necessary

“ measures to remove the sludge and other pollutants.

67. The question of liability of the respondent to defray the costs of remedial measures
can also be looked into from another angle, which has now come to be accepted
universally as a sound principle, viz., the “Polluter Pays” Principle. The polluter pays
principle demands that the financial costs of preventing or remedying damage caused by
pollution should lie with the undertakings which cause the pollution. Under the principle
it is not the role of Government to meet the costs involved in either carrying out remedial
action, because the effect of this would be to shift the financial burden of the pollution
incident to the taxpayer.
. . . ... . - . .................. - . . ........ ......... . ....... ...... .

LEGISLATIVE REACTION TO THE BHOPAL DISASTER

Due to certain reasons, which are quite disputable as well as debatable, the principle of
absolute liability could not be applied in the Bhopal Gas Leak (UCC) case. However, the
Parliament in 1991, with a view to provide immediate relief to members of public in case
of such accidents in future, enacted the Public Liability Insurance Act.
 (2) In any claim for relief under sub-section (1) (hereinafter referred to in this Act as
claim for relief) the claimant shall not be required to plead and establish that the death,
injury or damage in respect of which the claim has been made was due to any wrongful
act, neglect or default of any person.

4. Duty of owner to take out insurance policies. - (1) Every owner shall take out, before he
starts handling any hazardous substance, one or more insurance policies providing for
contracts of insurance whereby he is insured against liability to give relied under sub-
section (1) of section 3:
PFDvfded that any owner handling any hazardous substance immediately before the
commencement of this Act shall take out such insurance policy or policies as soon as
may be and in any case within a period of one year from such commencement.
(2) Every owner shall get the insurance policy, referred to in sub-section (l), renewed
from time to time before the expiry of the period of validity thereof so that the insurance
policies may remain in force throughout the period during which such handling is
continued.

5. Verification and publfCOtiOn o/accidenf by Collector.- Whenever it comes to the notice

of the Collector that an accident has occurred at any place within his jurisdiction, he shall
verify the occurrence of such accident and cause publicity to be given in such manner as
he deems to fit for inviting applications under sub-section (l) of section 6.

6. Application for claim for relief.- (I) An application for claim ror relief may be made-
(a) by the person who has sustained the injury;
(b) by the owner of the property to which the damage has been caused;
(c) where death has resulted from the accident, by all or any of the legal
representatives of the deceased; or
(d) by any agent duly authorized by such person or owner of such property or all or
any of the legal representatives of the deceased, as the case my be;
Provided that where all the !egal representatives of tire deceased have not joined in
any such application for relief, the application shall be made on behalf of or for the
benefit of all the legal representatives of the deceased and the legal representatives
who have not joined shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall i›e made to the Collector and shall be in
such form, contain such particulars and shall be accom.panied by such documents as may
be prescribed.
(€)-No'app!?•cation- for relieR-ha!J be'entertaincd-un1ess’it is macie-w‘itfiin:five years of the-
occurrence of the accident.

[7A. Establishment of Environmental Relief Fund.- (I) The Central Government may, by
notification, establish a fund to be known as the Environmental Relief Fund.
(2) The Relief Fund shall be utilized for paying, in accordance with the provisions of this’
Act and the scheme made under sub-section (3), relief under the award made by the
Collector under section 7 . . .]

61
 8. Provisions as fo olher rights to claim compensation for deafh, etc.- (1) The right to
claim relief under sub-section (1) of section 3 in respect of death of, or injury to, any
person or damage to any property shall be in addition to any other right to claim
compensation in respect thereof under any other law for the time being in force.
(2) Notwithstanding anything contained in sub-section (1), where in respect of death of,
or injury to any person or damage to any property, the owner, liable to give claim for
relief, is also liable to pay compensation under any other law, the amount of such
compensation shall be reduced by the amount of relief paid under this Act.

THE SCHEDULE

(i) Reimbursement of medical expenses incurred to a maximum of Rs. 12,5000 in each

(ii) For fatal accidents the relief will be Rs. 25,000 per person in addition to
reimbursement of medical expenses if any, incurred on the victim up to a maximum of
Rs. 12,500.
(iii) For permanent total or permanent partial disability or other injtlry or sickness, the
j relief will be (a) reimbursement of medical expenses incurred, if any, up to a maximum
of Rs. 12,500 in each case and (b) cash relief on the basis of percentage of disablement as
certified by 2n authorized physician. The relief for total permanent disability will be Rs.
25,000.
(iv) For loss of wages due to temporary partial disability which reduces the earning
) capacity of the victim, there will be a fixed monthly relief not exceeding Rs. 1,000 per
month up to a maximum of 3 months; provided the victims has been hospitalized for a
period exceeding 3 days and is above 16 years of age.
(z) Up to Rs. 6,000, depending on the actual damage, for any damage to private property.

2.2 VICARIOUS LIABILITY

This term does not indicate a distinct tort, but rather a process hy which one person can
be held liable for a recognized tort committed by another. The expression “vicarious
3 liability” signifies the liability which A may incur to C for damage caused to C by the
negligence or other tort of B. The fact that A is liable does not, of course, insulate B
from
liabil iiy, through as a practical matter ii may be unlikely that he will be sued or that
judgmq•nt will.,be enforced ag2qi I him. It i# not yescessary.for vicayious liability to aris•
that A shull 1:ave participaied in as-y way in the cornmissio.o of the ton nor that a ‹iuty’
owed in law by A to C shall have been broken. What is r•o,uired is that A should stand in
a particular relationship to B and that B's tort should be referable in a certain mamaer to
that relationship. The commonest instance of this in modem law is the liability of an
employer for the torts of his servants done in the course of their employment. The
relationship required is the specific one, that arising under a contract of service, and the
tort must be referable to that relationship in the sense that it must have been committed
by the scrvant in the course of his employment.

62
 JUSTI FI CATI ON OF LIAB I LITY

Liability of an employer for the tort of an employee regardless of whether the employer
has been at fault in any way itself is an established part of English law, much mGre firmly
established than it is, for example, in German law. The jurisdiction for making employers
so liable is however not as obvious as it might seem. Employers do not have physical
control over their employees. Employees are not slaves. Furthermore, employers rarely
ask or require employees to act negligently or in some other tortious way so that
employees are rarely ‘authorized’ to commit torts in any ordinary meaning of the word.
What we are here considering is the liability of employers for torts that their employees
committed without asking them.

One explanation of vicarious liability is that it follows from the benefit and burden
principle. Employers take the benefit of the employees work, so that they should take the
burden of the wrongs committed by those employees. But if the employee is heing paid,
why should the employer bear any extra burden? A related explanation is that the
damages that arise in tort cases should count as a cost of the defendant's business. But if
so, why require that the employee has committed a tort in the first place? Why not have
strict liability for all the acts of one's employees regardless of whether the employee at
fault?

Similarly the argument that the employer is in a better position to know or at least to find
out the overall costs of accidents associated with the business proves too much, for,
again, it implies liability without fault for all the harmful consequences of the business,
nol just the ones that result form torts by the employees.

Another justification is that ihe employer is in a better position than anyone else to
encourage employees to be safe. Vicarious liability allegedly provides an incentive where
tort law by itself would nct do sc. The argument is that employees are oflen too poor to
pay damages themselves and so to not bother to worry about the threat of tort actions too
much. All this is possible, but it is not entirely clear either that employees would be little
deterred by the threat of tort actions if employers did not have to pick up the bill, or that
well-insured emp!oyers will be so much rnore deterred than employees. A better version
of this argument is that vicarious liability gives the employer an incentive to discover
which employees are likely to cause harm to others so that the employer can control them
and, i* nec•ssary, sack them. Vicarious liability thus raises the incentives for employees
. .to-b• zafe,Aecause. it *iakes .Lheir-zoos -leper.d in. par* on- b•ingmafe,. and it reduces. trips
overall number of 2cciJents because it tends to remove dangerous people from jobs
where they do harm.

Finally, there are two arguments that do not depend on incentive effects of any kind. The
first is that it is a rule of honour that social superiors should take the blame for whatever
goes wrong in the organizations and households run by those superiors. Thus, the old
name for the rule that employers should pay for the torts of their employees (or, as it
wnuld have been phrased at the time, why masters shou ray fnr flue tnrts nf servants)
wns respoiideai superior. h similar principle used to npply to cai›inct ministcrs, who uscd
to be expected to take the rap for the mistakes of” their civil servants and would resign. As

63
 a principle, it probable sounds very out-of-date now. And it is difficult to see large
companies as the social superiors of anyone. The other reason is simply a deep pocket
argument. Employers are bener off than employees and more likely to have liability
insurance. They are, therefore, in a better position to pay compensation. This is true, but
cannot explain by itself why the law shouid pick on idle particular emp!oyer, as opposed
to the richest employer in town, or the government.

None of these explanations, even the last, is, however, sufficient 4o explain all the aspects
of the present law, and it is difficult not to agree with Lord Pearce when he said:
“The doctrine of vicarious liability has not grown from any very clear, logical or
legal principle but form social convenience and rough justice. The master having
(presumably for his own benefit) employed the servant, and being (presumable)
better able to make good damage which may occasionally result from the
arrangement, is answerable to the world at large for all the torts committed by his
servant within the scope of it.”

LIABILITY OF MASTER

As for the present law, Figure 1 on next page] gives a summary. Assuming that the
employer has not committed a tort personally (for example in the selection of the
employee) and that someone for svhom the employer might be alleged to be responsible
has committed a tort of some kind the first question is whether the person committing the
tort was an employee of the employer. If the answer is yes, we go on to ask whether the
employee committed the tort in the course of employment. If the answer to that question
is yes, the employer is liable. If the answer to the question about th• tortfeasor's status as
an employee was no, assuming that there w'as some kind of contractual relationship
between the tortfeasor and the employer, we then ask whether the situation involved non-
delegable duties of th• employer. If it does, the employer may still be liable, but if not,
not. In addition, if the tort was committed by an employee but not in the course of
employment, the em.ployer may still be liable if the situation involved a non-delegable
duty.
Let us look at each of the question in turn.

HAS TH*:Ef•IPAO.PER COMMITTED A TORT ITSELF?

If the employer is a company, which can only act t.'irough agents, the question of the
employer's committing a tort personally cannot arise in this form. But the same results
usually flow from characterizing the obligations considered here as non-delegable duties.
Employers are under various common law duties to their employees the breach of which
may result in injury to other employees. These duties include the duty to provide a safe
system of work, safe fellow employees, a safe place of work and a safe and effectively
supervised system of work, In these actions hy the injured emplnyees against a human
eiiiployer, no qu•stion vicarious liability need arise. The e.mployer is I iahle directly fhr
his or her own default.

64
 Equally the employer can be liable to non-employees, that is to the rest of the world, for
carelessly choosing someone incompetent to do the work, or not trai.ning them properly.
It does not matter whether the person chosen worked as an employee or as any
independent contractor if the employer was negligent in the first place in cb.oosing that
person.

Has employer
committed a tort sq Employer
itself? L.iab)e

No

Has anyone else committed a tort?

toEmployer
not Liable

Yes No No

Is the tortfeasor an employee

Is tortfeasor
of the employer?
No YesIs
an independent contractor there a
of employer?
non-delegableYes duty? Employer
Liable

Yes

s t e too committed in tlie cout se of empJGyment?

No

Yes

Employer
Liable

FIG URE 1

S 65
 HAS SOMEONE ELSE COMM ITTED A TO RT?

If the employer has not committed a tort, the question, then becomes whether the
employer is liable vicariously for someone else's tort. But note that someone else actually
has to have committed a tort *or which the employer can be held responsible. This inay
seem obvious but it is often forgotten in thc rush to consider more difficult questions such
-) as the meaning of ‘course of employment’. The important point to note is that the
vicarious responsibility of the employer for the too of an employee may be strict, in the
’) sense that the employer cannot escape responsibility by showing that it could not have
foreseen the employee's tort or by showing that it could not reasonably have prevented it,
but that does not diminish the need to show that someone has committed a recognized
tort. If the tort the employee is accused of requires proof of fault, then there must be fault
on the part of the employee before the employer can be vicariously liable. If the
employee could escape liability by proving a defence, the employer escapes too.

IS THE TORTFEASOR AN EMPLOYEE OF THE EM PLOYER?

If there has been a tort by someone else, the next question is whether the tortfeasor is an
employee of the employer. There are two questions within the main question: is the
tortfeasor an employee as opposed to an independent contractor? And, is the employee
this employer's employee as opposed to some other employer's employee?

• Agents and servants

A servant may be defined as any person employed by another to do work for him on the
terms that he, the servant, is to be subject to the control and direction of his employer in
r‹ispect of the manner in which his work is to be done. If we use the term agent to mean
any person employed to do work for another, we may say that agents are of two kinds,
distinguishable as servants and independent contractors. It is for the first kind of agent
only that his employer is responsible under the rule which we are now considering. When
the ageni is an independent contractor, his employer is not, in general, answerable for the
torts either of the contractor himself or of his servants.

Servant distinguished from independent contractor

What then, is the test of this distinction between a servant and an independent contractor?
The distinction is important not only for the doctrine of vicarious liability but also in
relation to the leg.elation governing iax and socia! security benefits and unfair dismissal.
The test is in exercise of a right or conirol over the ag.Int in respect of the manner “in"’
which his work is to be done. A scczant ii an agent who works under the supervision and
direction of his employer; and independent ccntractor is one who is his own master. A
servant is a person engaged to obey his employer's orders from time to time; and
independent contractor is a person engaged to do certain work, but to exercise his own
discretion as to the mode and time of doing it - he is bound by his contract, but not by
his
employer's orders. Thus, my chauffeur .s my servant; and if by negligent driving he runs
over someone in the street, I am responsible. Btit the cabman whom I engage for a
particular jourrie' is no my servant; hc is not under my orders; hc .has made a contract
wlth inc, not that hc will obcy my dircctions. but that hc will drivc me to a ccrtain piacc:

66 '
 if an accident happens by his negligence, he is responsible and not i. So I am responsible
for the domestic servants in my house, but 1 am not responsible for a skilled man whom
I engage to do a certain job in my house - for example, to paint it, or to mend a window.
(Nor, as we shall see, am I responsible to him for the safety of my premises to the same
degree as I am to a servant).

This may be put in another way by drawing a distinction between one employed by a
master under a confraci of service (a servant) and one engaged by a principle under a
contract for services (an indeFendent contractor). “The distinction between a contract for
services and a contract of service can be summarized in this way: In the one case the
master can order or require what is to be done, while in the other case he can not only
order or require what is to be done but how itself it shall be done.” This right of control
has always been accepted as a necessary but not a sufficient, mark of a contract of
service. Other marks of a contract of service are (i) the master's power of selection of his
servant, (ii) the payment of wages or other remuneration, (iii) the master's right of
suspension or dismissal. One should also consider who owns the tools or equipment, and
“what in modem parlance is called economic reality.” To put it in another way, a
contractor is one who is in business on his own account.

Yet it cannot be doubted that a contract of service may exist although one or more of
these elements is absent altogether or present only in an unusual form. In particular it is
now accepted that the degree of control exercised by the employer over the servant is no
longer the decisive factor. Thus, although the right of control is present, the contract may
be some other kind of contract (e.g., one of carriage) if its provisions, taken as a whole,
are inconsistent with its being a contract of service. The mere fact that A has control over
B does not make B the servant of A - otherwise a parent would be responsible for his
child, and a superior servant for his subordinates.

The right of control

One criticism of this distinction between a contract of service and a contract for services
is that :here are many contracts which are undoubtedly contracts of service but in which
the .master does not or cannot control the way in which the work is done: the captain of a
ship and the house surgeon at a hospital are each Under a contract of service but each
would greet with some astonishment a direction from his employer stating how a
particular task was to be performed. Indeed in many cases the employer lacks the
techn.ical ski!! necessary to give such a direction. Or, even through he may have the skill,
he may no: have the time. as would tie-the case in fast-moving modem traffic, even if the
employer were the most skilled of drivers and was sitting beside lits servant. Or, as is so
often the case in industrial accidents, the employer may be a limited company incapable
of controlling anybody except through its own superior servants or agents. Even though it
may be conceded that control is not as determinative as it was once thought, the
distinction is still real. An employer may well be unable or unwilling to give specific
orders to a skilled man, thinking it best to allow him to carry out the task in his own way,
but that will not necessarily relieve the employer from liability. It does not follow that
because in any particular case it has not been found necessary to exercise a paramount
authority that that authority does not exist. As Lord Porter said in Versey Docks and

67
 employees (assistant metrical officer, house surgeon and nurse) of the hospital authority,
each of whom was employed under a contract of service. The fact that these employees
were exercising professional care and skill was held to be no defence.

The following case would show that master is not vicariously liable for, wrongful act of
an independent contractor:
. ................- - - - - - - - - - - -.. -....... - - - - - .. . . - - - - - - - - - - .. . .......-.-

Morgan v. lncorporated Central Council of the Girls Friendly Society

[1936] I All ER 404

Plaintiff was on his way to visit the tenants of offices in a building owned by the
defendants. The door I•ading to the lift was partially open, and the plaintiff thinking that
the lift was there, stepped through the door, fell down. the shaft and was injured. In an
action for damages for the injuries received, the defendants contended that they had
contracted with independent contractors to keep the lift in good working order, and that
they did not know and could not reasonable be expected to know that the lift was out of
order.

Horridge, J
On July 30, 1935, the plaintiff went to these premises, passed through the iiall and the
vestibule, and seeing that the lift door was partially open, stepped into open lift. The
cause of the condition of the lifl was the ncgligence of the Express Lift Co., in not
discovering that the lift was not in order. On the authority of Fairman v. Perpetual
?nvesfmeni Sri/ding Sociey in the House of Lords, it seems that the plaintiff in this case
was a licensee and not a invitee. He was an invitee of the Rrm of architects whose office
he was going to but not an invitee of the landlords, the defendants. I find as a fact that the
light «'as on in the vestibule. That being so, the main defence is that of defence of
independent contractor. I am satisfied that the Express Lift Co. were independent
contractors, and that it was their duty to have discovered this defect. If they were
independent contractors, the relationship of master and servant does not exist between )
defendants and thems•lves, and therefore the defendants are not liable for the acts of the
cò ntractors unless they can bring themselves within any known exceptions. This case is
an ordinary case of an independent contractor. The neg!igence was that of the
independent contractor.

• Eniployee rrifh two eniployers

An employee may have two or more employers at the same time in respect of different
employments. Nobody can have two de jure employers, but he can have a general (de
jure) and a special {de facto) employer. In particular an employer may lend or hire
servant to another person for a certain transaction so that quoad that employment he
becomes the servant of the person to whom he iS so lent, though he remains for other
purpuscs the servant uf the lender. Wlieii a ser vaiit is sent b) his eiiiploycr to do work for

69
"
 another, it is a question depending on the construction of the contract between the general
and the special employer, whose servant he may be. If there is no contract, then it is a
question of fact, depending on the nature of the arrangement and the degree of control
exercised over the servant. When a servant has thus two employers, the responsibility for
a tort committed by him lies exclusively upon the employer for whom he was working
when he did the act complained of. It must lie on one or the other; for the law does not
recognize a several liability in two principals who are unconnected, although it would
certainly simplify the task of the plaintiff if it did, and the normal law relating to joint
tort feasors applied.

In such a case a heavy burden of proof rests on the general or permanent employer to
shift his prima facie responsibility for the negligence of servants employed and paid by
him on to the hirer who for the time being has the advantage of the particular service
rendered. No universal test can be laid down, although it may be helpful to ask whether
the servant was transferred or only the use and benefit of his work. “Who is paymaster,
who can dismiss, how long th.e alternative service lasts, what machinery is employed,
have all to be kept in mind.” If an employer sends out a skilled man to work for another,
the general rule is that he remains the servant of the general employer. The question will
often be answered by asking w!io has the right to control the way in which the work is to
be done. The following case explains the legal position on the instant issue:
. .. ................. . ........... . .. . . ... .

Hersey Docks and Harbour Board v. Coggins & Griffiths (Liverpool) Ltd.
[1946] 2 All ER 345

A firm of” stevedores had hired from the Mersey Docks and Harbour Board the use of a
crane together with its driver to assist in loading a ship lying in the Liverpool docks. The
contrast was subject to the board's regulations, regulation 6 of which contained the
clause: “The drivers so provided shall be the servants of the applicants.” The driver in
question was a skiiled workman engaged and paid by the board, and the board alone had
power to dismiss him. The stevedores directed what operations should be executed by
him, but they had no authority to direct how he should work the crane. Owing to the
negligence of the driver, a checker employed by the forwarding agents who had engaged
the stevedores was injured in the course of his employment. The question to be
determined was whether, in applying the maxim respondent superior, the general
em.p,lo.yers. o. f t.h. e , cran. e- .d' riv‘ e.r’. o. r...t.h.e —h.-..i. r.-e.rs- .‘ we.re liable for his negligence. It
was
con.•nded by me ooard that, under the terms of the conîract oeil eËn'tlie boàrd anti tite
stevcdores, the st•vcdores were liable.

V Simon
As already stated, the board had engaged Newall, and it paid his wages. It alone had
power to dismiss him. On the other hand, Coggins & Griffiths had the immediate direction and control
of the operations to be executed by the crane driver with his crane,
e.g., to pick up and move a piece of cargo from shed to ship. Coggins & Griffiths,
however, Iran no power to direct how the ci aiie di ivci sliuuld wui k the cruiic. The
rnanipii lation of thc controls was a matter for the driver himself. Counsel for the
70
 appellants placed much reliance upon the language of the Mersy Docks and Harbour
Board's Regulations, regulation 6. But when the plaintiff has proved injury caused by the
negligence of Newall, and the question arise who is answerable as superior for such
negligence, this question is not to be determined by any agreement between the owner
and the hirer c-f the crane, but depends on all the circumstances of the case. Even if there
were an agreement between the board and Coggings & Griffiths that, in the event of the
board being held liable for negligent driving of the crane while it is under hire to the
latter, the latter would indemnify the board, this would not in the least affect the right of
“ the plaintiff to recover damages from the board as long as the board is properly to be
regarded as the crane driver's employer.

It is not disputed that the burden of proof rests upon the general or permanent •mployer -
in this case the board - to shift the prima facie responsibility for the negligence of
servants engaged and paid by such employer so that this burden in a particular case may
come to rest on the hirer who for the time being has the advantage of the service
rendered. And, in my opinion, this burden is a heavy one and can only be discharged in
quite exceptional circumstances.

Lord Macmillan
Agreeing as I do with the trial judge and the Court of Appeal, I am of opinion that, on the
facts of the present case, Newall was never so transferred from the service and control of
the board to the service and control of the stevedores as to render the stevedores
answerable for the manner in which he carried on his work of driving the crane. The
stevedores were entitled to tell him where to go, what parcels to lift, and where to take
them, i.e., they could direct him as to what they wanted him to do, but they had no
authority to tell him how he was to handle the crane in doing his work. In driving the
crane, which was the board's property confided to his charge, he was acting as the
servant of the board, not as the servant of the stevedores. It was not in conseo.uence of
any other of the stevedores that he negligently ran down the plaintiff. It was in
consequence of his negligence in driving the crane that is to say, in performing the work
which he was employed by the board to do.

Lord Porter
In determining this question it has to be borne in mind that the employéé’s position is an
important consideration. A contract of service is made between master and man and an
arrangement for the transfer of his services from one master to another can on!y be
effected•witii the employs-'s coment; expressed orñ mplied.’ His position is’determined-by
his contract. No doubt, by finding out what his work is and how he does it and how he
fulfils the task when put to carry out the requirements of an employer other than his own,
one may go some way towards determining the capacity in which he acts, but a change of
employer must always be proved in some way, not presumed.

Not is it legitimate to infer that a change of masters has been effected because a contract
has been made between the two employers declaring whose servant the man employed
xhall he at a particular moment in the criiirse of his general employment by one of the
two. A contract of this kind may of cnursc dctcrminc the liability of the employer* inter

71
 se, but it has on.!y an indirect bearing upon the question - which of them is to be regarded
as master of the workmen on a particular occasion.

Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long
th.e alternative service lasts, what machinery is employed all these questions have to be
kept in mind. The expressions used in any individual case must always be considered in
regard to the subject matter under discussion, but among the many tests suggested. I think
that the most satisfactory by which to ascertain who is the employer at any particular time
is to ask who is entitled to tell the employee the way in which he is to do the work upon
which he is engaged. If someone other than his general employer is authorized to do this,
he will, as a rule, be the person liable for the employee's negligence. But it is not enough
that the task to be performed should be under his control, he must also control the method
”j of performing it. It is true that in most cases ao orders as to how a job should be done are
given or required. The man is left to do his own work in his own work in his own way,
but the ultimate question is not what specific orders, or whether an; specific orders, were
given, but who is entitled to give the orders as to how the work should be done. Where a
man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to
infer that the general employer continues to control the method of performance since it is
his crane and the driver remains responsible to him for its safe keeping.
....... ........ .... ... ............ . .... .. ..... .. ........... .......... . ..... .......

WAS TH E TORT COMMITTED IN THE COURSE OF EMPLOYMENT?

If the court comes to the conclusion that the ‘servant’ committed the tort the next
question arises whether it was committed in the course of employment. Unless the wrong
) done falls within the course of the servant’s employment the employer is not liable. It
may be asked: “How can any wrong be in the course of a servant's employment? No sane
or law-abiding employer ever hires someone to tell li•s, give blows or act carelessly.”
But that is not what course of employment means. A wrong falls within the scope of
employment if it is expressly or impliedly authorized by the employer or is an
unauthorized manner of doing something which is authorized, or is necessarily incidental
to something which the servant is employed to do.
“[A) master.. . is liable even for acts which he has not authorized provided they
are so connected with acts which he has authorized that they may rightly be
regarded as modes — although improper mo‹ics — of doing them. In other words, a
master is.responsible nctmerely.for.what he.authorizes,his servants to do, but also
for the way in which he does it.. .On the oth•r hand, if the unauthorized and
wrongful act of the servant is not so connected with the authorized act as to be
mode of doing it, but is an independent act, the master is not responsible: for in
such a case the servant is not acting in the course of his employment but has
gone
outside of it.”
The problem is how to apply this test. The difference between an unauthorized mode of
doing something authorized and doing something so unconnected with authorize.d acts
that it should count as an independent act is not always obvious. Some fairly clear
landmarks, however, can be erected:

72
 1) Express prohibition of an act is not enough to take it or:tside the test. In Rose v.
Plenty, a milkman took a boy on his round with him in his milk cart despite his
employer's express instruction not to do so. tue mainly to the milkman's negligent
driving the i›oy was injured. The Court of Appeal nevertheless held the employer
vicariously liable. The milkman was still doing his job; he was just doing it very
badly. Similarly in Limpus v. London General Omnibus a bus driver, disobeying an
express instruction from his employer, engaged in racing his bus on the seeet, with
the result that the plaintiff was injured. The employer was held liable. On the oth•r
hand, employees who do other people's jobs are not just acting against instructions
but not doing their job at all, and so there is no vicarious lilability.

Indeed, although there is no consistent authority in favour of saying so, to give an

employee an explicit instruction not to do something is prima facie evidence that
what is prohibited is a wrongful may of doing the job - otherwise why bother to tell
the employee not to do it in the first place? Job descriptions, which define the scope
of the job, are not usually phrased in terms of prohibitions but in terms of positive
instructions and authorizations.

2) There can be vicarious liability even for international torts. Thus even assaults can be
in the course of employment if the employee is just doing his job, for example
protecting his employer's property, in an over-enthusiastic fashion. But fighting with
other employees or customers in work time when the employee is just indulging in
personal quarrels will not be held to be in the course of employment. Even where the
quarrel arose form the way the employee was doing his job, assaults that are
essentially vindications of personal honour are not in the course of employment.
Thus, in Warren v. Henlys Lid. the employee petrol pump attendant wrongly accused
the plaintiff of attempting to drive off without paying. The employee became abusive
so the plaintiff called the police and said he would report the employee to his
employer. The employee then assaulted the plaintiff. The empioyer was not liable.

A similar distinction is that between employment where part of the job is an activity
which forms the basis of the tort and employment which merely gives the employee
the opportunity to co.mmit the ton. Thus, in Heasmans v. Clarity Cleaning there was
no vicarious liability where a cleaner employed by the defendant rrad•. unauthorized
t•lephone calls, and ran up huge bills from the office she was emp!•oyed to clear.. The
Court of-Appeal remarked 4hat she was employed to clean telephones not to make

e,
calls with them.
3) There is no need for the plaintiff to show that the employee's act was for tire
employer's benefit, although if the act was for the employer's benefit it may
overcome doubts about what the employee was doing, especially in cases about
intentional torts.

73
 Carelessness ofservanl

By far the commonest kind of wrong which the servant commits is one due to unlawful
carelessness, whether it be negligence of the kind which is in itself 2 tort, or negligence
which is a possible ingredient in some other tort. It should be noted also that in some torts
intention or negligence is immaterial; the doer is liable either way. In cases of this sort
the employer may well be responsible for conduct of the servant to which no moral blame
attaches. But, assuming that the tort is negligence or that it is one in which inadvertence
is a possible element in its commission, it may still be in the course of employment even
if the servant is not acting strictly in the performance of his duty, provided he is not “on a
frolic of his own.”

Theft by servant

It was at one time the view that if a servant stole gouds, his employer could not be
vicariously liable to their owner on the ground that the act of stealing necessarily took the
servant outside the course of his employment. This view fails to recognize, however, that
the theft by a servant to whom the goods stolen have been entrusted is the dishonest
performance by the servant of what he was employed to do honestly, namely, to take care
of goods; and this is sufficient for 1:•abiiity. In Mot-ris v. C W Martin & Sons £fd., where
some of the older cases were overruled, the plaintiff had sent her fur coat to X to be
’) cleaned, and X with her permission, sent it on to the defendants, who were specialist
cleaners. The defendants handed the coat to their servant, M, for him to clean it, and M
stole the coat. It was held by the Court of Appeal that on these facts the defendants were
liable.

Damage to goods bailed

If the goods have been entrusted by the employer to the care of his servant and the
servant negligently damages them, his employer will be vicariously liable to their ow ner,
) for the servant has done carelessly what he was employed to do carefully, namely, to look
after the goods. For this purpose it mak•s no difference that the servant at the time of his
negligence was using the goods improperly for purposes entirely of his. own, as, for
example, if he uses a car, bailed to his employer and entrusted to his care, for tab.ing his
friends for a ride, and then negligently damages the car ir: an accident.

Cases of fraud raise special problems because of the special character of fraud itself. Of
its very nature, fraud involves the persuasion of the victim, by deception, to part with his
property or in some other way to act to his own detriment and to profit of the person
practicing the fraud. Thus, in Lloyd v. Grace, Smith & Co. the defendants' clerk
fraudulently persuaded the plaintiff to transfer her property to him, and what is significant
for the purposes of vicarious liability is that it was the position in which he had been
placed by the defendants that enabled him to do 1hi9. His acts were within the .scope of

74
 the apparent or ostensible authority with which he had been clothed by the defer:dants
and it is for this reason that they were liable.

EMPLOYER'S INDEMNITY

Vicarious liability being a form of joint l.ability, the provision of the Civil Liability
(Contribution) Act, 1978 [UK] may enable the employer to recover from his servant
some or all of the damages he has had to pay on account of the servant’s tort.
Additionally, however, the employer can in some cases recover damages from his servant
at common law, and so, in effect recoup himself for the damages he has had to pay.

The follo wing judgment shows that when even theft by a servant may be construed as
something done during the course of employment.
.......-. . . - ..... .. - - .. -. -. --- --..- - -- ......- - . - ..... - - . - - - .. - - .....- - - .....- - -.. ....-- -. - -...- - -

Morris v. C W fartin ‹fi Sons Ltd.

[1965] 2 All ER 725

Lord Denning, M R
On Jan. 7, 1962, Mrs. Morris, the plaintiff, sent her long white mink stole to be cleaned.
She sent it to Mr. Beder, a furrier, in Brook Street. He did not do cleaning himself. So he
telephoned to her and offered to send it away to reputable cleaned to be cleaned. He said
that he would send it to the defendants, C W Martin & Sons Ltd., one or le biggest
cleaners in the country. She knew them and left it to Mr. Beder to get it done for her. The
defendants only worked for the trade and not for private individuals. They had issued
printed conditions or trading to Mr. Beder of which he was well aware. The current trade
conditions provided that “goods belonging to customers” on the defendants premises
were held at customers' risk and that the defendants should “not be responsible for loss or
damage however caused”. The conditions Mortimer provident that the defendants should
compensate for loss or damage to the goods during processing by reason of the
defendants' negligence “but not by reason of any other cause whatsoever”.

Mr. Beder got into touch with the defendants, told them he road a iTlink StGle for cleaning
and asked them to collect it. They did so on Jan. 9, 1962. Mr. Beder was țheir customer,
but they no doubt know the fur did not belong to hirn but to his own customer. Whilst the
fur was with the de%nciants it was stolen by one o* th.eir servants narried Morrissey. Ne
was a youthmho had only been'in ir'empîoylttetitWr burt two momh,Motth fi -
rio reason to suspect his honesty. It was MoiTissey's duty to clean :he fur in 2 special
room for cleaning white furs. Morrissey got the key of the room from the foreman. He
should have cleaned it in the machine, locked up the room, and placed the fur ready for
inspection. Instead of doing so, he seems to have wound the fim round hîs body under his
coat: and he managed to leave the premises after the day's work without anyone detecting

Case raises the iinpoi taut question uf liuw far a master is liable for tllcfi ur disliuiicsty by
one of his servants. If the master has himself been at fault in not employing a
trustworthy

75
 keep goods safely and protect them from theft and depredation, he cannot get rid of his
responsibility by delegating his duty to another. If h•. entrusts that duty to his servant, he
is answerable for the way in which the servant conducts himself therein. No matter
whether the servant be negligent, fraudulent, or dishonest, the master is liable. But not
when he is under no such duty.

From all these instances we may deduce the general proposition that when a principal has
in his charge the goods or belongings of another in such circumstances that he is under a
duty to take all reasonable precautions to protect them from theft or depredation, then if
he entrusts thai duty to a servan! or agent, he is answerable for the manner in which that
servant or agent carries out his duty. If the servant or agent is careless so that they are
stolen by a stranger, the master is liable. So also if the servant or agent himself steals
them or makes away with them.

So far I have been dealing with the cases where the owner himself has entrusted the
goods to the defendant. But here it was not the owner, tire plaintiff, who entrusted the fur
to the cleaners. She handed it to Mr. Beder, who was bailee for reward. He in turn, with
her authority, handed it to the cleaners who were sub-bailees for reward. Mr Beder could
clearly himc•elf sue the cleaners for loss of the fur and recover the whole value, unless the
cleaners were protected by some exempting conditions. But can the plaintiff sue the
cleaners direct for the misappropriation by their servant? And i f she does, can she ignore
the exempting conditions?

These are question of the first importance. At one time the owner of goods who bailed
them to another could not sue a third person who had wrongfully lost or damaged or
detained the goods. He could only sue the bailee; and the bailee could sue the third
person. . .. But now an action does lie by the owner direct against the wrongdoer if he has
the right to immediate possession. By which I take it that if the sub-bailment is for
reward, the sub-bailee owes to the owner all the duties of a bailee for reward: and the
owner can sue the sub-bailee direct for loss of or damage to the goods; and the sub-bailee
(unless he is protected by any exempting conditions) is liable unless tie can prove that the ’
loss or damage occurred without his fault or thet of his servants. So the plaintiff can sue
the defendants direct for the loss of the goods by the misappropriation by their servant
anci the cleaners are liable unless they are protected by the exempting conditions.

No:•z comes the ques:ion: Can defendants reiy, as against the n!aintitf, on tire exempting
-conditions•aithoug.h-there nas-no tracHirrciiyt›etween-4i’iem and»he r T.iereñ uc
_ to be said on each side. On the one hand, it is hard cn
tire plaintiff if h•r just claim is defeated by exempting conditions of which she knew nothing
and to which she was not a
party. On the other hand, it is hard on the defendants if they are held liable to a greater
responsibility than they agreed to undertake.

In this case the plaintiff agreed that Mr. Beder should send the fur to the cleaners, and by
so doing I think she impliedly consented to his making a contract for cleaning on the
tcrms usually current in thc trade. But when I come to study the conditions I do not think
that they are sufficient to protect the defendants. We always construe such conditions

77
 strictly. Clause 9 applies only to “goods belcnging to customers”, that is, goods
belonging to Mr. Beder, and not to goods belonging to his customers such as the plaintiff.
The conditions themselves draw a distinction between “customer” and “his own
customer”; .. . Clause 14 only applies to “the loss or damage to the goods during
processing”. Seeing that the conditions do not protect the defendants, I am of opinion that
they are liable for the loss due to the theft by their servant.

LIABILITY OF STATE

Position in UK

Under the general rule at common law no proceeding, civil or criminal, was maintainable
against the monarch in person, for it was said, the courts, being the King's own, could
have no jurisdiction over him. Before the passing of the Crown Proceedings Act, 1947,
the only methods by which redress might be sought against the Crown in the courts were
by way of petition of right, which was depend•nt on the grant of the royal flat; by suits
against the Attorney General for a declaration; or by actions against ministers and
government departments which had been incorporated or declared liable to suit by
statute. The crown enjoyed numerous immunities and privileges, in particular immunity
from liability for damages for torts committed by Crown servants.

The Crown Proceedings Act, 1947 substantially altered both the procedure to be followed
in civil proceedings by and against the Crown and the substantive law governing the
rights and liabilities of the Crown. Section 2(I) of the Act provides:
“Subject to the provisions of this Act, the Crown shall be subject to all those
liabi Jities in tort to which, if it were a person of full age and capacity, it would be
subject:-
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of tfiose duties which a person owes to his servants or
agents at common law by reason of being their employer; and
(c) in respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property:
Provided that no proceeding shall lie against the Crown by virtue of paragraph (a) of
this sub-sec.tics in respect of any or omission of a servant or agent of the Crown
unless the act or omission would, apart from the provision of this Act, have given rise

In general, the Crown is subject to liability in tort in respect of Her Majesty's govcrnment
in the United Kingdom to the same extent as a private individual of full age and
capacity.

The provisions of the above Act enabling civil proceedings to be taken against the Crown
are, however, subject to certain express limitations. Nothing in Part I of the Act is to
extinguish or abridge any powers or authorities which, if the Act had not been passed,
would have been cxercisablc by virtue of the prerogative of the Crown, or any powers or
authorities conferred on the Crown by any statute, and, in particular, nothing in Pnrt I is

78
 to extinguish or abridge any powers or authorities exercisable by the Crown, whether in
time of peace or of war, for the purpose of the defence of the realm or of training or
iriaintaining the efficiency of any of the armed forces of the Crown.

No proceedings lie against the Crown for the tiiris committ•d by servants or agents in
respect of an act or omission of a Crown servant or agent unless that act or omission
would found an action in tort against him, and no proceedings lie under any of these
provisions in respect of anything done or omitted by a person in the discharge ofjudicial
responsibilities, or in respect of any act, neglect or default of any offic•r of the Crown,
unless appointed directly or indirectly by the Crown and paid wholly out of public funds.
There are also restrictions on proceedings against the Crown in tort in respect of death or
p•rsonal injury caused to or by a member of ihe armed forces of the Crown.

Position in USA

The state, as sovereign, is generally regarded as immune from liability and suit in its
own courts or in any other court without its consent and permission. Accordingly, when
the state's acts or omissions, or those of its officers, agents, employees, departments,
agencies, and other instrumentalities, give rise to potential tort liability, a tort action may
not be maintained against the state in its own courts, whether the action is brought by its
own citizens, the citizens of another state, or the citizens of a foreign state, unless the
state by statute has consented to be sued in tort, has otherwise waived its immunity or
been estopped to raised the defence, has lost its immunity by judicial abrogation of the
doctrin, or has engaged in activities or functions beyond the scope of its tort immunity.
This view is generally in accord with the Restatement. However, the doctrine of
sovereign immunity from suit for torts is disfavored, and subject to a steady movement
away from immunity.

The doctrine of stat• sovereign immunity from tort liability has been considered inherent
in the nature of a sovereignty, as implicitly recognized in the Eleventh Amendment to the
United States Constitution, which broadly grants states immunity from suit in federal
courts. Traditionally, sovereign immunity form tort liability was viewed as a rule of
social policy serving to protect the state from burdensome interference in the
perfoniiance or its governmental functions and to protect the state's control over its
funds, property, and instrumentaiit:es. Am.o*.g the mu!tit›.!de of p:irposes p•arportedly
- - served were-those -of-protecting-H•.-pubhc-purse,• providing-for•-smooth• ratio ... _._ .
government, eliminating public inconvenience and danger that might spring from
officials being fearful to act, assuring that citizens would be willing to take public jobs,
and preventing citizens from improperly influencing the conduct of government through G”
the threat or use of vexatious, litigation.

Judicial abrogation or limitation of immunity

The courts of some states have abrogated or limited the otherwise application common
low doctrine of stote sovereign immunity from tort liability. In judicially nbrogoting or
modifying the rule of state sovereign immunity from tort liability, the courts have

79
 described the doctrine as a principle of law uniformly criticized and no longer to be
tolerated, since the plaintifPs opportunity for justice should not depend, irrationally, on
J the identity of the defendant rather than on the nature of his injury or the act which
caused it. In short, a doctrine founded on the adage. “Tb.e King can do no wrong” has no
j
place in modem tort law. Thus, the doctrine has ö een viewed as unfcunded ana without
support in the justifications traditionally advanced for it, with courts observing that
govemmental responsibility is needed more in modem times because few aspects of
private l i fe are untouched by govemment, that the doctrine no longer meets the needs of
the times, that it is archaic, outmoded, and should be changed, that it is unjust, outmoded,
and illogical, that it tends toward govemment irresponsibility, that it is inconsistent with
the proposition that govei‘nment, in the American system, is not all powerful, that it is an
uù necessary exception to the state's constitutionally expressed policy favoring a legal
remedy for wrongs, that it is plainly unjust to refuse relief to persons injured by the
”j to defend the refusal as fair, and that there
vzrong conduct of the state, that no one seems
has been a steady movement away from immunity and discrediting it. In sum, courts have
rejected the public policy argument that it is better that the individual bear a loss than that
the public should suffer an inconvenience.

Position in India

Unlike the English Crown Proceedings Act, we do not have any statutory provision
mentioning the liability of the State of India. The position of State liability, as stated in
Article 300 of the Constitution of India, is as under:
“The Government of India may sue and be sued by the name of Union of India
and the Government of a State may sue or be sued by the name of the State and
may, subject to any provision which may be made by Act of Parliament or the
Legislature of such State enacted by virtue of power conferred by this
Constitution, sue or be sued in relation to their respective affairs in the like cases
as the Dominion of India and the corresponding Prcvinces or the corresponding
In.dian States might have sued if this constitution had not been enacted.”

Article 300 thus proVides that the Union of lndia and the States are juristic persons for the
purpose of suit or proceedings. Although the Union of inö ia and State Government can
sue and be sued but th• circü mstances under which that can be done have not been
mentioned. According io Article 300 the Union of India and the State Government can
sue or be sued in the like cases as the Dominiori of India and the corresponding Indian
States high hzvw sued or-been sucer ü H?lie Corrstitutit3n' ilad •0Gt bec- eiiacted.. Siheu
position prevailing befor• the commencement of the Crinsiitut:• ri, tlier•foi e, remai.ns
unchanged through the Parliament and the State Legislature have been empowered to
pass laws to change the position.

To know the present position as regards the liability of the State for tortious acts we have
to go back to the pre-Constitution days. For that we refer to Section 176 of the
Government of India Act, 1935. That Act, like the present Constitution, does not give the
circumstances of the Goveniment’s liability but recognizes the position prevail ing before
the passing of that Act. We find a similar position in Section 32 of the Government of

80
 India Act, 1915 and ultimately we refer to the Government o* India Act, 1858. Section 65
of the 1858 Act provides as under:
“The Secretary of State in Council shall and may sue and be sued as well in India
as in England by the name of the Secretary of State: Council as a body corporate
and all persons and bodies politic shall, an‹i may have and take the same suits,
remedies and proceedings, legal and equitable, against the Secretary of State in
Council of lndia as they could have done against the East India Company.”

Therefore, to know whether the State is liable for a particular act or not we have to find
the position of the East Indian Company prior to 1858. An important case in this
connection is P & O Steam Navigation Co. v. Secretary ofstate for India. In that case,
the plaintiffs servant was traveling in a horse driven carriage and was passing by the
Kidderpore dockyard :n Calcutta, which is the government property. Due to negligence
on the part of the defendant's servants, a heavy piece of iron, which they were carrying
for the repair of a steamer, fell and its clang frightened the horse. The horse rushed
forward against the iron and was injured. The plaintiff filed a suit against the Secretary of
State for India in Council for ihe damage which was caused due to the negligence of the
servants employed by the Government of India. The Court tried to look to the liability of
the East India Company. A distinction was drawn between the sovereign and non-
sovereign functions of the East India Company. It was held that if the act was done in the
exercise of sovereign functions, the East India Company would not have been liable, but
if the function was a non-sovereign one, i.e., which could have been performed by a
private individual without any delegation of power by the Government, the Company
would have been liable. Maintenance of the dockyard was considered to be a non-
sovereign function and as sucii, the Gcvernment was held liable.

According to Peacock, CJ:

“The East India Company were a Company to whom sovereign pow'ers were
delegated, and who traded on their own account and for their own benefit and
were engaged in transactions partly for the purpose of Government and partly on
their own account, which without any delegation of sovereign rights might be
carried on by priva:e individuals. There is a great and clear distinction between
acts done in exercise of what are usually termed sovereign powers and acts done
in the conduct of undertakings which might be carried on by private individuals
without having such powers delegated to them. . . . But where the act is done, or a
contract is entereci into, in. th• cxercise of powers usually called sovereign powers,
- - by - which w mean 'powers-which cannot be - lawfiilly -exercised except by. a.. ... .
sovereign or pri•zaie individual delegated by a sovereign to exercise their, no
action will lie.”

On the other hand, there is another set of authorities according to which the State is liable
for the torts of its servants except when an act done is an ‘act of State’. ‘Act of State’ is a
defence which the State cannot have against its own subjects. According to this view,
therefore, the State is liable towards its own subjects just like an ordinary employer. One
of the authorities for this poinl of view is the case of the .Frere.tary rif.Simr for India v.
Hori BhanJi wherein the position was explained in the following way:

' 81
 “The act of State of which the municipal courts of British India are debarred from
taking cognizance, are acts done in the exercise of sovereign powers which do not
profess to be justified by municipal law... Where an act complained of is
professedly done under the sanction of municipal law, and in the exercise of
power s conferred by that law, the fact that it is done by the sovereign powers is
not an act which could possibly be done by a private individual, does not oust the
jurisdiction of the civil court.”

In Vidyawati v. Lokuitial the plaintiffs husband died afler being knocked dou'n by a
Government jeep car which was driven rashly and negligently by an employee of Staie of
Rajasthan. At the time of the accident the car was being taken from the workshop to the
Collector's bungalow for the Collector's use. In an action against the State of Rajasthan,
the State was held liable. On appeal the Supreme Court confirmed the decision of the
High Court and endorsed the view expressed by it. The Court observed:
ț “In this connection it has to be remembered that under the Constitution we have
established a welfare State, whose functions are not confined only to maintaining
law and order, but extend to engaging in all activities including industry, public
transport . . In so far as the State activities have such wide ramifications
involving not only the use of sovereign powers but also it powers as employers in
so many public sectors, it is too much to claim that the State should be immune
from the consequences of tortuous acts of its employees committed in the course
of their employme.nt as such”

; Although the maintenance of the army is a sovereign function but this does not
necessarily mean that the State will be immune from liability for any tortuous act
committed by the army personnel. Thus, there is no hard and fast rule to distinguish
sovereign and non-sovereign functions but a review of judicial trend could be of some
help in this regard.
. ... ... ..................... ... ..................................................

Kasturilal v. State of UP
(1965) l SCR 375

Gajendragadkar, CJ
The short question of law which arises in this appeal is whether the re.spondent, the State
of Uttar Pradesh, is liab!•. to compensate tête appellant, M/s. Kasturilal Ralia Ram lain for
t*• loss cuused io it by td riegtigerrcemf*he Ç0!ice officers'ernployed *y the respondent- • - -
This o,uestion arises in this way. The app•llant is a firm wh.ch deais in bullion a.nd other
goods at Amritsar. It was duly istered under the Indian Partnership Act. Ralia Ram
was one of its partners. On the September 1947 Ralia Ram arrived at Meerut by the
Frontier Mail about midnight. His object in going to Meerut was to sell gold, silver and
other goods in the Meerut market. Whilst he was passing through the Chaupla Bazaar
with this object, he was taken into custody by three police constables. His belongings
were then searched and he was taken to the Kotwali Police Station. He was detained in
the police lock-up there and his belongings which consisted of gold, weighing 103 tolas 6
mashas and l ratli, and sil ver weighing 2 maunds and 6 seers, wcrc seized from him

82
 and kept in police custody. On the 21“ September 1947 he was released on bail, and some
time thereafter the silver seized from him was returned to him. Ralia Ram then made
repeated demands for the return of the gold which had been seized from trim, and since
he could not recover the gold from the police officers, he filed the present suit against the
respondent in which he claimed a decree that the gol‹i seized from him shoul‹i either be
returned to him, or in the alternative, its value should be ordered to be paid to him.

This claim was resisted by the respondent on several grounds. It was urged that the
respondent was not liable to return either the gold, or to pay its money value. The
respondent alleged that the gold in question had been taken into custody by one
Mohammad Amir, who was then the Head Constable, and it had been kept in the police
Malkhana under his charge. Mohd. Amir, however, misappropriated the gold and fled
away to Pakistan on the 17° October, 1947. He had also misappropriated some other cash
and articles deposited in the Malkhana before he left India. The respondent further
alleged that a case under Section 409 of the Indian Penal Code as well as under Section
29 of the Police Act had been registered against Mohd. Amir, but nothing effective could
be done in respect of the said case because in spite of the best efforts made by the police
department, Mohd. Amir could not be apprehended. Alternatively, it was pleaded by the
respondent that this was not a case of negligence of the police officers, and that even if
negligence was held proved against the said police officers, the respondent State could
not be said to be liable for the loss resulting from such negligence.

On these pleadings, two substantial questions arose between the parties; one was whether
the police officers in question were guilty of negligence in the matter of taking care of the
gold which had been sized from Ralia Ram and the second was whether the respondent
was liable to compensate the appellant for the loss caused to it by the negligence of the
public sein'ants employed by the respondent

Thus considered, there can be no escape from the conclusion that the police officers were
negligent in dealing with Ralia Ram’s property after it was sized from him. Not only was
the property not kept in safe custody in the treasury, but the manner in which it was dealt
with at the Malkhana shows gross negligence on the part of the police officers. A list of
articles seized does not appear to have been made and there is no evidence that they were
weighed either. It is true that the respondent's case is that these goods *'were
misappropriated by Head Constable Mohd. Amir; but that wouid not assist the respondent
in cor:ier.d:Eng tha: :fie manner in which tire seized property was dealt with at the police
station-did root shomgrcss-negligence.

Mr. M S K Sastri for the appellant has argued that once he is able to establish negligence
of the police officers, there should be no difficulty in our decreeing the appellant’s claim
against the respondent, because he urges that in passing a decree against the respondent
in the present case, we would merely be extending the principle recognized by this Court
in State of Rajasthan v. Mst. Vidyawati.

83
 The first decision which is treated as a leading authority on this point was pronounced by
the Supreme Court at Calcutta in 1861 in the case of the Peninsular and Oriental Steam
Navigation Company v. The Secretary ofsiate for India.

it is clear that this case recognizes a material ‹distinction between acts committed by
the servants employeci by the 5tate where such acts are referable to the exercise of
sovereign powers delegated to public servants, and acts committed by public servants
which are not referable to the delegation of any sovereign powers. If a tortious act is
committed by a public servant and it gives rise to a claim for damages, the question to ask
is: was the tortious act CGiTllTlitted by the public servant in discharge of statutory functions
which are referable to, and ultimately based on, the delegation of the sovereign powers of
the State to such public servant? If the answer is in the affirmative, the action for
“y damages for loss caused by such tortious act will not lie. On the other hand, if the tortious
act has been committed by a public servant in discharge of duties assigned io him not by
virtue of the delegation of any sovereign power, an action for damages would lie. In the
present case, the act of negligence was committed by the police officers while dealing
with the property of Ralia lt.am which they had seized in exercise of their statutory
powers. Now, the power to arrest a person, to search him, and to seize property found
with him, are powers conferred on the specified officers by statute and in the last
analysis, they are powers which can be properly characterized as sovereign powers; and
so, there is no difficulty in holding that the act which gave rise to the present claim for
damages ahs been committed by the employer of the respondent during the course of its
employment; but the employment in question being of the category which can claim the
special characteristic of sovereign power, the claim cannot be sustained; and so, we
inevitable hark back to what Chief Justice Peacock decided in 1861 and hold that the
present claim is not sustainable.

Judicial bypass to Kasturilal

j The Supreme Court, in order to dilute the effect of Kasturilal case in the modem time,
though without expressly ovemiling it, developed the principle that the defence of
sovereign immunity' cannot be pleacied in case of violation of Article 21 as it is an
example of constitutional wrong, a public law remedy (see the following post-x‹zrfiirifaf
cases).
. .... . . ..... . .-- - - .. - - - -- -- - ------- - --- - --- - - - -- - - - - - - - -

oalieli v. Comm.issio,ne - ofPolice

(1990) 1 SCC 422

Ray, I
These writ petitions have been filed by the Women's and Civil Rights Organization
known as Saheli, a Women's Resources Centre on behalf of two women Maya Devi and
Kamlesh Kumari who have been residing in one room tenement each on the ground floor
of’ house No. 4t1S/S/AL, Gait No. ?9, Anand f'arbat and were severely beaten up by the

84
 alleged landlord in col usiori with the SHO, Shri Lal Singh and the Police of Anand
Parbat Police Station.

10. It is now apparent from the report dated December 5, 1987 of the Inspector of the
Crime Branch, Delhi as w•ll as the counter-affidavit of the Deputy Commissioner of
Police, Delhi on behalf of the Commissioner of Police, Delhi and also from the fact that
the prosecution has been launched in connection with the death of Naresh, son of
Kamlesh Kumari, showing that Naresh was done to death on account of the beating and
assault by the agency of the sovereign power acting in violation and excess of the power
vested in such agency. The mother of the child, Kamlesh Kumari, in our considered
opinion, is so entitled to get compensation for the death of her son from respondent No.
2, Delhi Administration.

1 1. An action for damages lies for bodily harm which includes battery, assault, false
imprisonment, physical injuries and death. In case of assault, battery and false
imprisonment the damages are at large and represent a solatium for the mental pain,
distress, indignity, loss of liberty and death. As we have held hereinbefore treat the son of
Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Shingh
and as such she is entitled to get the damages for the death of her son. It i.s well settled
now that the State is responsible for the tortious acts of its employees. Respondent No. 2,
Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for
the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal
Singh.

Nilabati Behera v. State of Orrisa •-

(1993) 2 SCC J22

Plaintiffs son was taken into police custody for interrogation. Later on, his dealt body,
with visible signs of injury, was found near the railway track. \Vhen the mother of the
deceased filed a writ petition against the Government for claiming compensation, the ’%
State, inter alia, pleaded the defence of sovereign immunity. The Apex Court, rejecting
all contentions, awarded compensation under Article 21 of the Constitution.

Judgment
lt would, however, be appropriate tn spell oui clearly the principle on wh:ch th•. iiabiiity
cif the State arises inzuch cases' for’pâynrer1Fof c0mpefisation and the-distinction between- - - .-
this liability in private law for paym•.nt of compensation in an action on tort. In may be g
mentioned straightway that award of compensation in a proceeding under Article 32 by
this Court or by the High Court under Article 226 of the Constitution is a remedy e
available in public law, based on strict liability for contravention of fundamental right5 tO
which the principle of sovereign immunity does not apply, even though it may be
available as a defence in private law in an action based on tort. This is a distinction
between the two remedies to be borne in mind which also indicates the basis on which
compensation is awarded in such procecdings. We shall now refer to the earlier decisions
of tilis Court as well as Sume Othcr dccisions beforc furthcr discussion of this principle . . .

85
 18. ‘S overeignty’ and ‘acts of State’ are thus two different concepts. The former vests in
a person of body which is independent and supreme both externally and internally,
whereas latter may be act done by a delegate of sovereign within the limits of power
vested in him which cannot be questioned in a municipal court. The nature of power
which the company enjoyed was delegation of the ‘act of State.’ An exercise of political
power by the State or its delegate does not furnish any cause of action for filing a suit for
damages or compensation against the State for negligence of its officers. Reason is
simple. Suppose there is a war between two countries or there is outbreak of hostilities
between two independent States in course of which a citizen suffers damage. He cannot
sue for recovery of the less in local courts as the jurisdiction to entertain such suit would
be barred as the loss was caused when the State was carrying on its activities which are
politically and even jurisprudentially known as ‘acts of State’. But tliat defence is not
available when the State or its officers act negligently in discharge or their statutory
dirties. Such activities are not acts of State.

23. In the modern sense the distinction between sovereign or non-sovereign power thus,
does not exist. It all depends on the nature of power and manner of its exercise -
Legislative supremacy under the Constitution arises out of constitutional provisions. The
legislature is free to legislate on topics and subjects carved out for it. Similarly, the
executive is free to implement and administer the law. A law made by a legislature may
be bad or may be ultra vires, but since it is an exercise of iegislative po'ser, a person
affected by it may challenge its validity but he cannot approach a court of law for
negligence in making the law. Nor can the Government in exercise of its executive action
be sued for its decision on political or policy matters. It is in public interest that for acts
performed by the State either in its legislative or executive capacity it should not be
answerable in torts. That would be illogical and impractical. It would be in conflict with
even modern notions of sovereignty. One of the tests to detemiine if the legislative or
executive function is sovereign in nature is whether the State is answerable for such
actions in courts of law. For instance, acts such as defence of ihe country, raising armea
forces and maintaining it, making peace or war, foreign affairs, power to acquire and
retain territory, are functions which are indicative of external sovere:•gnty and are
political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court.
to suit under Civil Procedure Code would lie in respect of it. The State is immune from
being sued, as the jurisdiction on the courts in such matter is impliedly barred.

24. But there the immunity ends. No civilized system. can permii an executive to p!ay
- -with the people of-its-country--and Glflifri that it -is entitled -to act •in-any mariner. as .it.is . , .. . .
sovereign. The concept of public interest has changed with structural change in the
society. No legal or political system today can place the State above law as it is unjust .
and unfair for a citizen to be deprived of his property illegally by negligent act of officers fl
of the State without any remedy.

25. In the light of what has been discussed, it can well be said that the East India
Company was not a sovereign body and therefore, the doctrine of sovereign immunity did
nnt apply to the activities carried on hy it in the strict sense. Since it was 2 delegate of the
Crown and the activities permitted under the Charter to be carried on by it werc

' 87
 impressed with poiitical character, the State or its officers on its analogy cannot claim
any immunity for negligence in discharge of their statutory duties under protective covcr
of sovereign immunity. The limited sovereign power enjoyed by the Company could not
be set up as defence in any action of torts in private law by State. Since the liability of the
State even today is same as was of the East India Company, the suit filed by any person
for negligence of officers of the State cannot be dismissed as it was in exercise of
sovereign power. Ratio of Kasturi Lal is available to those rare and limited cases where
the statutory authority acts as a delegate of such function for which it cannot be sued in
court of law. In Kasluri Lal's case tfie property for damages of which the suit was filed
was seized by the police officers w.hile exercising the power of arrest under Section
54( 1)(iv) ofi the Criminal Procedure Code. The power to search and apprehend a suspect
under Criminal Procedure Code is one of the inalienable powers of State. It was probably
for this reason that the principle of sovereign immunity in the conservative sense was
extended by the Court. But the same principle would not be available in large number of
) other activities carried on by the State by enacting a law in its legislative competence.

26. A law may be made to carry out the primary or inalienable functions of the State
Crminal Procedure Code’ is one such law. A search or seizure effected under such law
could be taken to be an exercise of power which may be in domain ef inalienable
function. Whether the authority to whom this power is delegated is liable for negligence
in discharge of duties while performing such functions is a different matter. But when
similar powers are conferred under other statute as incidental or ancillary power to carry
out the purpose and objective of the Act, then it being an exercise of such State function
which is not primary or inalienable an officer acting negligently is liable personally and
the State vicariously. Maintenance of law and order or repression of crime may be
inalienable function, for proper exercise of which the State may enact a law and may
delegate its functions, the violation of which may not be sueable in torts, unless it
trenches into arm encroaches on the fundamental rights of l jfe and liberty guaranteed by
‘) the Const:tution. But that principle would not be attracted where similar powers are
conferred on officers who exercise statutory powers which are otherwise than sovereign
powers as understood in the modem sense. The Essential Commodities Act deals with
persons indulging in hoarding and black-marketing. Any power for regulating and
controlling the essential commodities and the delegation of power to authorized officers
to inspect, search and seize the property for carrying out the object of the State cannot be
a power for negligent exercise of which the State can claim immunity. No constitutional
system can, either on State necessity or public policy, condone negligent functioning of

e
ti:c Sta:ear its cfficers.

0 D K Basu v. State of West Bengal

(1997) 1 SCC 416

In a landmark case related with custodial death/violence, the Supreme Court reiterated
the principle of remedial compensation in case of violation of Article 2 I of the
Constitution.

88
 Judgment
44. The claim in public law for compensation for unconstitutional deprivation of
fundamental right to life and liberty, the protection of which is guaranteed under the
Constitution, is a claim based on strict liability and is in addition to the claim available in
private law for damages for tortious acts of the public servants. Public law proceedings
serve a different purpose than the private proceedings. Award of compensation for
established infringement of the indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since the purpose of public law is not
only to civilize public power but also to assure the citizens that they live under a legal
system ’wherein their rights and interests shall be prctected and preserved. Grani of
compensation in proceedings under Article 32 or Article 226 of the Constitution of tndia
rdr the established violation of the fundamental rights guaranteed under Article 21, is an
exercise of the courts under the publ ic law jurisdiction for penalizing the wrongdoer and
fixing the liability for the public wrong on the State which failed in the discharge of its
public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to t.he remedies available in civil
law limits the role of the courts too much, as the protector and custodian of the
indefeasible rights of ih• citizens. The courts have the obligation to satisfy the social
aspirations of the citizens because the courts and the law are for th.e people and expected
to respond to their aspirations. A court of law cannot close its consciousness and
aliveness to stark realities.
54. Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions,
that monetary or pecuniary compensation is an appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for redressal of the established infringement
of the fundamental right to life of a citizen by the public servants and the State is
vicariously liable for their acts. The claim of the citizens on the principle of strict liability
to which the defence of sovereig.o immunity is not available and the citizen must receive
the amount of compensation from the State, which shall have the right to be indemnified
by the wrongdoer.

The award of compensation in the public law jurisdiction is also without prejudice to a.ny
other action like civil suit for damages which is lawfully available to *.he victim or the
heirs of the deceased victim with respect to the same matter for the omious act
committed by the functionaries of the State. The quantum of compensaiic•r. will, of
course, depend upon the peculiar facts of each case and no strait-jacket formula can h•
- evolveHin•iliat•beha1f.-Thmrelief to redress«hemrong-for4F ‹rmtablished•invasion.of.thy
fundamental rights of the citizen, under the public law jurisdiciion is, thus in addition to
the traditional remedies and not in derogation of them. The amount of compensation as
awarded by the Court and paid by the State to redress the wrong done, may in a given
case, be adjusted against any amount which may be awarded to the claimant by way of
damages in a civil suit.

89
 respect of statutory duties and powers, the scope is very restricted. Though the State is
the highest employer, industrialist and factory owner the legislation which imposes
certain duties on the employer has not been adopted in its entirely.

65. It is necessary that the law should, as far as possible, be made certain and definite
instead of leaving it to courts to develop the law according to the view of the judges. The
citizen must be in a position to know the law definitely.

The old distinction between sovereign and non-sovereign functions or governmental and
non-governmental functions should not longer be invoked to determine the liability of the
State. As Professor Friedman observes:
“It is now increasingly necessary to abandon the lingering fction of a legally
indivisible State, and of a feudal conception of the Crown, and to substitute for it
the principle of legal liability where the State, either directly or though
incorporated public authorities, engages in activities of a commercial, industrial or
managerial character. The proper test is not an impracticable distinction between
governmental and non-governmental functions, but the nature and form of the
activity in question.”

This way also what was decided in dari BannJi's case. We would recommend that
legislative sanction be given to the rule laid down in that case.

2.3 GENERAL DEFENCES

A plaintiff who fails to prove the necessary ingredients of the particular tort or torts on
which he relies will, of course, fall in his action. Even if he does prove these ingredients,
however, he may still fail if the defendant shows that he is entitled to rely upon some
specific defence. Some of these defences are peculiar to particular torts, as justification to
the tort of defamation. However, there are certain defences which. apply more generally
throughout the law of tort.

CONSENT - VOLENTI NOT FIT INJUItfA

There art. may occasions on wh.:•ch h2rm - soiiietirnes grievous harm - m.ay be inflict-û on
à [iersö fi ftif whlch4é‘hä s’ fiö iëmëdÿ'iïiu5iT, bèeatiT lie'cö nderttédÿ ten ur›tcd;-:c — -
the doing of the act which caused his harm. Simple examples are the injuries received in
the course of lawful game or sport, or in a lawful surgical operation. The effect of such
consent or assent is commonly expressed in the maxim “ Volenti no fit injuria”, which is
certainly of respectable antiquity.

Souscrit and intentional torts

A fair blow in a boxing match, an innoculation, a welcomed embrace are not torts,
because the plaintiff consents to them. It is clear that consent may be implied from

0
91
 a commonly accepted view, but we should note at the outset that there is some
disagreement about the nature and scope of this defence in the context of negligence. It is
clear that there are cases in which, in a sense, the plaintiff has assumed a risk but in
which it is unnecessary (indeed improper) to call in aid the defence to explain why the
deFerdant is not liable. If, for example, I undertake to repair the roof of your house and
while doing so I fall off and injure myself, the reason I cannot sue you is not that I have
consented to the risk of injury but that you did not in the first place owe me any duty to
iristruct me on how to go safely about my task. To take this further, suppose that a
spectator at a cricket match is struck and injured by a ball which the batsman, having
I ittle control of precisely where it will land, has iiit as hard as he can. Most lawyers would
agree that the plaintiff has no claim against the batsman and one might say that this was
because the spectator had agreed to assume the risks of cricket. However, Diplock, LJ in
Wooldridge v. Sum.ner was of the view that in such a case the claim would fail not
because of volenti but because the conduct was not, in the circumstances of the case,
negligent.

Of course, it might be said that it is still the spectator's voluntary decision to attend which
lies at the root of the failure of his claim (after all, the batsman would plainly be liable if
he tonk his bat and ball into the high street and performed the same feat) but even this
does not seem to be correct, at least in a case of this type. The answer would plainly be
the same if the person struck were a reluctant child dragged along to the game by a parent
or even one who was too young to understand the risk. Diplock, LJ went so far as to say
that “the maxim in the absence of expressed contract has no application to negligence
simpliciter where the duty of care is based solely upon proximity or 'neighbourship in
the Atkinian sense.” This approach might seem inapt for the case where the plaintiff
voluntarily encounters a hazard which the defendant has already created, but even here
Diplock, LJ preferred to deal with the case by denying that such conduct by the plaintiff
was something which should be -»rithin the contemplation of the defendant.

Other judges, however, have been inclined to approach these cases on the basis of the
plaintiff having waived the right to complain of the defendant’s negligence.

Knowledge does riot necessarily imply assent

The plaintiff must have information tilat indicates, at least in a general way, the risk of
injiirg irom ihe defendant's negligence. The mere fact that h•. is a ar• that th• activity in
which he partioipates carries'risks does not meair:hat-hmhasdicen.sed -th.s defendant.4o.be.._ . _
negligent; the knowledge that aircraft sometimes crash does r.ct inake out a case of
volenti non fiI injuria where the plaintiff has no reason to know of any defect in the plane
or the pilot. So, for example, in Slater v. Clay Cross Co. Ltd., where the plaintiff was
lawfiilly walking along a narrow tunnel on a railway track owned and occupied by the
defendants, where she was struck and injured by a passing train owing to the negligence
of the driver, Denning L.J. said: “It seems to me that when this lady walked in the tunnel,
though it may be said that she voluntarily took the risk of danger from the running of the
railway in the ordinary and accustomed way, iievei'tlieless she did not take the risk of
ncgligence by the driver.”

9
) The requirement of knowledge may mean that, paradoxically, it may be that a plaintiff
who is completely drunk is in better position than one who is sober. However, provided
he has the capacity to understand the risk it does not matter that the alcohol he bas then
makes him more willing tc take risks than he would normally be, nor even, perhaps, that
he gives no thought to the risk. However, the maxim is volenti no fit injuria, not scienti
no fit injuria and it does not follow that a person assents to a risk merely because he
knows of it. The most conspicuous illustrations of this have occurred in cases of harm
sustained by workers in the course of their employment. This doctrine was driven home
by the House of Lords in Smith v. Baker.

C'onsenl must be freely 8'’e”

The main point to notice here is that “a man cannot be said to be truly ‘willing’ unless he
is in a position to choo.se freely, and freedom of choice predicates not only full
knowledge of the circumstances on which the exercise of choice is conditional, so that he
may be able to choose wisely, but the absence of army feeling of constraint so that nothing
shall interfere with the freedom of his will”.

Consent and the standard of care

iVhether or not we regard them as properly falling under volenti non flt injuria, there are
clearly cases in which the plaintiff may have consented to a certain degree of disregard
for his safety by the defendant but has not given him complete carte blonche. This point
is obvious with regard to participants in sports. As Baovick, CJ said in Rootes v. Sheldon:
“By engaging in a sport.. . the participants may be held to hav• accepted risks which are
inherent in that sport.. .but this does not eliminate all duty of care or the one participant to
the other.”

The same may apply to a spectator who is injured in the course of some game or sport
which he is watching. A spectator does not consent to negligence on the part of the
participants, but “provided the competition or game is being performed within the rules
and requirements of the sport and by a person of adequate skill or competence the
spectator does not expect his safety to be regarded by th.e participant.” In Wooldriâge v.
Sumner the plaintiff, a photographer at a horse show, was struck by a galloping horse
whose rider had allegedly taken th•. comer too fast. It was held that there was no
negligence: Had the defendant actea -in disregard-of- all safctv .of others so as to .hav• ,
departed from the standards which migfit reasonably be expected in anyone pursuing the
competition, he might well have been I iable; but all he had done was to commit an error
of judgment in the course of doing his best to win.

Rescue cases

What are called “rescue cases” deserve a separate section. Rescue cases are typified by
A's death or injury in rescuing or cndcavouring to rescue D front an einei‘geiicy of damper

94
 to B's life or limb created by the negligence of C. As C liable to A? Or can C successfully
plead voleuti non fit inyuria? Dr Goodiiart, in sü mmarizing the American cases, said:
“The American rule is that the doctrine of assumption of risk does not apply
where the plaintiff has, under an exigency caused by the defendant's wrongful
misconduct, consciously and deliberately faced a risk, even of death, to rescue
another from imminent danger of personal injury or death, whether the person
endangered is one to whom he owes a duty of protection or is a mere stranger to
whom tte owes no such special duty.”

This was accepted as an accurate representation of English law by Greer, LJ in Hayens v.

Horwood, where the Court of Appeal affirmed the judgment of Finlay, I in favour of a
police man who had been injured in stopping some runaway horses with a van in a
crowed street.

There are several reasons why volemi non fit injuria is no answer to the rescuer's claim.
In the first place, it is now clear that he founds upon a duty owed directly to himself by
the defendant, and not upon one derived from that owed to the person imperiled, so that,
for example, the plaintiff has recovered damages for injury suffered in going to the rescue
of a trespasser who, as the law then stood, had no claim. If the defendant ought to have
foreseen an emergency and that someone would expose himself to danger in order to
effect a rescue, then he owes a duty directly to the rescuer. To go on to hold that the
rescuer was volens would be flatly self-contradictory. In the second place, a rescuer acts
under the impulse of duty, legal, moral or social, and does not therefore, exercise that
freedom of choice which is essential to the success of the defence. Thirdly, it is in the
nature of a rescue case that the defendant's negligence precedes the plaintiffs act of
running the risk. The plaintiff does not assent to the defendant's negligence at all, and
indeed, may be wholly ignorant of it at the time. All he knows is that someone is in a
position of peril which calls for his int•rvention as a rescuer.

Smith v. Baker & Sons

[1891] PC 325 (HL)

Th• plaintiff was employed in a quarry to drill stones in a cutting over which large stones
were passed in the sling of a crane. He had previously reported his view th'at this practice
was dangerous and when. due to the neg1igen-e of the dcFeadsnts, he was injured by a
falling stoiie it Was argiiéli’ b therii"that mid cofitinuiiig in’ *h% ’job demonstrated him --
voluntary acceptance of the risk. The House of Lords disagreed.
Lord Halsbury, LC G.
The objection raiscd, aiid the only objection raised, to the plaintiff's right to recover was
that the had voluntarily undertaken the risk. .. The question of law that seems to be in
debate is whether upon these facts, and on an occasion when the very form of his
employment prevented him looking out for himself, he consented to undergo this
particular risk, and .en disentitled himself to recover when a stone was negligently slung
over his head or negligently permitted to fall him and do him injury.

95
 application. So far from consenting, the plaintiff did not even know of the particular
operation that was being performed over his head until the ini ry happened to him, and
consent, therefore, was out of question.

Dann v. Hamilton
[1939] l All ER 59

Judgment
In this action, the plaintiff claims damages for personal injuries which she sustained, as
she alleges by reason of the negligent driving of a man named Hamilton, when she was a
passenger in his car. Hamilton was killed in the accident, and the c1ai.m is therefore,
brought under the Law Reform (Miscellaneous Provisions) Act, 1934, against his widow,
as representing his estate. The defendant originally denied the negligence and the
damage. She also relied, as an alternative defence, upon the maxim volenti non fit injuria,
alleging that, if the deceased were negligent, the plaintiff well knew that he was under the
influence of drink to such an extent as to be incapable of having control of the car, and
that the plaintiff nevertheless became, and/or elected to remain, a passenger in the motor
car, and that she voluntarily took the risk involved therein During the trial, the denial of
negligence on the part of the deceased was withdrawn, and the special damage was
agreed at $35 19s. 4d. This left outstanding (i) the issue as to general damages, and (ii)
the issue as to whether or not the claim was defeated by the maxim volenti non fit
injuria.

As I have said, it is common ground that the deceased, Hamilton, negligently caused the )
collision, and the evidence further satisfies me that his driving at the time of the collision
was that of a man, not only negligent, but negligent through excess of drink. The question
is whether, on those facts, the rule or maxim volenti non fit injuria applies so as to defeat
the p!aintiffis claim. It has often been pointed out that the maxim says volenti, not
scienti. A complete knowlecige of the danger is in any event necessary, but such know'ledge
does not necessarily import consent. It is evidence of consent, weak or strong
according to
circumstances. The question whether the plaintiff was volens is one of fact, to be 1
determined Gn this amongst other evidence

As to knowledge I find as a fact that the plaintiff knew at l 1.50 p.m. when Taunten was
set down, that Hamilton wnile far fi om being dead drunk, was under the influence of
cirink :o such «ri extent ss sub°.:ar:tiaî ly to incresse the c*.ances of a collision al.sing from
his iiegligéïicë. that with this k ö w!cd û s% re-"ét.tend th“ê'c'dr, à n'd that, in iö "tiö ing;-she - -- - -
was not acting uniier the pressure of any legal or social duty, or through the absence of
alternative and practicable forms of transport, since she could have gone home by bus for
2d. ls this enough to constitute her volens for the purposes of the maxim? Jndeed, is it
clear that the maxim applies at all to the present case? How stands the matter with regard
to the tort of negligence, as we may now venture to call it? Does the maxim apply to
negligence at all? C!eghorn v. Oldham seems to decide that in relation to negligence the
maxim does not apply at all. This case, however, was decided in relation to a particular
game - namely, golf - and it would be improper to stretch general propositions laid dow i
in it bejond the subject matter immediately concemed.

97
 Some textbook writers of authority, notably Be.ven on Negligence, 4“ edu., at p. 790
roundly deny that :he maxim applies to cases of negligence at all. This is a hard saying,
and must be read, I think, subject to some implied limitation. Where a dang•roiis physical
condition has been brought about by the negligence of the defendant, and, after it has
arisen, the plaintiff, fully appreciating its dangerous character, elects to assume the risk
thereof, the maxim has often been held to apply, and to protect the defendant. Where,
however, the act of the plaintiff relied on as a consent precedes, and is claimed to license
in advance, a possible subsequent act of negligence by the defendant (and this, I think,
must be the case Beven had in mind), the case may well be different. .. .

V/ith some qualifications, Pollock on Torts, 13° edu., supports Beven's dictum,
declaring, at p. 172: “The whole law of negligence assumes the principle of volenti non
fit injuria net to be applicable.”

In Woodley v. Metropolitan District Ry. Co. Melish, L.I, carries this illustration a step
further. He says:
“Suppose this case: a man is employed by a contractor for cleansing the street to
scrape a particular street, and for the space of a fortnight he has the oppominity of
observing that a particular hansom cabman drives his cab with extremely little
regard for the safety of the men who scrape the streets. At the end of a fortnight
the man who scrapes the streets is negligently run over by the cabman. An action
is brought in the county court, and the cabman says in his defece: “You know my
style of driving, you had seen me drive for a fortnight, I was only driving in my
style.”

The judgment of Melish, L.I, in this particular case was a minority judgment, but seems
to have been preferred to that of the majority of the House of Lords in the later case of
Membery v. Great iVestern Ry. Co.

Cannot a yet further step be safely taken? I find it difficult to believe, although I know of
no authority directly in point, that a person who voluntarily travels as a passenger in a
vehicle driven by a driver who is known by the passenger to have driven negligently in
tlie past is volens as to fixture negligent acts of such driver, even though he could have
chosen some other form of transport if he had wished. Then, to take the last step, suppose
that such a driver is likely to drive negligently in the past, out because h• is known to the
plaintiff to be undcr the influer›ce of drink- That is I.he prese t case: Ougiit tne- result tc be. .._
any different? iifter rrii:ch debate, I have come tc !he conclusion. that ii shou!d not, and
that the plaintiff, by embarking in the car, or re-entering it, with knowledge that through
drink the driver had materially reduced his capacity for driving safely, did not impliedly
consent to or absolve the driver from liability for, any subsequent negligence on his part
whereby the plainti ff might suffer harrri.

There may be cases in which the drunkenness of thc driver at the material time is so
extreme rind so glaring thnt to ncccpt a lift from him is like engaging in an intrinsically
and obviously dangerous occupation, intermeddling with an unexploded bomb or walking

98
 attention on winning, and if the game or competition is a fast moving one will have to
exercise his judgment and attempt to exert his skill in what, in the analogous context of
contributory negligence, is sometimes called “the agony of lhe moment”. If the
participant does so concentrate his attention and consequently does exercise his judgment
and attempt to exer• his skill in circumstances of this kind which are inherent in the game
or competition in which he is taking part, the question whether any mistake he makes
amounts to a breach of duty to take reasonable care must take account of those
circumstances.

If, therefore, in the course of:he game or competition at a moment when he real!y has not
time to think, a participant by mistake takes a wrong measure, he is not, in my view, to be
held guilty of ahy negligence.

“A person attending a game or competition takes the risk of any damage caused to him by
any act of a participant done in the course of and for the purpose of the game or
competition, notwithstanding that”jsuch act may involve an •rror ofjudgment or a lapse of
skill, unless the participant's conduct is such as to evince a reckless disregard of the
spectator's safety.” The spectator takes the risk because such an act involves no breach of
the duty of care owed by the participant to him. He does not take the risk by virtue of the
doctrine expressed or obscured by the maxim volenti noti fit injuria.

Since the maxim has, in my view, no application to this or any other case of negligence
simpliciter, the fact that the plaintiff, owing to his ignorance of horses did not fully
appreciate the nature and extent of the risk he ran did not impose on Mr. Holladay any
higher duty of care towards him than that which he owed to any ordinary reasonable
spectator 'with such knowledge of horses and vigilance for his own safety as might be
reasonably expected to be possessed by a person who chooses to watch a heavyweight
hunter class in the actual arena where the class is being judged.

ACT OF GOD — VIS .WAJOR

Where the escape is caused ciirectJy by natural causes w'ithout human intervention in
“circumstances which no human foresight can provide against and of which human
prudence is not bound to recognize the possibility”, the defence of act of God applies.
This was recog»ized by Blackburn, J in R ylands v. N/e/cher itself and was first applied in
A'icho/s v. llarsland. -In ihis case the deb-ndae: for iiiaiiv ;'ears had been in-possession:of.
som• artific:al omamental ! lkes formed by darnming up a ri.atural stream. An
extraordinary rainfall, “greater and more violent than any within the memory of
w itnesses” broke down the artificial embankrnents and the rush of escaping water carried
away four bridges in respect of which damage the plaintiff sued. Judgment was given for
the def•ndant; the jury had found that she was not negligent and the court held that she
ought not be liable for an extraordinary act of nature which she could not reasonably
2nticipate.

100
 Whether particular occurrence amounts to an act of God is a question of fact, but the
tendency of the courts nowadays is to restrict the ambit of tne defence, not because strict
liability is thought to be desirable but because increased knowledge li.mits the
unpredictable. In Greenock Corporation v. Caledonian Ry. the House of Lords criticized
the application of the defence in Nichols v. Marsland, and rour of their loi dships cast
doubt on the finding of facts by the jury in that case. The corporation constructed a
concrete paddling pool for children in the bed of the stream and to do so they had to alter
the course of the stream and obstruct the natural fiow of the water. Owing to a rainfall of
extraordinary violence., the stream overflowed at the pond, and a great volume of water,
which would normally have been carried off by the stream, poured down a public street
into the town and caused damage to lhe plaintiffs property. The House of Lords held that
the rainfall was not an act of God and th2t the corporation was liable. It was their duty
“so to work as to make proprietors or occupiers on a lower level as secure against injury
as they would have been had nature not been interfered with”. Similar considerations
apply to any extraordinary high wind and an extraordinary high tide. Lightning,
earthquakes, cloudbursts and tomadoes may be acts of God but there seems to b• no
English decision in which they have been involved.

In the law, then, the essence of an act of God is not so much a phenoirienon which is
sometimes attributed to a positive intervention of 'he forces of nature, but a process of
nature not due to the act of man and it this negative side which deserves emphasis. The
criterion is not whether or not the event could reasonably be anticipated, but whether or
not human foresight and prudence could reasonably recognize the possibility of such an
event. Even in such limited form, however, this defence, like the defence of act of a
stranger, shifls the basis of the tort from responsibility for the creation of the risk to
culpable failure to control that risk. This has been criticized on the ground that an
accidental escape caused by the forccs of nature is within the risk that must be accepted
by the defendant when he accumulated the substance on his land.

CONTRIBUTION NEGLIGENCE

When the harm is attributable partly to the fault of the defendant and partly to that of the
plaintiff, then any award of damages may be reduced by reason of the plainiifPs
contributory negligence. At common law contributory negligence was a complete
defcnce [Buf/erJe/d v. Forester (1809) 1 l East 60]. In admiralty where two ships were at
frui' the-less was apportioned equally, brit the‘Marti:me Conventions Act- 19 l 1- provides ... .
for apportionment ‘the degree in which each vessel was in fault’. In order to avoid some
of the harshness of the common law rule, which applied even though the plainti fPs
negligence was slight in comparison to the defendant's conduct, the courts developed the
rule of ‘last opportunity’. This meant, in effect, that the person whose negligence was last
in time, and therefore, had the last opportunity to avoid the accident, was treated as the
sole cause of the damage. The rule was very difficult to apply in cases where the parties
negligence was virtually simultaneous, as for example in road traffic accidents, and it led
to a complex body of law in which tire courts had to make increasingly fine and arbitrary
distinctions about causation.

101 0
 These problems were largely removed by the Law Reform (Contributory Negligence) Act
1945 [UK] which, for the first time, permitted apportionment of the loss for the accidents
occurring or› land. Section l(J ) provides that:
“Where’ any person suffers ciamage as the result partly of his own fault ant partly
of the fault of any other person or persons, a claim in respect of that damage shall
not be defeated by reason of the fault of the person suffering the damage, but the
damages recoverable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant’s share in the
responsibility for the damage.”

Scope of the Act

By Section 4 of the Act, fault means “negligence, breach of statutory duty or other act or
omission wfiich gives rise to a liability in tort or would, apart from this Act, give rise to
the defence of contributory negligence”. Thus, the Act extends to actions in nuisance and
Rylands v. Fletcher, though it was formerly a malter of some debate whether it applied in
action for trespass to the person.

Under the Act, however, it is not necessary that the plaintiff should owe a duty to the
defendant. lt is sufficient to establish that the plaintiff ‘did not in his own interest take
) reasonable care of himself and contributed, by this want of care, to his own iniury’.

The plaintiffs negligence need not have contributed to the accident if il has contributed
to the damage caused by the accident, i.e., by adding to the extent of the damage or by
falling to avoid or lessen the damage. It is on this basis that a passenger in a motor
vehicle who does not wear a seat belt will be held contributorily negligent even though
the accident was caused entirely by the defendan*’s negligence.

Standard of care

A person is guilty of contributory negligence if he ougiit reasonably to have foreseen that,

if he did not act as a reasonable, prudent man, he might i›e hurt himself; and in his
reckonings he must take into account the possibility of other being careless’ {Fones v.
Livox Quarries Lid. [ 1952] 2 QB 608, 615 per Denning, LJ). In theory this is meant to be
the same standard of care as that applied to defendants. In practice the courts seem to
demaiiñ less-trem -plc:nti*fs- in the-way ofprtid-nceuhan ’iiom defendants -Thiv«nay bee. .
partly due tc th• fact thai before 1945 the courls tended to discount comparatively minor
carelessness by the plaintiff in order to achieve a substantially fair result.

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