Fault and no fault liability

• No Fault Liability :-

The Rule of Strict Liability also known as The Rule of No-Fault Liability which means the individual might have the liability without being at fault. The person in this case may not have done any harmful or negligent act or may have put in some positive efforts, however, the rule claims him for compensation. That means the defendant or the doer will be held liable irrespective of presence of any negligence from his part.

• Fault liability :-

“Fault” is a type of liability in which the plaintiff must prove that the defendant’s conduct was either negligent or intentional; fault-based liability is the opposite of strict liability. All the other torts can be consider under  fault tort including battery, assault, defamation,   trespass,  negligence, nuisance , intentional torts and etcetera.

 No Fault Liability

1. Strict Liability :-

Strict liability is the principle which evolved from case of Rylands v Fletcher in the year 1868. This principle clearly states that a person who keeps hazardous substances in his premises, is responsible for the fault if that substance escapes in any manner and causes damages. This principle stands true if there was no negligence on the side of the person keeping it and the burden of proof always lies on the defendant to prove how he is not liable.

Facts: There were two men living next to each other, Rylands  and  Fletcher. Fletcher owned a mill for whose energy requirement; he constructed a water reservoir on his land. To get this work done, he had hired independent contractors and engineers. There were old unused shafts under the site of the reservoir which the engineers didn’t notice and thus did not block them. Due to the negligence of the contractors, the shafts that led way to Rylands’ land burst when water was filled in the reservoir. This caused huge damage and loss to Ryland as the water entered into his coal mine. Thus, Ryland filed a suit against Fletcher.

Issues: The issue was very concise and straight. Can the defendant be held liable for the act of someone else due to which an entity on his land escapes without his negligence or intention.

The defendant took the defence that that it was not his fault but the contractors’. His being liable for the damage, the cause of which was unknown to him was not acceptable to him.

Judgment: The house of the Lords rejected the plea of the defendant and claimed him to be liable for all the damages to Rylands

Essentials of Strict liability :-

Dangerous Substances: The defendant will be held strictly liable only if a “dangerous” substances escapes from his premises. For the purpose of imposing strict liability, a dangerous substance can be defined as any substance which will cause some mischief or harm if it escapes. Things like explosives, toxic gasses, electricity, etc. can be termed as dangerous things.

Escape: One more essential condition to make the defendant strictly liable is that the material should escape from the premises and shouldn’t be within the reach of the defendant after its escape . For instance, the defendant has some poisonous plant on his property. Leaves from the plant enter the property of the plaintiff and is eaten by his cattle, who as a result die. The defendant will be liable for the loss. But on the other hand, if the cattle belonging to the plaintiff enter the premises of the defendant and eats the poisonous leaves and die, the defendant would not be liable. In the judicial pronouncement of Reads v. Lyons & Co. it was held that if there is no escape, the defendant cannot be held liable.

Non-natural Use: To constitute a strict liability, there should be a non-natural use of the land. In the case of Rylands v. Fletcher, the water collected in the reservoir was considered to be a non-natural use of the land. Storage of water for domestic use is considered to be natural use. But storing water for the purpose of energizing a mill was considered non-natural by the Court. When the term “non-natural” is to be considered, it should be kept in mind that there must be some special use which increases the danger to others. Supply of cooking gas through the pipeline, electric wiring in a house, etc. is considered to be the natural use of land. For instance, if the defendant lights up a fire in his fireplace and a spark escapes and causes a fire, the defendant will not be held liable as it was a natural use of the land.

Exceptions to Strict Liability :-

The strict liability rule does not apply in cases involving the following exceptions:

1) Act of God

An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. It can cause damage regardless of how many precautions one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability.

2) Wrongful act of a third party

Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat.

3) Plaintiff’s own fault

In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases, he cannot shift liability on some other person regardless of how much he suffers.

• Absolute liability :-

The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union of India. This is one of the most landmark judgment which relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the rule of strict liability and stated that the defendant would be liable for the damage caused without considering the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently dangerous or hazardous activity, and if any harm is caused to any person due to any accident which occurred during carrying out such inherently dangerous and hazardous activity, then the person who is carrying out such activity will be held absolutely liable. The exception to the strict liability rule also wouldn’t be considered. The rule laid down in the case of MC Mehta v UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick relief through insurance, the Indian Legislature passed the Public Liability Insurance Act in the year 1991.

Plainly absolute liability is exception minus strict liability, it is a more stricter version of strict liability.

Fault liability

1.  Battery and Assault :-

Both assault and battery are the types of intentional tort. The assault is generally an attempt to harm someone else which also includes threats against other people. So, assault is a planned attempt to violently harm another person. While the battery is intentional touching another person without the person’s consent. In the battery, the personal liberty of the person is compromised to cause physical harm to the person. 

Difference between Assault and Battery

Assault and battery are like two sides of a coin. They are in a way similar to each other and are also totally different from each other. 

Battery:-

• It is used to harm the person
• Physical contact is mandatory
• Actually punching the person is battery
• Cole v. Tuner

Assault :-

• The sole intention is to threaten the person
• No phisical contact required 
• Trying to punch a person is assault 
• Tuberville v. Savage

1. Trespass and Nuisance  :-

Trespass is a direct interference with a person’s possession of the land and it takes place through material objects. It is prima facie actionable   Eg. : Planting a tree on another man’s land will amount to trespass.                      

In legal terms, Nuisance refers to the unlawful interference of a person’s use of his land, it can be committed by any activity or condition that interferes with the plaintiff’s right of the enjoyment of his land. EG. A cuts the grass in his garden with the grass cutter machine when B took tuition classes in an adjacent building. The noise caused disturbance to B. A is liable for committing a nuisance.

Difference between Trespass and Nuisance:-

Trespass:-      

• If interference is direct  it leads to trespass
• Interference with the person’s possession
• Interference is always through material or tangible goods.
• Actionable per se
• Kind :- Trespass to land and property
• Dias v. Pasmore

Nuisance :-

•  Interference is consequential leads to nuisance
•  Interference with the persons use or enjoyment of land or property
•  Interference can be through intangible objects
•  Damage has to be proved
•  Kinds:- Public and Private
•  Robinson v. Kilvart

• Negligence :-

 Negligence is a civil tort which occurs when a person breaches his duty of care which he owed to another due to which that other person suffers some hard or undergoes some legal injury. In layman’s terms, Negligence can be explained as the failure of discharge or the omission to do something due to careless behaviour.

In tort law negligence can be:

• A mode of committing other torts like trespass or nuisance
• A separate tort in itself

Essentials of Negligence

• Duty of Care: The plaintiff needs to prove that the defendant owed him a duty of care and made a breach of the same.  The nature of duty for negligence is purely legal and not moral or religious. ‘Duty‘ can be seen as an obligation to be careful towards others.

• Breach of Duty: When the first condition is established, the second step is to establish that there was a breach of duty. The defendant is supposed to carry out his duty like a reasonable man. The deciding test is to see whether the defendant has taken reasonable care or not.

• Damage: As a result of the breach of duty by the defendant, the plaintiff must suffer some damage.

Donoghue v Stevenson [case law]

Donoghue v Stevenson is a landmark case on the tort of Negligence. In this case, the plaintiff had gone to a cafe to have a ginger beer, the bottle of which was sealed with an opaque cork. On emptying the contents of the bottle, a decomposed body of a snail came out, The plaintiff was taken ill due to the part consumption of the contaminated contents of the bottle.

It was held by the court that the manufacturer who manufactures the product for the end consumer with the assumption that with the lack of reasonable care in his part the consumer will suffer an injury, such a manufacturer owes a duty of care to the plaintiff.

• Medical Negligence :-

A person is expected to possess the required skill and understanding of his duties when he is in a particular profession. Especially in the medical profession where the stakes are very high, a huge onus lies on the practitioner to take care while choosing and administering a particular treatment for his patient.

A breach of this duty amounts to medical negligence. 

Eg: A doctor administers anaesthesia to a patient before surgery but the amount of anaesthesia is significantly more than the average dosage for an adult. This causes the death of the patient, this amounts to medical negligence.

Res Ipsa Loquitor

Generally, in cases of negligence, the onus of proof lies on the plaintiff. It is the plaintiff’s job to prove that the defendant had not only been negligent but it also caused damage to the plaintiff.

In some cases, there is no need for it, the occurrence of such negligence suffices. It is in these circumstances that the principle of ‘Res Ipsa Loquitor‘ is invoked, the meaning of which is ‘ things speak for themselves’.

In cases where the circumstances themselves point towards the defendants for his negligence, the court presumes that the defendant was negligent and the damage was caused to the plaintiff due to his wrongful actions.

Eg: A doctor leaves his watch inside the stomach of the patient after he performs surgery. If such a case comes to the court, the circumstances speak for themselves and the defendant is presumed guilty.

Moreover there are two kinds of negligence mainly composite and contributory negligence.

5.  Defamation :-

A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made is written and is published, then it is “libel”. If the defamatory statement is spoken, then it is a “slander”.

Elements of Defamation

• The Statement should be made- A statement can be made by words either spoken or intended to be read, or by signs or by visible representations. For example, A is asked who stole B’s diamond ring. A points to C, intending to cause everybody to believe that C stole the diamond ring. This is defamation.

• The Statement must refer to the plaintiff- The defamatory statement must refer to the person, class of persons or the trustees of a company. The reference may be express or implied. It is not necessary that the plaintiff has to be mentioned by name, if he can still be recognized. The person referred to in the defamatory statement can be living or dead, however, defamation suit on behalf of a dead person can be filed only if the person filing the suit has an interest

• The Statement must be defamatory- Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker’s bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.

• The intention of the wrongdoer- The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.

• The Statement should be false- A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.

• The Statement should not be privileged- In some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability.

• The Statement must be published- For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In Mahendra Ram v. Harnandan Prasad, the defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else.

• The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true.

• The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

In Gorantla Venkateshwarlu v. B. Demudu, the respondent was a bank officer and was sent on deputation to work as the Managing Director of Co-operative society. The appellant, the President of Society sent a complaint to the Bank alleging that the respondent had illicit connections with ladies which affected the image of the society during his tenure as the Managing Director. The respondent sent a reply denying the allegations made against him. The branch manager of the bank conducted an inquiry and found out that the allegations were false and were made only with a view to see that the respondent is not deputed to inspect the affairs of the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.

6.  Malicious Prosecution :-

Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of process against property, and malicious search. Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. Generally  it can be said that the malicious prosecution is defined as a judicial proceeding instituted by one person against another, from wrongful or improper motive, without any reasonable and probable cause to justify it.

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray.the Court defined the term “malicious prosecution” in the following words: “A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution.” The Court in the same case laid down the distinction between “an action for malicious prosecution” and “an action for abuse of process” in the following words:- “A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to affect the improper use of a regularly issued process.”

Essential elements of Malicious Prosecution :-

Following are the essential elements which the plaintiff is required to prove in a suit for damages for malicious prosecution:-

• Prosecution by the defendant.
• Absence of reasonable and probable cause.
• Defendant acted maliciously.
• Termination of proceedings in the favour of the plaintiff.
• Plaintiff suffered damage as a result of the prosecution.

7.      Malice  :-

Malice means spite or ill-will in the popular sense. When an act is done with bad intention, called Malice. An act or statement becomes malicious if used for purposes other than those sanctioned by the law authority. 

It is possible to discuss the term malice in both legal and popular sense. In the legal sense, it means’ intentional wrongdoing, without a just cause or excuse or a lack of a reasonable or probable cause’ and it is known as ‘malice in law’ . In the popular sense, it means’ an improper or evil motive’ and it is known as ‘malice in fact’.

It emphasizes here that this wonderful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of an improper, bad or evil motive or malice.

In the case of Town Area Committee v. Prabhu Dayal AIR 1975 All 132, the court observed that “mere malice cannot disentitle a person from taking recourse of law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action is motivated by malice or not.”

Conclusion :-  

The word tort originates from the French language. It is equivalent to the English word “wrong” and Romanian law’s term “delict”. It is derived from the Medieval Latin word “tortum” which means “wrong” or “injury” which itself was further developed from the Old Latin word “torquere” which means “to twist”. It is a breach of duty which amounts to a civil wrong. A tort arises when a person’s duty towards others is affected, an individual who commits a tort is called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved, then they are called joint tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or individually.

The main aim of the Law of Torts is the compensation of victims. There arises two kinds of Liability mainly Fault liability and no fault liability. The Fault liability includes the torts of negligence or intentional including defamation, nuisance, negligence, assault and battery , malice, malicious prosecution, nervous shock , false imprisonment , and etcetera. No Fault Liability includes the rules of Strict liability and Absolute liability which is all discussed in this project. Mainly there are two kinds of Fault liability intentional and negligence.   The examples of  negligence are  Slip and fall accidents ,  Car accidents  , Truck accidents , Motorcycle accidents , Pedestrian accidents ,  Bicycle accidents , Medical malpractice while the examples of intentional torts are assault and battery, false imprisonment , Conversion, intentional infliction of emotional  distress , fraud / deceit, trespass to land and property and defamation.

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