Conceptual Scrutiny of Absolute Liability in India

Every law in our country has some of its pre-requisites, which if not fulfilled does not give right to the plaintiff to claim damages.


  • Dangerous thing brought by the defendant on his land
  • There should be non-natural use of his land
  • The dangerous thing must escape from his land

1. Dangerous thing

Liability cannot be fixed under this rule until the thing brought is dangerous in nature. Juxtaposing the case of Rylands v. Fletchers, large amount of water amounted to dangerous thing.

2. Non-natural use

The use of land should be non-natural, simply meaning, by carrying of that activity inherent danger of others get increased. Large reservoir so created in the case was non-natural use.

3. Escape

The most important element apart from danger and non-natural use is that the dangerous thing should have escaped the premises of plaintiff.

Apart from these essentials, our law provided defendant with some of the exceptions which he can plead in order to save himself from the burden of liability.


Plaintiff’s fault

When we talk about this defence we are referring to the general defence plaintiff the wrongdoer. It means that the liability will not arise if the damage caused to the plaintiff was because of his own fault and not the fault of the defendant. However. it must be noted that mere fault of plaintiff does not disentitle him from receiving the damages until and unless it has been proved that plaintiff action was the proximate cause for the damage caused to the plaintiff. In Ponting v. Noakes[1], the plaintiffs horse went to the defendant garden and nibbled poisonous leaves. It was held that there was no escape and the plaintiff was at own fault hence the exception could not be pleaded.

Act of God

Act of God is available when the act causing the damage arose because of the natural forces and the same could not be foreseen or avoided by a prudent man. Act of god only considers the activity arising out of natural elements and not human impossibility. In Nichols v. Marshland[2] the defendant constructed an artificial lake and the embankment of the lake gave way to rush plaintiffs four bridges because of the rainfall deemed to be heaviest in the human memory. The plaintiff sued for damages but it was held that since lake were created as such it could fight the ordinary rainfall and this was an extraordinary case, the defence of act of god could be pleaded.

However in cases of electrocution and resulting deaths, this defence could not be pleaded ( S. K. Shangrung Lamkang v. State of Manipur[3])

Act of third party

This defence is pleaded when the damage was caused by the act of the third party which is not related to either plaintiff or defendant. So basically an act of stranger is a good defence to the rule of strict liability. In Rickards v. Lothian[4], because of the blockage of wash basin pipe by a stranger which was in the control of defendant, the plaintiff’s goods were damaged. This was considered to be a defence in this case.

Consent of Plaintiff

Consent of plaintiff is considered to be the same as Violenti non fit injuria which is the general defence in torts. In cases of strict liability consent will be one of the important factors when the act benefits both the party and hence both of them consented to the risk arising out of that act. One of the leading authority in this defence is Carstairs v. Taylor[5]

Statutory Authority

Any act done under a statue is a defence under tort. However statutory authority can be pleaded when there is negligence on the part of the defendant who is a public servant. In Green v. Chelsea waterworks Co.[6] the defendant maintained the supply pf water as a statutory duty. Without any negligence on the part of defendant the main line of the water busted as a result of which plaintiffs premises got flooded. It was held that the company is not liable because the same was carried under statutory duty.

Let’s talk about main points of distinction between strict liability from absolute liability.

  • Industries with hazardous activities are categorised under absolute liability, rest falls under strict liability.
  • If the person is injured outside or inside the premises, rule of absolute liability will be applicable.
  • There are no exceptions available if the person is held liable under absolute liability.
  • The new rule of absolute liability is applicable even to natural use of land

[1] 1849 2 Q.B 281

[2] 1876 2 Ex. D. 1

[3] A.I.R 2008 S.C. 46

[4] 1913 A.C. 263

[5] 1871 L.R. 6 Ex. 217

[6] 1894 70 L.T. 547

This article is authored by Abhishek Kothari, student of B.B.A. LL.B at Auro University (School Of Law)

Also Read – Damnum Sine Injuria and Injuria Sine Damnum

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