Parental Authority under Law of Torts

As we know ‘parental” word indicate parents. parent are very important for everyone because they give birth to the
child, then guide them, educate the, etc. so like that in law they is always a need of the parental authority which sets the
rules, regulation for the smooth functioning of the laws. Rules and regulations. Like parents give birth to the child, then
they have certain rights on the child and some responsibilities towards the child like right to give education, right to
determine the religion, right to custody, right to supervision etc.
Parental authority or rights
1. Right to determine the religion – we know that there are 4 main religion in India, Hindu, Muslim, Sikh and christens.
There is the rights and the duties of the parent to determine the religion of the child. If he /she born in Hindu family,
then he is consider to be the Hindu and if he/she born in Muslim family, then he/she is consider to be Muslim. It is
the absolute right given to the parent.
2. Right to custody –parent have absolute right to have custody of their children. They do all the necessary things for
their children. There are different types of custody, physical custody and the legal custody. Parents have both the
custody legal custody and physical custody.
3. Right to education-`education is one of the basic necessities for human being, so every parent provide the basic
education to their children. Education is very important for the livelihood. Without education one can’t survive in
this world. Even government of India take various steps to promote the education in schools. Free education to the
girls are provide in the government schools and there is reserves seats for the one child in every school weather
private or government.
4. Right to supervision- if parents do their duties towards their children then they have some rights towards their
children. One of them are right to supervision which means that , they can supervise their children activities like
their children can’t involve in any kind of activities which is illegal or wrongful act. If they are involve in any kind of
activities like this, they take measure steps for their children and for the betterment of the child.
5. Right to control- this right is very important for the welfare of the children. right to control means if they believe
that their children are not safe or they are doing something which is not right, in that case they can control their
child’s life but not all the time they can control their children life because they have their own privacy and if they are
attaining the age of 18 years then they have their person life and now they are legal adult and attain majority. They
now take their own decision.
6. Right to reasonable chastisement- they chastise their child because parents always love their children, they respect
their children. Where there is love there is always a chastisement involve. Some relations are from heart, faith and
have respect also. Respect plays a major role in the chastisement.
7. Right to protection and health care- as we all know the importance of the health now in the COVID- 19 situation.
Everyone life is equal important. It is the responsibility of the parents to protect their children’s life by providing
proper and health food, nutrition and vitamins also. Provide proper medical facilities and take care of their children.
Our country is also facing this kind of situation now a days, COVID -19 situation is worst day by day and people are
die due to oxygen crisis. So we can say that health is very important for the human beings and everything that
human do or earn is for the health or to fulfil their stomach.
Quasi- Parental Authority under Law of Torts
Quasi – parental come from the Latin word “loco parentis” means ‘in the place of parents’. Quasi parental authority
have less rights then the parental authority. Quasi parental authority also have an option to delegate their
responsibilities with the other person. Other person consist of the schools, local guardian or relatives, who can take care
of their children. Babysitter also acts as a quasi -parental authority for some specified time period.
The main important point in this both parental and quasi- parental authority is that both have the legal authority of
their children. In parental authority there is no delegation of the rights and the duties but in the quasi authority there is
some delegation of the duties and the rights to other person or authority. Let’s take an example- parents give some
authority to school teachers, principle or tuition master, for the welfare of the children. So they can study properly and
achieve their goals in future. This is for the betterment of the child. Nanni or babysitter also act as a quasi- parental
authority. Quasi parent is also important for the student to leans the social norms and how to live in the society. At the
end, human has to do things for the society.
In Relevance with The Law of Torts
As we already discuss, about the parental and quasi parental rights and duties. These authorities are provided to the
parents for the safety of the student but it is not right to say that these rights can be used as the defence in any kind of
criminal offences. In short we can say that in case of battery or assault, there is no defence to be given to the children.
As the rights and duties of the parental or quasi parental authority on the one hand and the committing of the crime on
the other hand. Any kind of the defence or favour can’t be given to the children or any other person involve in these
activities. If he/she commit any crime of offence which is illegal, then he / she can be liable under the law of torts.
Case Study: R.C. Thampan and Ors. vs The Principal, Medical College
In this case, one student (The petitioner) involve in the ragging of the junior students. As we know that the ragging is
offence under the law. The principal of the Medical College take action against the Thampa, and suspend him from the
college because that is against the protocol of the college, also effect the reputation of the college. “He also said: “It
seems to me that the authority to administer moderate and reasonable-corporal punishment, which any parent who
sends a child to school is presumed to give to the authorities of the school, extends to the mistress occupying the
position which the defendant occupied in this school”. The incidents are happened in the campus and the hostel areas.
The written statement of the juniors who have been the victim of the ragging. Kept as an evidence for the case. The
petitioner also beat the students, ill- treatment, or mentally and physically harm the students. The management
committee record the evidence of the victims and personally investigate the matter because this will effect the
reputation pf the college. Later, the petitioner threatened the juniors, to give their statement back or not to tell the
truth otherwise, they will kill them and many of the student’s withdrawal from the statement or evidence. In this case,
later it was also came up that, the principal of the medical college not having the jurisdiction to suspend the students or
nay of the committee.
Judicial and Quasi-judicial Authority under Law of Torts
General defences under tort law are available to all when they claim to have a reason to have committed a tort.
However, apart from the defences available, certain kind of “immunity” is granted to judicial officers and quasi-judicial
authority. It is important here to know the basic difference between the said authorities to make the whole idea of
immunity clearer. Judicial authorities are that of court of law or judges which interpret the law, settle disputes and
punish those who broke the code.
On the other hand, quasi-judicial bodies are authorities who have powers resembling those of the judicial bodies and
are restricted to certain areas of expertise. Judicial authorities may have the power to create new laws in time of dire
need leading to Judicial Activism, however, quasi-judicial bodies do not have this power and are bound to draw
conclusions based on existing law. Now that we know the meaning of the said authorities, we know that the defence of
“immunity” under tort law is required so that it does not intervene with their process of work.
In various countries, civil matters like these have different approaches but a kind of similar understanding is kept in
mind while coming to a decision. Similarly, in cases of judicial immunity, following two statements are kept in mind.
Firstly, when this defence is applied, they see that the protection which is offered in respect of the acts done is identical
with that of the words spoken.
Secondly, whatever has been said or done which prompts the authorities for such a defence should be done well within
their jurisdiction and not be ultra-vires. These two propositions understand the uncertainties which sometimes
surrounds a justice and therefore give rise to justice’s protection as an exception to the general rule.
In the case of Stump v. Sparkman, a judge had passed an affirmative decision on a petition filed by a girl’s mother
regarding a tubal ligation surgery of the same 15 -year old girl while she was told that she is undergoing an appendix
removal surgery. Later on when the girl grew up and came across the fact that she had been sterilised, she sued the
judge. In cases like this, the U.S Supreme Court held that the judge is to be provided with complete immunity because
he was performing his duties which are well within his jurisdiction and the fact that the “act” was morally reprehensible
stands irrelevant.
Vicarious Liability of the State
Article 300 of the Indian Constitution mentions the concept of state culpability. It stipulates that for the purposes of a
lawsuit or legal procedures, the Union of India and the States are juristic persons. Although both the Union of India and
the State Governments are capable of being sued and being sued, those situations have not been addressed. We must
look back and determine the extent of the liability imposed on the East India Company by the Courts in order to
determine whether the state is or is not responsible for a certain act.
Here, the words “administration” and “state” are interchangeable. It is a difficult question to answer whether the
government would be held accountable for the wrongdoings of its employees, especially in emerging nations where the
scope of state involvement is expanding. The Constitution’s clauses and the public law principles inherited from British
common law control the government’s tort liability. Three guiding concepts serve as the foundation for the concept of
the State’s vicarious culpability for the wrongs carried out by its agents:
● Respondeat superior (let the principal be liable).
● Quifacit per alium facit per se (he who acts through another does it himself).
● Socialization of Compensation.
Constituents of Vicarious Liability
So the constituents of vicarious liability of state are:
1. There must be a relationship of a certain kind.
2. The wrongful act must be related to the relationship in a certain way.
3. The wrong has been done within the course of employment.
State Liability
The saying “The King can do no wrong” is a part of English common law, and it states that the King is not liable for the
wrongs done by his or her subordinates. However, the standing of the ancient Common law maxim in England was
revised by the Crown Proceedings Act of 1947. Previously, the King was immune from tort liability for any wrong that it
genuinely authorized or that was committed by one of its subordinates while they were working for it.
The Crown is now equally liable for any wrongdoing committed by its employees as a private individual as a result of the
Crown Proceedings Act, which was created in reaction to the expanding state’s functions. In a manner similar to this, the
Federal Torts Claims Act of 1946 in the United States establishes the guiding principles and effectively resolves the
question of State culpability.
In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court
classified the functions of secretary of state into two –
1. Sovereign functions
2. Non-Sovereign functions
Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the
wrong ful act so fits employees. For example,functions like defence activities, preserving armed forces, maintaining
peace and war, diplomacy are some of the sovereign functions for which the state is not liable.
Non Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.
In Peninsular and oriental steam navigation company v. Secretary of State for India, 1861 5 H.C.R it was held that, the
East India Company would not have been responsible for the act if it had been carried out in the execution of a
sovereign function; however, if the function had been one that could have been carried out by a private individual
without any delegation of authority by the Government, the company would have been responsible.
In state of Rajasthan v. Vidyawati A.I.R 1962 S.C. 933, According to the Supreme Court, the State is no longer a police
state; instead, it has evolved into a welfare state and is gradually turning into a fully fledged socialist state. It would be
excessive to assert that the state should be immune from the repercussions of tortious acts committed by its employees
while they were employed given the scope of the state’s actions, which not only involve the use of sovereign powers but
also its powers as employers in numerous public sectors.
However, In Kasturilal v. State of U.P AIR 1965 S.C. 1039, Due to the fact that the government representatives were
exercising their sovereign authority, the state was not held accountable. The question to ask is whether the tortious act
was committed by a public servant while performing statutory duties that are ultimately based on the delegation of
sovereign powers of the state to that public servant. If so, there may be grounds for a claim for [Link] the answer is
yes, the claim for damages for the loss brought on by such a tortious act would not be valid.
In Shyamal Baran Saha v. State of West Bengal A.I.R 1998 Cal 203, It has been noted that an action taken by a
government employee in the course of exercising statutory authority is defenseable if it may also be described as an
action taken “in the exercise of sovereign powers” or in the performance of official duties. The State was deemed
accountable in the aforementioned case because the prerequisites for immunity from liability were not met.
In State of M.P v. Shantibai 2005 ACJ 313 (MP), it was held that the police officers have duty of care and do not enjoy
sovereign immunity if their act is negligent (open firing), and State was held liable for such act.
Although the decision of the Supreme Court in Kasturilal’s case still holds good, it can be fairly concluded that for
practical purpose its force has been considerably reduced by a number of decisions of the Supreme Court. Without
expressly referring to Kasturilal or distinguishing or overruling this case, a deviation from this decision has been made.
Under the circumstances in which state would have been exempted from liability if Kasturilal had been followed, state
has been held liable in respect of loss or damage either to the property or to a person.
Conclusion
Before 1858, there was no legislation regarding the liability of Government for the wrongful acts of its subjects. The
decision taken to formulate legislation for this purpose is indeed superior. As our nation is a sovereign,secular and
democratic nation,this legislation should be there in order to protect all the above said words. It can be noted that the
theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past,
the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The
U.S.“voting right model”can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the
individual from violating their rights by statute.
Doctrine of Sovereign immunity
Sovereign immunity is a legal doctrine by which the sovereign or state is given immunity from civil suit, criminal
prosecution and legal wrong committed by it. This doctrine gives protection to the state. It is justification for wrongs
committed by the state or its servants. This principle is derived from the legal maxim “rex non potest peccare,”
meaning “the king can do no wrong.” The doctrine of sovereign immunity is based on the Common Law principle that
the King can’t commit any wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot
be responsible for the negligence or misconduct of his servants.
Position in India
Unlike the Crown proceedings Act, 1947(England), we don’t have any statutory provision mentioning the liability of the
state in India. The Law Commission of India in its very first report recommended the abolition of this outdated doctrine.
But for various reasons, the draft bill for the abolition of this doctrine was never passed, and thus it was left to the
courts to decide on the compatibility of this doctrine in accordance with the Constitution of India. The position of state
liability as stated Article 300 of the constitution of India is as under :
(1) The Government of India may sue or be sued by the name of the 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 provisions which may be made by Act of Parliament or
of the Legislature of such State enacted by virtue of powers 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 Provinces or the corresponding
Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution-
○ any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed
to be substituted for the Dominion in those proceedings; and
○ any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State
shall be deemed to be substituted for the Province or the Indian State in those proceedings
So, Article 300 only provides that that Union of India and the State are juristic persons for the purpose of suit or
Proceedings but the circumstances under which they can sue or be sued have not been mentioned.
To know the present position as regards the liability of the State for tortious acts, we have to go back to pre-constitution
days
Sovereign immunity is subject to Fundamental Rights
In peoples Union For Democratic Rights v. State of Bihar, around 600 to 700 peasants and landless persons had
collected for a peaceful meeting without any previous warning by the police or provocation on the part of those
collected, the SP surrounded the gathering with the help of police force and opened fire, as a result of which at least 21
persons including children died any many more were injured. The peoples Union Of Democratic Rights filed an
application before the Supreme court under Article 32 of the constitution, claiming compensation for the victims of the
firing. It was held by the Supreme court that the State should pay compensation of rupees 20000 for every case of death
and rupees 5000 for every injured person.
In Sebastian M. Hongray v. Union Of India, Bhim Singh v. State of J & K, Rudal Sah v. State Of Bihar and Saheli v.
Commissioner Of Police, Delhi, the Supreme court recognized the liability of State to pay compensation, when the right
to life and personal liberty as guaranteed under Article 21 of the constitution had been violated by the officials of the
state.
In Sebastian M. Hongray, the army authorities took two persons in custody at Manipur. The army authorities failed to
produce those two persons in before the court on the writ of habeas corpus. They were supposed to have met
unnatural death while in army custody. The wives of two missing persons were awarded exemplary costs of RS. 1 lakh
each.
In Bhim Singh, the petitioner, who was an M. L. A was wrongfully detained by police and thus prevented from attending
the assembly session. The Supreme court ordered the payment of RS. 50000 by way of compensation to the petitioner.
In the State of A. P. V. Challa Ramkrishna Reddy, the High court held that the state was liable to pay damages of Rs.
40000 to the claimant for injury caused to him by police fire where negligence on the part of the police was established.
In Saheli v. Commissioner Of Police Delhi, the death of a 9-year-old boy was caused as a result of beating and assault by
a police officer. In the writ petition filed by the Women’s Civil Rights Organisation, known as Saheli, the Supreme court
allowed damages to the boy’s mother.
Conclusion
The recent judicial trend regarding the liability of state I’d undoubtedly, in favour of holding the state liable in respect of
tortious acts committed by its servants. In case of wrongful arrest and detention, police atrocities, keeping the
undertrial prisoners in jail for long periods, committing assault or beating up prisoners, etc. the courts have awarded
compensation to victims or to their heirs and legal representatives of the deceased. We can’t stick to the old concept of
sovereign and non-sovereign functions of the state for determining state immunity in modern age world where the
functions of the government in a welfare state are manifold, all of which cannot be said to be the activities relating to
the exercise of sovereign powers. With changed condition and concept of the welfare state, the doctrine of sovereign
immunity in its old form has very less relevance in the modern age where the concept of sovereignty itself has
undergone a drastic change. We need an Act regarding state liability which can fulfil the needs of modern age India.
Vicarious Liability Under Torts
Law imposes certain duties upon its citizens. A breach of these duties is a wrongful act. When a person breaches duty
imposed by civil law in contrast to criminal law or civil wrongs such as breach of contract or breach of trust, he commits
a breach of Tort law. Tort is primarily a civil wrong, a breach of general legal rights vested in another.
In the common course of law, a person who commits the crime, serves the time. However, there are some exceptions to
this general rule, one of which is the common law concept of vicarious liability. The term vicarious is derived from the
Latin term "vice" meaning in place of. Etymologically, vicarious liability means 'liability instead' i.e. liability incurred by
one yet suffered or discharged by another. The term 'vicar' is the cognate of vice and means "in the person of" or a
substitute.
In the eyes of law, a man can not be held liable for the acts of another, he would only be held liable for the torts or
wrongful acts committed by him. Under certain circumstances however, a person can be held liable to discharge the
liability of another. When a person discharges liability of another under such circumstances, then he is said to incur a
vicarious liability. Vicarious liability imposes liability on a person other than the wrongdoer is also known as imputed
liability.
It occurs when:
1. A wrongful/ tortious act or omission is committed by one person
2. There exists a relationship of control between the wrongdoer and the tortfeasor
3. When such an act or omission is directly related to the said relationship.
There can be enumerated 3 kinds of relationships, where the concept of vicarious liability can be imposed, namely:
1. The relationship between an Agent and the Principal:
The agent and the principal share a fiduciary relationship i.e. a relationship based on trust. In this relationship, the
principal employs the agent and authorises him to act on his behalf and discharge duties that have been imputed upon
him by the principal. The person who is authorised to act as such is the agent.
The authorisation of the principal can be expressed or implied. If the agent commits a tort in the due course of his
employment or in discharge of his duties, liability can also be imputed upon the principal who authorised such an act in
the first place.
Here, the principal stands in a position of power and control over his agent. Therefore, both the agent and the principal
are joint tortfeasors and their liability is joint and several. The plaintiff has the right to sue both or either.
In, State Bank of India v. Shyama Devi,
The plaintiff's husband had handed over cheques to be deposited in his account to a friend who was an employee of the
defendant bank. No receipts of the deposits were collected and the friend misappropriated the amount. It was held by
the Court that the employee was not acting in his scope of bank employment but as a depositor's friend when he
committed the fraud. Therefore, the defendant bank could not be held liable by vicarious liability.
2. The relationship between a master and his servant:
It is a general rule of law, that if a master authorises or orders certain acts to be performed by his servant, then the
master must be held liable for any tort that the servant commits. Again, here the master stands in a position of control
or authority over the servant who works under his supervision. The master's liability arises because he enjoys the
benefit of acts done by his servant.
However, for the master to be made liable for the acts of his servant the following essentials must be fulfilled:
○ The tort was committed by the servant. The servant is a person employed to fulfill all the duties delegated by his
master.
○ The servant committed the tort in the "course of employment." An act is said to be in the course of employment
when the wrongful act is expressly authorised by the master or if it is a wrongful or unauthorised mode of
performing an act authorised by the master.
3. It is pertinent to note that this liability arises even when the servant acted against the express instructions and for
no benefit of his master. Like in the agent and principal relationship, the liability of the master and servant is joint
and several and both are joint tortfeasors.
However, in cases where a servant acts outside the course of his employment, the master can not be made liable for
his acts merely because he would not have had the opportunity to perform such an act but for being in the master's
service.
Similarly, the master cannot be held liable for the wrongful acts of an independent contractor hired by him. Like a
servant, an independent contractor undertakes to complete a task of its employer however, unlike a servant, he is
not under the supervision or control of his employer and can use independent discretion in discharge of his duties.
Traditionally, the test to determine the difference between a servant and an independent contractor used to be the
"control test". However, modern authorities apply the "hire and fire" test i.e. to check if a person is the pay master
of another and has the right to fire his employee.
4. Liability of partners:
The relationship between partners is that of a principal and agent and the rules of agency also apply to them. All actors
in a partnership act on behalf of each other while representing themselves as a collective. These partnerships can take
forms of firms, companies, a trustee or even a Karta representing a Hindu joint family. Therefore, a partner can be held
vicariously liable for a wrongful or negligent act by another partner under the rules enumerated in Indian Partnership
Act, 1935.
In Hamlyn v Houston & Co. one of the partners of the form, acting within the scope of his authority, attempted to bribe
the clerk of the plaintiff to induce him to commit a breach of his employment contract. It was held by the court that the
other partner can be held vicariously liable for a tort committed by one of the partners.
Basis and justification of the concept of Vicarious Liability
The concept of vicarious liability finds its roots in the following Latin maxims -- "Quit facit per aliumfacit per se"
Literally means, " he who does an act through another is deemed in law to do it himself". This maxim is applicable in the
master-servant and Principal-agent relationships because one of the actors in the relationship is employed by another
specifically to Act on their behalf or perform certain specified acts. Because they enjoy the benefits of acts of another,
they are also liable to accept any liabilities that may ensue in the performance of such acts.
Respondeat superior
Literally means, "let the superior be liable." Here again, the master and the principle enjoy a position of power and
control whereby they can dictate or authorise performance of an act. In these cases, because they hold a position of
superiority, they can be held vicariously liable for the acts of their employees.

Although these maxims elaborate upon the principle and can be said to form its basis yet, they can not dictate the law
itself. These ideas must be combined with policy considerations to give material results.
The doctrine also finds its justification in the following reasons:
1. The presumption that any person employing another on his behalf has "deep pockets" and therefore, can be held
liable as a substitute to the actual wrongdoer to satisfy the claims of one who has been wronged. For example, in a
master servant relationship, the master may be able to satisfy a claim because of his larger pockets or his claim in
insurance.
2. Since the master has a potential financial concern, he will ensure absolute safety and care for his employees and for
others.
3. Since one enjoys the fruits of labour of another, he must also be held liable for any loss caused. He can not be
allowed to accept the benefit and reject the burden of his labour.
Conclusion:
Vicarious liability imposes liability on a person who is not personally responsible for any tortious wrong. It can be
understood as a strict liability on the employer for the acts of his employees. The concept is certainly beneficial for the
victim or the plaintiff in order to get claim and compensation for any damage caused to him.
Strict Liability
It is a kind of liability under which a person is legally responsible for the consequences flowing from an activity even in
the absence of fault or criminal intent on the part of the defendant. It is basically a legal doctrine that holds a party
(defendant) responsible for its actions, without the plaintiff having to prove the negligence or fault on the part of
defendant. When any person involves in ultra hazardous activities such as keeping wild animals, using explosives or
making defective products, then he/she may be held liable if any other person is injured because of that activity, even if
the defendant took necessary precautions and followed safety requirement.
In Rylands v. Fletcher case, the defendant got a reservoir constructed through independent contractor. There were old
unused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When
the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal mines on adjoining land.
The defendant did not know about the shaft and had not been negligent, but he was held liable. This is also called the
'No fault' liability. In the given case, the liability recognised was 'strict liability' i.e. even if the defendant was not
negligent or did not cause any intentional harm, he could still be liable under the rule.
Essentials of Strict Liability
For the application of the rule, the following three essentials should be there:
1. Dangerous Things
According to this rule, the liability for the escape of thing from one's land arises only when the thing collected was a
dangerous thing. In Rylands v. Fletcher, the thing was large water body (reservoir). The rule is also applied to gas,
electricity, vibration, sewage, explosive, etc.
2. Escape
For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the
area outside the occupation and control of the defendant. The case of Read v. Lyons and Co, is an example of no
escape and hence no liability. In this case, the plaintiff was an employee in the defendant's ammunition factory,
while she was performing her duties inside the defendant's remises, a shell, which was being manufactured there,
exploded and she was injured. There was no evidence of negligence on the part of defendant. It was held that the
defendant was not liable because there was no escape of thing outside the defendant's premises. So, the rule of
Rylands v. Fletcher did not apply to this case.
3. Non-natural Use of Land
There should be non-natural usage of land to make the defendant liable. Like in Rylands v. Fletcher case, collecting
large body of water is considered to be non-natural use of land.
 In Sochacki v. Sas, it has been held that having a fire place is natural use of land. Even if there is escape of fire from
the fire place and the plaintiff suffers harm, the defendants were not held liable as there was no non-natural use of
land.
Exceptions to the Rule of Strict Liability
The following exceptions to the rule have been recognised by Rylands v. Fletcher and some later cases:
1. Act of God
Act of God (vis major) was also considered to be a defence against the action of strict liability. If the escape has been
unforeseen and takes place because of super natural forces without any human intervention, the defence of act of God
can be pleaded.
In the case of Nichols v. Marsland, the defendant created artificial lakes on his land by damming up a natural stream.
That year, there was extraordinarily heavy rainfall by which embankment constructed for lake gave way. The rush of
water washed away plaintiff's four bridges. The plaintiff brought an action to recover damage for the same. It was found
out that there was no negligence from defendant's side. The accident was considered an act of God and the defendant
was not held liable.
2. Consent of the Plaintiff
When the plaintiff has consented to the accumulation of the dangerous thing on the defendant's land, the liability under
the rule does not arise. Such consent is implied where the source of danger is for the 'common benefit' of both the
plaintiff and the defendant.
In Carstairs v. Taylor case, the plaintiff hired ground floor of a building from the defendant. The upper floor was
occupied by defendant. Water stored on the upper floor leaked without any negligence on the part of the defendant.
The water destroyed the plaintiff's goods on the ground floor. As the water had been stored for the benefit of both, the
plaintiff and the defendant, the defendant was not held liable.
3. Act of Third Party
If the harm has been caused due to act of a stranger, who is neither the defendant's servant nor the defendant has any
control over him, the defendant will not be liable under this rule. Thus, in Box v. Jubb, the overflow from the
defendant's reservoir was caused by the blocking of a drain by strangers, the defendant was not held liable for that.
4. Statutory Authority
An act done under the authority of State is a defence to an action for tort. The defence is also available when the action
is under the rule in Rylands v. Fletcher. Statutory authority however cannot be pleaded as a defence when there is
negligence.
In Green v. Chelsea Waterworks Co., the defendant company had a statutory duty to maintain continuous supply of
water. A main belonging to the company burst without any negligence on its part, as a consequence of which the
plaintiff's premises were flooded with water. It was held that the company was not liable as the company was engaged
in performing a statutory duty.
5. Plaintiff's Own Default
Damage caused by escape due to the plaintiff's own default was considered to be a good defence in Rylands v. Fletcher
itself. If the plaintiff suffers damage by his own intrusion into the defendant's property, he cannot complain for the
damage so caused.
In Ponting v. Noakes, the plaintiff's horse intruded into the defendant's land and died after having nibbled the leaves of
a poisonous tree there. The defendant was not held liable because damage would not have occurred, but due to the
horse's own intrusion to the defendant's land, damage occurred.
When the damage to the plaintiff's property is not caused much by the 'escape' of the things collected by the defendant
but by the unusual sensitiveness of the plaintiff's property itself, the plaintiff cannot recover anything.
In Eastern and South African Telegraph Co. Ltd. v. Capetown Tramways Co, the plaintiff's submarine cable transmissions
were disturbed by escape of electric current from the defendant's tramways. It was found that the damage was due to
the unusual sensitiveness of the plaintiff's apparatus and such damage won't occur to a person carrying on ordinary
business, therefore, the defendant was not held liable for the escape.
Absolute Liability
The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the exception. In India,
the rule of absolute liability evolved in the case of MC Mehta v. Union of India.
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.
Absolute liability can be derived as, when an industry or enterprise is involved in an inherently dangerous activity or
using hazardous substances and deriving commercial benefit out of them, and such an activity is capable of causing any
damage, then the company officials will be absolutely liable to pay compensation to the aggrieved parties without any
defence. They cannot plead that there was no negligence on their part and reasonable care was taken to prevent such
an accident
In case of Absolute liability, they neither plead defences like 'Act Of God' nor ' Act of Stranger which can be done in case
of strict liability. This defense component primarily differentiate absolute liability from strict liability.
Advancement Of Absolute Liability In India
In India, the rule of strict liability is an accepted doctrine, though rarely enforced in courts. According to the Supreme
court's ruling in the case of M.C Mehta v. Union of India, the 19th-century rule of strict liability was found to be
inadequate to match these modern times due to the growing industrialization lending aid to developmental projects.
As the strict liability rule was subject to many exceptions, the court felt that there was hardly any rule left and hence
this principle was replaced with the absolute liability rule. Ironically, the rule of absolute liability was stricter than strict
liability as it entailed no exception.
This rule clearly holds that if an enterprise engages in a hazardous activity and this activity results in harm to anyone,
the corporation would be held wholly responsible. Thereby, provoking the non-delegable and absolute nature of this
principle.
Essential Conditions In Absolute Liability
1. Hazardous Substance
According to the rules which are established, the liability of a substance escaping from someone's land will come into
light only if the substance is hazardous or dangerous. The substance should be dangerous in that it is harmful and
injurious and can cause damage. In simple words, there should be the use of any Hazardous substance cause such an
accident. It can be poisonous gases, fumes, pollutants, water reservoir, explosives etc.
2. Escape
To held liable the defendant, there should be an escape of a substance or a thing that caused harm or damage from the
land of the defendant or the land which was under the control of the defendant. In other words, the hazardous
substance should escape so that it causes some damage to a victim which give rise to absolute liability. But Escape
within the premise can also be considered for absolute liability.
3. Non- natural use of land
It can be clear from the facts of the case. Storing water for domestic purpose can be natural whereas storing water in
reservoirs in large quantity can be non-natural. Similarly growing plants or trees on land can be natural whereas growing
plants which is poisonous in nature can be unnatural.
4. Mischief
In order to hold a defendant liable, the plaintiff needs to show that some hazardous substance had escaped and caused
some damages.
Cases:M.C. Mehta V.S. Union Of India
Fact Of The Case:
On the fourth and sixth of December, 1985, there was a monstrous spill of oleum gas in Delhi. It happened in one of the
divisions of the Shriram Foods and Fertilizers Industries undertaking, which has a place with the Delhi Cloth Mills, Ltd. A
few group were injured in this assault, and one individual passed on, who turned out to be a lawyer working in the Tis
Hazari Court. The attorney M.C. Mehta himself documented a writ request as a Public Interest Litigation (PIL) for the
situation.
This was not the first instance of gas spillage in Quite a while that prompted numerous causes. The primary concern was
that assuming severe obligation enactment was rehearsed, any of these glitches coming about because of the activities
of those huge organizations would straightforwardly go under the exceptions to the previously mentioned
responsibility. Thus, they will pull off no fault for the harm they do over the span of their hazardous activity.
It would not exclusively be low to the individuals who have endured because of the harm, however it would likewise
give the feeling that huge partnerships are excluded to obligation.
Judgement: Following the Court's consideration of the above questions, it decided to develop a new rule; the statute of
absolute responsibility, as formulated by (then) Chief Justice of India, P.N. Bhagwati. This new law was a more
modernised, recent version of its predecessor, strict liability, but it lacked the exemptions.
Absolute Liability Vs. Strict Liability
1. The magnitude of the destruction: In absolute liability, the destruction is mass destruction, while in strict liability,
this destruction is limited to an extent.
2. Defence against the Tort: In Absolute Liability, there is no defence whereas, in strict liability, the tortfeasor can set
the defence(the act of God is one of them).
3. The doctrine of strict liability has some exceptions which can be taken into consideration. Act of God, the act of the
third party etc. are these exceptions and can be applied if any of this is true in the case of the defendant whereas in
the case of absolute liability there is nothing like exception provided to the industries involved in activities of the
hazardous substance.
4. In absolute liability, the degree of damages depends on the greatness, capacity and financial capability of the
company or the organization which caused the damage, whereas, in strict liability, compensation has to be paid as
per the nature and amount of damage caused.
5. According to the principle of absolute liability, the element of escape is not crucial. In other words, the rule of
absolute liability should be applied to those injured in the premise and person outside, which is not in the case of
strict liability
Can any defence be brought against absolute liability?
No defence can be brought against a case where strict liability is applied. This makes it different from strict liability
where defences like Act of God and Act of the third person can be applied.
Rights, Identity and Protections for the Unborn Child in Indian Law
A child still in the womb is unborn child. The Transfer of Property Act, 1882 and the Hindu Succession Act, 1956 laws in
India mention the unborn child and have created its legal identity by fiction. Although there is no specific legislation
defining the rights and position of an unborn child, the state must intervene in inheritance cases once the unborn child
is viable. Nonetheless, the Medical Termination of Pregnancy (MTP) Act aims to limit abortions beyond the 20-week
timeframe. Legal hurdles exist for such procedures.
The voiceless, defenceless child in the womb falls under the protection of Article 21 of the Constitution, granting them
the right to life. Upon reaching viability, particularly after 20 weeks, the state's parens patriae power extends to
safeguarding the foetus's wellbeing. It is the State's duty to ensure the safety and liberty of those who can't fend for
themselves, and this responsibility naturally encompasses the unborn child.
Under Indian law, provisions have been made for an unborn child that grant it a legal personality through a form of legal
fiction. A person in the womb is not considered a child, which is important to note. Only when the child is born alive will
it enjoy a legal status.
It is possible to transfer property for the benefit of an unborn child, thanks to the Transfer of Property Act. The process
involves establishing a trust.
In laws governing inheritance in India, it is permissible to establish a stake for a yet-to-be-born offspring in a specific
asset. Nevertheless, said stake can solely be endowed once the child has been delivered alive.
Under Mitakshara Law, coparcenary property in a HUF includes an interest for an unborn child.
If a woman prisoner sentenced to death happens to be carrying a baby, the act of execution is delayed until the
offspring gets a chance to see the world. This law is enshrined in the Code of Criminal Procedure, 1973.
Acknowledged by the U.S. Supreme Court in Roe v. Wade, the state's vested interest in preserving foetal life heightens
as the pregnancy develops. While it didn't specify the inception of life, the third trimester marks a significant point in
the state's obligation. The Indian Supreme Court follows suit with the viability principle outlined in paragraph 23 of the
Suchita Srivastava v. Chandigarh Administration (2009) ruling.
The year 1948 saw the birth of the Universal Declaration of Human Rights, which acknowledged that all human beings
have equitable and incontestable rights. A landmark affirmation, the declaration established an elevated status for each
person regardless of circumstances such as social standing or lifespan. Featured prominently in the UDHR's opening
preambular paragraph is the idea of this valuing of every single individual.
Under the ICCPR, Article 6 ensures that pregnant women should not be executed as a means of protecting innocent
unborn children. This article highlights the significance of safeguarding the wellbeing of these foetuses, who have
caused no harm themselves.
In 1997, the country acknowledged the significance of international and human rights norms by ratifying settled law
(Vishaka v. State of Rajasthan). This law mandates that such norms be interpreted in line with our fundamental rights.
Section 20 in The Hindu Succession Act, 1956:
Without a will, if an individual passes away prior to a child's birth but the child is born healthy and alive afterward, that
child still obtains the same inheritance as if they were born before. The inheritance is seen as granted at the moment of
the individual's passing.
Section 20 of the Hindu Succession Act governs the rights of the foetus. It gives the born child and the baby in the
mother's womb equal status and they both have the same right on the inherent property of the deceased.
Indian Penal Code, 1860:
Depending on the severity and intention behind the crime, the penalties for Sections 312-316 of the Indian Penal Code
(IPC) can range from seven years to life imprisonment for fourteen years and fine. These sections specifically target the
miscarriage and death of an unborn child, providing a legal framework for addressing such events.
Code of Criminal Procedure, 1973:
Section 416 of CrPC must be considered when a pregnant woman is sentenced to death and the unborn child's fate is at
stake. The options are limited to either delaying the execution or reducing the sentence to life imprisonment depending
on specific circumstances.
Section 6 in The Limitation Act, 1963:
The 1963 Limitation Act's Section 6 (5) has a unique interpretation of "minor," as it encompasses even an unborn foetus.
Court Judgments:
1. For the bestowal of a gift upon an unborn individual, the Supreme Court stated in Tagore v. Tagore, (1872) I 1A
Suppl. 47, that a developing foetus is considered a living being. It's necessary to recognize, however, that this legal
determination only pertains to the act of gift-giving for an unborn child.
2. The Court in the case of Jabbar v. State AIR 1966 All 590, held that an unborn child who has completed seven
months of development in the mother's womb can be considered a person. Essentially, this means that the foetus
can be classified as a person if its body has developed to the point of viability.
3. The Supreme Court upheld their commitment to unborn children by rejecting a woman's request to end her 27-
week-old pregnancy. Despite her pleadings, the court maintained their stance. Denying permission for medical
termination, the bench of Chief Justice DY Chandrachud ruled that the pregnancy had gone beyond the 24-week
limit. "Since there is no immediate threat to the mother and no detectable foetal abnormality, allowing for abortion
would breach both sections 3 and 5 of the Medical Termination of Pregnancy (MTP) Act," reported
[Link] on October 16th, 2023.
4. The Supreme Court of America, in the Webster v. Reproduction Health Services case of 1989, upheld a Missouri
Statute stating that unborn children have a protectable interest in life, health, and well-being. This law also declares
that the life of every human being starts at conception.
5. The Court, in the case of Davis v. Davis (1989) 15 FLR 2097, made the decision that conception marks the start of
human life according to the law.
Conclusion:
The conflict between parental rights and the legal standing of unborn offspring continues to persist in the realm of tort
law. Compensation was previously prohibited by courts when a foetus was harmed. But over the past century, U.S.
courts and legislatures have expanded the reasons for seeking damages in instances of prenatal injury and foetal death.
Today, many places permit legal action to be taken in such occurrences, except for nonviable foetuses. The issue
remains a topic of debate among jurisdictions.
The notion of viability should not be the sole determining factor for granting parents the right to seek legal recourse
following a foetus' wrongful death. Judges must evaluate each case on its own terms, and not be bound by the
capricious concept of when a foetus becomes viable before allowing such claims. Rather than categorically denying
nonviable foetuses their potential right to legal action, cases should be treated uniquely. When a foetus perishes due to
injury before birth, questioning its viability is pointless as children who are born following such an event will have no
issue with viability. In circumstances like this, the notion of viability is irrelevant.