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Theory of Liability

Jurisprudence-II

Submitted To:
Submitted by:
Mr. Hakim Yasir Abbas

Jaya Sharma
Section-A,
B.ALLB (Hons)

CONTENT
1.
2.
3.
4.
5.
6.
7.

INTRODUCTION
MEANING OF LIABILITY
KINDS OF LIABILITY
CIVIL AND CRIMINAL LIABILITY
REMEDIAL AND PENAL LIABILITY
THEORY OF PENAL LIABILITY
PHYSICAL CONDITIONS OF LIABILITY
i. MENS REA
ii. WRONGFUL ACT
iii. NEGLIGENCE
8. CAUSATION
9.
MEASURE OF CRIMINAL LIABILITY
10. MEASURE OF CIVIL LIABILITY
11. VICARIOUS LIABILITY
12.STRICT LIABILITY
13.EXEMPTION FROM LIABILITY

Introduction
Theory of Liability

One of the most significant words in the field of law, liability means legal respon
sibility for one's acts or omissions. Failure of a person or entity to meet that resp
onsibility leaves him/her/it open to a lawsuit for any resulting damages ora court
order to perform (as in a breach of contract or violation of statute). In order to wi
n a lawsuit the suing party (plaintiff) must prove the legal liability of the defenda
nt if the plaintiff's allegations are shown to be true.
This requiresevidence of the duty to act, the failure to fulfil that duty, and the co
nnection (proximate cause) of that failure to some injury or harm to the plaintiff.
Liability also applies to alleged criminal acts in which the defendant may be resp
onsiblefor his/her acts which constitute a crime, thus making him/her subject to
conviction and punishment.
Liability according to the blacks law dictionary means The state of being bound
or obliged in law or justice to do, pay, or make good something;
legal responsibility.1
In other words liability is exposedness to the sanctions of the law. It is incurred
by the commission of a wrong and consists in those things which a person must
do or suffer for having committed a violation of his duty. In other words in
modern civil societies,the rights and duties of individual are regulated by the
law of the land. A breach of these rights and duties is called a wrong. One who
commits a wrong is said to be liable for it. It is thus evident that liability arises
from a wrong or the breach of a duty in law.
Liability has been defined by different scholars differently:
According to Salmond: He defines liability or responsibility as Vinculum Juris i.e
the bond of necessity that exists between the wrong-doer and remedy of the
wrong.
According to Austin: Liability consists in those things which a wrongdoer must
do or suffer. It is ultimatum of law and has its source in the supreme will of the
State. Liability arise from a breach of duty which may be in the form of an act or
omission. He prefers to call liability as imputability. To quote him,those certain
forbearances, commissions or acts, together with such of their consequences,
as it was the purpose of the duties to avert, are imputable to the persons who
have forborne, omitted or acted. Or the Plight or predicament of the persons
who have forborne, omitted or acted, is styled imputability.

1Wood v. Currey, 57 Cal. 209; McElfresh v. Kirkendall, 36 Iowa, 225; Benge v. Bowling, 100 Ky. 575,
51 S. W. 151; Joslin v. New Jersey Car-Spring Co., 36 N. J. Law, 145.

According to Markby: The word liability is used to describe the condition of a


person who has a duty to perform. Liability implies the state of a person whom
has violated the right or acted contrary to duty.

KINDS OF LIABILITIES
Liability can be classified in two ways. In the first place it can be civil or criminal,
and in the second place either remedial or penal.
Civil and Criminal Liability:
Civil liability consists in enforcement of the right of the plaintiff against the
defendant in civil proceedings whereas in the case of criminal liability, the
purpose of the law is to punish the wrongdoer. 2 According to Salmond, the
distinction between criminal and civil wrong is based not on any
Difference between civil and criminal liability is as follows
1. Crime is a wrong against the society but a civil wrong is a wrong against a
private individual.
2. The remedy for a crime is punishment but the remedy for civil wrongs is
damages.
3. The proceedings in case of crime are criminal proceedings but in case of a
civil wrong they are civil proceedings.
4. In a civil wrong, the liability is measured by the wrongful act and the
liability depends upon the act and not on the intention while liability in a
crime is measured by the intention of the wrongdoer.

Remedial and Penal Liability:


Where the State enforces a right that is due to the plaintiff and its purpose is not
the punishment of the defendant, the liability is regarded as remedial. If,
however, is the purpose of the law is wholly or partly the punishment of the
wrongdoer, the liability is described as penal. The distinction between civil and
criminal liability is not identical with that between remedial and penal liability.

2
Fitzgerald P.J.:Salmond on Jurisprudence,(12 th ed.) p.349

It is to note that Criminal Liability is always penal, for the purpose of criminal
proceedings is the punishment of the offender. Civil liability, however, is not
always remedial, for ,though the immediate object of civil proceedings is
compensation in some cases there is also the ulterior purpose of punishment of
the wrongdoer.

Theory of Remedial Liability:


The theory of remedial liability prents little difficulty. It might seem at first sight
that, whenever the law creates a duty, it should enforce the specific fulfilment of
it. There are, however, several xases where, for various reasons, duites are not
specifically enforced. They may be classified as follows:
1. In the first place, there are duties of imperfect obligation-duties the
breach of which gives no cause of action, and creates no liability at all,
either civil or criminal, penal or remedial. A debt barred by the statute of
limitations is a legal debt, but the payment of it cannot be complled by
any legal proceedings.
2. Seccondly, there are many duties which from their nature cannot be
speciafically enforced after having once been broken. When a libel has
already been published, or an assult has already been committed, it is too
late to compel the wrongdoer to perform his duty of refraining from such
acts. Wrngs of this description may be termed transitory, once committed
they belong to the irrevocal past. Others however are continuing for
example the non-payment of a debt, the commission of a nuisance, or the
dentition of anothers property. In such cases the duty violated is in the
nature capable of specific enforcement, notwithstanding the violation of
it.
3. In the third place, even when the specific enforcement of a duty is
possible, it may be or be deemed to be, more expedient to deal with it
solely through criminal law, or thrugh the creation and enforcement of a
substitutive sanctioning duty of pecuniary compensation. It is only in
special cases, for example, that the law will compel the specific
performance of a contract, instead of the payment of damages for the
breach of it.

Theory of Penal Liability:


The general conditions of penal liability are indicated in the maxim actus non
facitreum, nisi mens sit rea, ie, the act alone does not amount to guilt, it must
be accompanied by guilty mind. For penal responsibility to be imposed two
conditions are to be fulfilled1. Doing of some act by the person to be held liable. A man is responsible
only for the wrong done by himself not by others.

2. Presence of guilty mind or mens rea with which the act is done.
A man is responsible for those wrongs which he does either wilfully or
recklessly. According to Salmond, this generalisation have provisions penalising
mere negligence, even though this may have resulted from mere inadvertence.
Second qualification is that of strict liability, where guilt may exist without
intention, recklessness or even negligence.3

Physical Conditions of Liability: Basis of Liability


1. The first condition is the actus reus ie a guilty act which Salmond calls the
physical or material conditions of liability. The first requisite before
punishment can be infilicted is an act.
a) Acts 4: The term act is not capable of being defined with any great
precision, since in ordinary language it is used at different times to
points different contrasts. Acts may be contrasted with natural
occurences, with thoughts, with omissions or with involuntary
behaviour. And in any rational system of law we shall except to find
liability attaching to the act rather than its opposite.
b) Omissions, on the other hand, may attract liability 5. An omission
also called as negative acts consists in not performing an act which
3
Sir John Salmond regarded inadvertent negligence as form of mens rea. In so far as it is
useful to distinguish crimes of strict liability as crimes requiring no mens rea, it is better
to include negligence along with intention and recklessness under general concept.

4
Dias, Jurisprudence (2nd ed.), Chap. 10; Paton, A textbook of Jurisprudence (3 rd ed.),
Chap. 13; Fitzgerald, Voluntary and Involuntary Acts in Oxford Essays in Jurisprudence
(ed. Guest), 1; Hart, The Ascription of responsibility and Rights (1948-1949) 49
Proc.Arist.Soc.171; Hart, Acts of Wills and Responsibility in The Jubilee Lectures (ed.
Marshall), 115.

is expected of you either because you normally do it or because you


ought to do it, and it is the latter type of omission with which the
law is concerned. But while omission incur legal liability where there
is a duty to act, such a duty will in most legal systems be the
exception rather than the rule, for it would be unduly oppressive and
restrictive to subject men to a multiplicity of duties to perform
positive acts. It is for this reason that right in rem, which are rights
against everyone, are negative and corresponds to duties not to do
something rather than to duties to confer positive benefits on the
holder of such rights.
c) The most important distinction for legal purposes, however is that
between voluntary and involuntary acts. Examples of the latter are:
i) activities outside normal human control, e.g, the beating of ones
heart; ii) automatic reflexes, such as sneezes and twitches, which,
though normally spontaneous, can sometimes with difficulty be
controlled; and iii) acts performed by persons under hypnosis or in
the course of a fit of automatism. If the act is willed or deliberate, it
is a voluntary act.
d) Another attempt to provide an account of what distinguishes
voluntary from involubtary acts is made by the theory which regards
an act being divisible into i) a willed muscular contraction ii) its
circumstances and iii) its consequences.6 In its true sense a
voluntary act is said to consist in a willed muscular contraction,
which incurs moral or legal liability only by virtue of the
circumstances in which it is committed or the consequences which it
produces. An involuntary act is regarded therefore as one where the
muscular contraction is not wille, its involuntariness constisting
precisely in this absence of willing.
e) Intentional and Unintentional Acts: Intentional act means an act
which is forseen and is desired by the doer of the act. Unintentional
act is that act which is not forseen or desired or it is not a result of
any determination
5
Hughes, Criminal Omissions (1957-58) 67 Yale L.J.590.

6
This theory, derived from Thomas Brown, was held by Austin, Stephen and Holmes
amongst others,and has greatly influenced criminal law theory on this point. Austins
Lectures on Jurisprudence, Lecture 18; Stephen, A General View of the Criminal law of
England, Chap. 5; Holmes, The Common Law, 54,91.

f) Positive and Negative Acts: When the wrong doer does an act which
he should not do, it is a positive act whereas when the wrongdoer
does not do an act which he should do, it is a negative act. Mental
passivity signifies an internal negative act while mental activity
shows an internal positive act. For example A man who, seeing a
drowning person, thinks whether to rush for help or not, he is said to
have committed an internal positive act as soon as he arrives at the
decision to rush towards to help the drowning person. If he rushes to
help, his physical act is called an external positive act, but if he sits
quiet and decides not to move for providing help, this act of sittin
quiet is an external negative act7
g) Every wrong is an act which is mischievous in the eye of the law- an
act to which the law attributes harmful consequences. These
consequences, however are of two kinds, being either actual or
merely anticipated:
I. Damnum Sine Injuria : Although all wrongs are mischievous
acts but all mischievous acts are not wrongs. All damage
done is not wrongful. Such wrongs where damage is done
without injury is called Damnun Sine injuria. Injury signifies
an act contrary to law or violation of a legal right. Salmond
says that cases of damnum sine injuria falls under two headsi) Cases in which the harm done to the individual is a gain to
the society at large, therefore, such acts are not actionable.
For example, competitors do each other harm but not injury.
ii) cases in which, although real harm is done to the
community, yet, owning to its triviality, or to the difficulty of
proof, or for any other reason, it is considered in expedient to
attempt its prevention by the law. The mischief is of such a
nature that the legal remedy would be worse than the
disease.8
7
Dr Sethna, Jurisprudence, p417.

8
In the sphere of criminal law only certain acts are made crimes, all other harmful kinds
of conduct belonging to class of damnum sine injuria. It is disputed whether a similar
principle holds true of tort, or whether there is a general theory of tortious liability for
harmful acts. Winfield, textbook of the law of tort (7 th ed.), 13; Goodhart, Foundation of
tortious Liability; Williams, Foundations of Tortious Liability(1939).

II.

Injuria sine damnum: Converse of damnum sine injuria is


the maxium of Injuria sine damno which says that there are
certain acts which though not harmful, are actionable. The
example of Ashby v White9 can be considered here which
Illustrates injuria sine damno very well. In this case, in a
parliamentary election the plaintiff was wrongfully prevented
by the defendant officer from casting her vote. Although the
candidate to whom plaintiff wanted to vote won the election
and no actual damage was suffered by her but due to
malicious behaviour of the defendant which prevented the
plaintiff from exercising her statutory right of vote in the
election, the court awarded 1 euro by way of recognition of
plaintiffs legal right.

Mens rea: Second condition of liability is mens rea


The conditions of the penal liability are sufficiently indicated by the maxim,
Actus non facitreum, nisi mens sit rea. A man is responsible, not for his acts in
themselves, but for his acts coupled with the mens rea or guilty mind with which
he does them. Before imposing punishment, the law must be satisfied of two
thing: first, that an act has been done which by reason of its harmful tendencies
or results is fit to be repressed by way of penal discipline; Secondly, that the
mental attitude of the doer towards his deed was such as to render punishment
effective as a deterrent for the future, and therefore just. The form whichmens
rea assumes will depend on the provisions of the particular legal system.
Criminal liability may require the wrongful act to be done intentionally or with
some further wrongful purpose in mind, or it may suffice that it was done
recklessly; and in each case the mental attitude of the doer is such as to make
punishment effective. If he intentionally chose the wrong, penal disciplne will
furnish him with a sufficient motive to choose the right instead, in the future. If,
on the other hand, he committed the forbidden act without wrongful intent, but
yet realising the possibility of harmful result, punishment will be an effective
inducement to better conduct in the culture.
9
(1703) 1 ER 417.

Yet there are other cases in which, for sufficient or insufficient reasons, the law
is content with a lower form of mens rea. This is the case as was already
noticed, with crimes of negligence. Wrongs which are thus independent of fault
may be distinguished as wrongs of strict liability. So we have three categories i)
Intentional or reckless ii) wrongs of Negligence iii)wrong of strict Liability

Negligence:
Negligence constitutes an independent basis of torts liability. 10 According to Winfield,
negligence as a tort is the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff. Thus, to establish negligence, a plaintiff
(the person injured) must be able to prove or demonstrate in court that the
defendant (the person being sued). There are also two type of definition derived
from two cases which are as follows :-

i)

Heaven v. Pender, (1883) 11 QBD 503


Negligence defined as an actionable negligence consists in the neglect
of the use of ordinary care or skill towards a person to whom the defendant owes
the duty of observing ordinary care and skill by which neglect the plaintiff has
suffered injury to his person or property.

ii)

Union of India v.Hindustan Leaver Ltd., AIR 1975 P&H 259


Negligence is a breach of duty to take care remitting in damage to one whether to
person or property.

There are three main essentials of negligence as follows which should be proved before a
defendant can be held liable for negligence :i)

Duty of care;

ii)

Breach of duty; and

10
David G. Owen, Professor of Law.Howstra Law Review. University of South Carolina.

iii)

Remoteness of damage.

If any of these elements are missing, a defendant will not be liable for negligence.

Normally the question of existence of a duty situation in a given case is decided


on the basis of existing precedents covering similar situations. It is now well
settled that new duty situations can be recognized. There are several cases in
which the duty of care is described.
In Donoghue v. Stevenson, the case is described as Neighbour Principle. In
that case Lord Atkin laid down the general principle of foresee ability and
proximity applicable in solving cases presenting the existence or otherwise of a
new duty situation in the following words: You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to
be, persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplations as being so affected when I am
directing my mind to the acts or omissions which are called in question.
Whereas in Hedley Byrne & Co. Ltd. v.Heller & Partners Ltd.11, it was held that
the law will imply a duty of care when a party seeking information from a party
possessed of a special skill trusts him to exercise due care and that a negligent, though
honest, misrepresentation in breach of this duty may give rise to an action for damages
apart from contract or fiduciary relationship.
Duty of care also should have the principle of foreseeability and proximity. The
case that could be referred is Madhya Pradesh Road Transport Corporation
v.BasantiBai.12This case is about the driver of the appellant was stabbed by a ruffian
while going to joint his duty in early hours of the morning. There was a communal
riot in the city and the authorities had promulgated curfew order. The question before the
Court was whether the appellant was negligent in not providing adequate arrangement for
11
[1964] AC 465

12
1971 IILJ 273, MP

the safety of the deceased while he was going to join his duty. On applying the
principle of foreseeability and proximity, the appellant were held liable.
The second element of the tort of negligence is the misconduct itself, the
defendants improper act or omission. Normally referred to as the defendants
breach of duty, this element implies the preexistence of a standard of proper
behaviour to avoid imposing undue risks of harm to other persons and their
property, which circles back to duty.13 To determine whether there is a breach of
duty, the court will take account of the following factors :i)
the likelihood of harm;
ii)
the seriousness of the risk and the risk of serious injury;
iii)
the usefulness or importance of the defendants activity when the alleged
negligence occurred; and
iv)
the relationship between the risk and the measures taken.
For the likelihood of harm, case that can be referred is Bolton v.Stone.14In this
case, the plaintiff was standing on the highway when she was injured by a ball
from the defendants cricket club. She failed in an action against the club, since
the probability of such an injury was not foreseeable by a reasonable person because balls
had only been hit outside the ground on six occasions in twenty-eight years.
The seriousness of the risk and the risk of serious injury can be referred to Paris
v.Stepney Borough Counci.15 The plaintiff was a one-eyed mechanic who was
totally blinded while working under the defendants vehicle by a splinter
of metal falling into his good eye. The court held that although it was not normal
practice to provide goggles to normally sighted workers, a higher duty of care was owed to
this one-eyed employee, and the plaintiff obtained damages.
13
David G. Owen, Professor of Law. Howstra Law Review. University of South Carolina.

14
[1951] AC 850

15
[1951] AC 367

As for the social importance of the defendants activity at the relevant time,Watt
v.Hertfordshire County Council16case of can be referred. This case is about a fireman
was injured by a jack falling from a lorry not equipped to carry such heavy equipment. The
lorry was the only available transport to take the jack to the scene of an accident, where a
woman was trapped in the wreckage. The local authority was held not liable. Lord Denning
stated: one must balance the risk against the end to be achieved and the commercial end
to make a profit is very different from the human to save life or limb.
For the relationship between the risk and the measures taken, the case ofLatimer v.
A.E.C. Ltd17can be referred.In this case, an exceptional storm flooded a factory, leaving
the floor covered with as limy mixture of oil and water. In spite of precautions to
make the floor safe, the plaintiff was injured and alleged negligence for failure
to close down the plant, but the court held that the risk did not justify such extreme
measures.
Last but not the least is the remoteness of damage. The negligent act of the defendant
must cause damage to hold him liable for negligence. However there are cases where the
claimant thinks that the defendants negligence has caused the damages but the law does
not see it that way.
For example, in the case of Hunter v. Canary Wharf Ltd and London Docklands
Development Corporation (1997), there was a construction of a big tower block (a large
business and shopping development) known as Canary Wharf in East London. Because of
this construction, there was excessive dust in the area. The local residents sued the
defendant, and one of the issues was whether excessive dust could be considered as
damage to property. The Court of Appeal concluded that the mere deposit of excessive
dust was not damage because dust is an unavoidable incident in urban life. There must
some physical chance to property due to the dust before it can be considered as damage
(for eg, dust causing damage to electrical equipment).
It can be concluded that negligence is logically divisible into three main
elements which are duty of care, breach of duty and remoteness of damage.
Without any of these elements a defendant could be held liable for negligence.
16
[1954] 1 WLR 835

17
[1953] AC 643

Causation18:
A system of law, as we have seen, may hold a man liable either for performing
acts which are dangerous in tendency or for causing actual damage or injury. In
the latter type of case liability is imposed on him for the damage in fact
resulting from his act; he will not normally be held accountable for damage in no
way caused by his own behaviour. Causation then is a concept which plays an
important part in legal discourse.
It is, however, a difficult concept, and the common law cases on causation do
not make the discussion of the problem any easier. For though courts readily
agree that such questions must be decided on common-sense principles rather
than on the basis of abstruse philosophical theory, the language which they use
in actually deciding them is often of a highly metaphorical and figurative
character, owing little to common sense or common speech. So intractable at
times has the problem of causation seemed, that there is a temptation to
suggest that lawyers should discard inquiries into causation and concentrate
rather on the question of responsibility. Instead of investigating whether the
defendant's act was the cause of the plaintiff's injuries, they should inquire
whether the defendant ought to be held responsible; and this type of question
can be answered, it is said. according to policy and without regard to the
conceptual difficulties inherent in the notion of cause19
Tempting as this suggestion is, it offers hopes which are in fact illusory. It is hard
to see how questions of responsibility can he decided without first deciding
questions of causation. If A carelessly drops a lighted match on the floor of B's
house and the house is burned to the ground, we should not hold A liable if it
transpired that C had simultaneously been setting fire to another part of the
house or that the house had at that very moment been struck by lightning. If A
18
The leading monograph on the subject is Hart and Honore, Causation in the Law; see also by the same authors
articles of the same title in (1956) 72 L.Q.R. 58, 260, 398, and further discussion by Williams in " Causation in the
Law " (1961) C.L.J. 62.

19
See expressions of this view quoted by Hart and Honors (1956) 72 L.Q.R. 58. See also Hart and Honord, Causation
in the Law, 3-7, 83-1023. 230-276.

is to be held responsible for the damage to B's house, he must first be shown to
have caused it. Indeed the idea of compensation is that of making amends for
damage which one has caused to another, not that of being an insurer of all the
damage which may befall that other from any cause. Similar principles obtain in
the criminal law. If X shoots at Y and Y falls dead, we should not, despite X's
wrongful intention, convict him of the murder or manslaughter of Y if we found
that the death had been caused by a shot fired from some other gun or by a
sudden
heart
attack
occurring
before
the
shot
was
fired.
But while in criminal and civil cases responsibility often In often depends on
causation, no rule of logic dictates this principle logic other solutions are equally
possible. In civil law a man could be held liable to another whenever he is
careless and regard-less of whether he has caused damage to him or not. In
criminal law a man could be held equally guilty whether be has succeeded or
not in his intentions. But this is not the position adopted by the common law.
Now the legal concept of causation is often said to be based on the common
sense notion of cause. On this point three observations may be made. First,
while this notion plays a considerable part in common speech, common speech
itself provides no neat analysis of the concept. We can look to common sense
for the usage of the term cause but not for an explanatory description of this
usage: the latter is to be found by philosophical reflection on such usage.
Consequently in so far as the legal concept is built on the foundation of the
ordinary notion. it is built on a notion which has not been explicitly defined or
analysed by common sense. Secondly, the legal concept, though based on the
ordinary notion, will diverge from it on account of the need for lawyers provide
answers to questions for which common sense has no solution. If A wrongfully
loads B's luggage on the wrong tarn and the train is derailed and the luggage
damaged, has A caused this damage? This is not the sort of question which
arises in ordinary day-to-day conversation, nor is it one which could be readily
answered according to the ordinary notion of causation. It is, however, just the
sort of problem that courts and lawyers have to grapple with.
Thirdly, a distinction must be drawn between explanatory and attributive
inquiries, both of which are involved in causal investigations. If a house has
been burnt down, the main point of an inquiry may be to discover how this
happened; if a man is found dead, the post mortem inquiry serves to investigate
what he died of. This sort of explanatory inquiry is complete when all the facts
leading up to the incident have been discovered. The inquiry about the house in
the example above would be complete once ac knew the house was full of
inflammable gas, that a stone was thrown through the window, and that its
impact on the floor inside caused a spark which ignited the gas. The post
mortem would be complete if it was established that the man had been
stabbed, that he had been taken to hospital and injected with an antibiotic to
which he was allergic and that the injection had set up a fatal reaction. But
attributive inquiries begin where explanations leave off. Once we know what
happened to the house, we are now in a position to ask whether the
conflagration was caused by the throwing of the stone. Once we know how the
man died, we can inquire whether the stabbing caused the death. And here the
scientist, the pathologist and the detective can no longer assist, for at this stage

we no longer need more facts; we need to assess the situation in the light of the
facts we have.
Now law courts often have to engage in both kinds of investiga-tion. First,
evidence may have to be heard to establish how the accident happened. Then
in the light of its findings of fact, a court may have to decide whether the
defendant's act or omission should be regarded as the cause of the plaintiff's
damage or the victim's injury ; and it is this second sort of question which constitutes the legal question about causation and which involves the problem of
defining what counts as a cause for legal purposes. Typically the lawyer is
concerned to decide whether, in a case where damage results to B from a
conjunction of A's act and some other circumstance, as in the examples given, A
can be said to have caused the damage. Here the legal problem is to discover
the criteria for asserting that the additional circumstance prevents the act from
being the cause of the damage ; and this is another facet of the general
problem of finding out the criteria for regarding one event as the cause of
another, because where some combining circumstance prevents an act from
qualifying as the cause of some resulting damage, such a circumstance will
usually itself be regarded as the cause.
Ordinarily, where some event results from a combination of factors and we wish
to identify one of these factors as the cause, we fasten on two different types of
occurrence which we tend to regard as causes. We look upon (a) abnormal
factors and (b) human acts (and perhaps those of animals) as causes. If a house
burns down, the fire obviously results from a combination of factors, one of
which is the presence of oxygen. This, however, would not be regarded as the
cause of the fire unless its presence was abnormal in the circumstances. A fire
in a laboratory might be said to be caused by the presence of oxygen, if this was
a part of the laboratory from which oxygen was generally excluded and into
which oxygen was introduced by accident. But what will be considered to be the
cause of the burning of the house is, not the presence of oxygen. But either
some unusual event or circumstance (e.g., an electrical short-circuit) or else
some human act (e.g., the setting fire to the house by some person). Why it is
that abnormal events andhuman acts are regarded as causes par excellence is
more a question for philosophy than for jurisprudence, but where either of such
factors is to be found, it is clear that a special point has been reached by any
investigation. For once either of these has been detected, we have a factor
which we can seek to eliminate from future situations, thereby avoiding such
incidents later on, and part of the point of identifying such factors as causes is
to single them out as final stopping-places of the inquiry.
In law, where we have the typical problem of deciding whether event A is the
cause of event B or whether " the chain of causation has been snapped " by
some novasactusinterveniens, X, we may expect to find that the event X is
regarded as severing the causal connection wherever X is either some abnormal
circumstance or some deliberate human act. If A stabs B and B is taken to
hospital, where, despite the fact that he is shown to be allergic to terramycin, he
is nevertheless injected with a large dose of it, then Isis treatment and not the
stab wound would qualify in common law as the cause of B's death; for the

treatment was quite abnormal in the circumstances20. Or if on his way to


hospital B had been strangled by C, here again A's attack would be prevented
from being the cause; for the cause of the death would now be C's deliberate
act.
Many of the reported cases appear to work on these principles without explicitly
acknowledging them. Where an abnormal circumstance or event is not held to
sever the causal connection, it will usually be found that the circumstance,
though abnormal, was known to the defendant, who sought to take advantage
of
it.
As the law puts it, intended consequences are never too remote. A difficult case
to fit into any theory is that of Re Polemic 21, where the defendants were held
liable for damage resulting from a combination of factors. The defendants'
servant carelessly dropped a plank into the ship's hold, the plank struck a spark,
and the spark ignited petrol vapour whose presence in the hold was
unsuspected. The defendants were held liable for the loss by fire of the ship.
Hart and Honord suggested that while an abnormal circumstance or event
normally " snaps the chain of causation ", an abnormal circumstance will only do
so if its occurrence is subsequent to the defendant's act and not if it is
simultaneous with it. Here the abnormal circumstance, the presence of the
vapour, already existed before the defendants' servant dropped the plank. But
Re Polemic has since been disapproved by the Privy Council in the case of the
Wagon Mound 22, which, it seems, will be taken as depriving the former case of
20
As in the case of R. v. Jordan (1956) 40 Cr.App.R. 152. Cf. R. v. Smith [1959] 2 Q.B. 35, where subsequent
treatment combined with the previous injury to cause the victim's death but where such treatment was not wholly
abnormal and therefore did not operate to break the causal connection between the wound given by the accused
and the victim's death.

21
[1921] 3 K.B. 560.

22
[1961] A.C. 388.

any binding authority in English law23. It seems then that any abnormal
circumstance contributing to the result may sever the causal connection,
regardless of the time of its occurrence. To this there is one exception, enshrined
in the common law rule that you must take the plaintiff as you fir him. If you
wrongfully injure someone and it turns out that he has some condition of which
you are unaware and which renders the injury more serious, you will
nevertheless be held responsible for all the damage suffered. If you wilfully or
negligently bump into a man who, unknown to you, has an egg-shell skull and
who thereby suffers grave injury, you are liable for all the injury suffered. Inhere
the abnormal circumstance consists in a condition of the plaintiff himself, it will
not sever the causal link, for in this respect the lass, takes the view that if you
injure people by negligence or by design, then you act at your peril24.
Cases in which the alleged novas actus inierveniens consists of sonic human
act are often cases in which the defendant contends that the plaintiff himself
caused the damage which he suffered. The decisions on these and other cases
on this problem suggest that through the courts regard a human act by the
plaintiff or some third party as prevailing the defendants act from being the
cause, they will not so regard an act(wether by the plaintiff or a third party) as
severing the casual link if this act was in some way not wholly free. If, as in the
rescue cases, the act was done out of a legal or a moral duty; if the act was
forced on the plaintiff by the danger in which the defendant placed him; or if the
act was an automatic and natural reaction, in such cases it will not suffice to
prevent the defendants act from counting as the cause to the damage.

Measure of Criminal Liability:


We have now considered the conditions and the incidence of penal liability. It
remains to deal with the measure of it, and here we must distinguish between
criminal and civil wrongs, for the principles involved are fundamentally different
in the two cases.
23
Doughty v. Turner Manufacturing Co. Ltd. [1964] 1 Q.B. 518: Smith v. Leech Brain (8 Co. Ltd. [1962] 2 Q.B. 405.

24
Salmon& Torts (14th ed.), 719-720.

In considering the measure of criminal liability it will be convenient to bestow


exclusive attention upon the deterrent purpose of the criminal law,
remembering, however, that the conclusions so obtained are subject to possible
modification by reference to those other purposes of punishment which we thus
provisionally disregard.
Were men perfectly rational, so as to act invariably in accordance with an
enlightened estimate of consequences, the question of the measure of
punishment would present no difficulty. A draconian simplicity and severity
would be perfectly effective. It would be possible to act on the Stoic paradox
that all offences involve equal guilt, and to visit with the utmost rigour of the
law every deviation, however slight, from the appointed tray. In other words, if
the deterrent effect of severity were certain and complete, the most efficient
law would be that which by the most extreme and undiscriminating severity
effectually extinguished crime. Were human nature so constituted that a threat
of burning all offenders alive would with certainty prevent all breaches of the
law, then this would be an effective penalty for all offences from high treason to
petty larceny. So greatly, however, are men moved by the impulse of the
moment, rather than by a rational estimate of future good and evil, and so
ready are they to face any future evil which falls short of the inevitable, that the
utmost rigour is sufficient only for the diminution of crime, not for the extinction
of it. It is needful, therefore, in judging the merits of the law, to subtract from
the sum of good which results from the Partial prevention of offences, the sum
of evil which results from the partial failure of prevention and the consequent
necessity of fulfilling those threats of evil by which the law had hoped to effect
its purpose. The perfect law is that in which the difference between the good
and the evil is at a maximum in favour of the good, and the rules as to the
measure of criminal liability are the rules for the attainment of this maximum. It
is obvious that it is not attainable by an indefinite increase of severity. To
substitute hanging for imprisonment as the punishment for petty theft would
doubtless diminish the frequency of this offence 25, but it is certain that the evil
so prevented would be far out-weighed by that which the law would be called on
to inflict in the cases in which its threats proved unavailing. In every crime there
are three elements to be taken into account in determining the appropriate
measure of punishment.
These are (1) the motives to the commission of the offence, (2) the magnitude
of the offence, and (3) the character of the offender.
1. The motive of the offence: Other things being equal, the greater the
temptation to commit a crime the greater should be the punishment. This is an
25
In fact such a substitution might only diminish the frequency of conviction and punishment, for juries and courts
might well he loth to bring in findings of guilt. See Page, Crime and the Community, 54.

obvious deduction from the first principles of criminal liability. The object of
punishment is to counteract by the establishment of contrary and artificial
motives the natural motives which lead to crime. The stronger these natural
motives the stronger must be the counteractives which the law supplies. If the
profit to be derived from an act is great, or the passions which lead men to it are
violent, a corresponding strength or violence is an essential condition of the
efficacy of repressive discipline. We shall see later, how-ever, that this principle
is subject to a very important limitation, and that there are many cases in which
extreme temptation is a ground of extenuation rather than of increased severity
of punishment.
2. The magnitude of the offence: Other things being equal, the greater the
offence, that is to say the greater the sum of its evil consequences or
tendencies, the greater should be its punishment. At first sight, indeed, it would
seem that this consideration is irrelevant. Punishment, it may be thought,
should be measured solely by the profit derived by the offender, not 17 the evils
caused to other persons; if two crimes are equal in point of motive, they should
be equal in point ofpunishment. Notwithstanding the fact that one of them may
be many times more mischievous than the other. This, however, is not so, and
the reason is twofold.
(a) The greater the mischief of any offence the greater is the punishment which
it is profitable to inflict with the hope of preventing it. For the greater this
mischief the less is the proportion which the evil of punishment bears to
the good of prevention, and therefore the greater is the punishment which
can be inflicted before the balance of good over evil attains its maximum.
Assuming the motives of larceny and of homicide to be equal, it may be
profitable to inflict capital punishment for the latter offence, although it is
certainly unprofitable to inflict it for the former. The increased measure of
prevention that would be obtained by such severity would, in view of the
comparatively trivial nature of the offence, be obtained at too great a
cost.
(b) A second and subordinate reason for making punishment vary with the
magnitude of the offence is that, in those cases in which different offences
offer themselves as alternatives to the offender, an inducement is thereby
given for the preference of the least serious. If the punishment of burglary
is the same as that of murder, the burglar has obvious motives for not
stopping at the lesser crime. If an attempt is punished as severely as a
completed offence, why should any man repent of his kilt executed
purposes?
3. The character of the offender. The worse the character or disposition of
the offender the more severe should be his punishment. Badness of disposition
is constituted either by the strength of the impulses to crime, or by the
weakness of the .Impulses towards law-abiding conduct. One man may be worse
than another because of the greater strength and prevalence within him of such
anti-social passions as anger, covetousness, or malice , or his badness may lie

in a deficiency of those social impulse. and instincts which are the springs of
right conduct in normally constituted men. In respect of all the graver forms of
law-breaking for one man who abstains from them for fear of the law there are
thousands who abstain by reason of quite other indliences. Their sympathetic
instincts, their natural affection, their religious beliefs, their love of the
approbation of others, their pride and self-respect, render superfluous the
threatening of the law. In the degree in which these impulses are dominant and
operative, the disposition of a man is good; in the degree in which they are
wanting or inefficient, it is bad.
In both its kinds !winces of disposition is a ground for severity of punishment. If
a man's emotional constitution is such that normal temptation tufts upon him
with abnormal force, it is for the law to supply in double measure the
counteractive of penal discipline. If he is no made that the natural influences
towards well-doing fall below the level of average humanity, the law must
supplement them by artificial influences of a strength that is needless in
ordinary cases.
Any fact, therefore, which indicates depravity of disposition is a circumstance of
aggravation, and calls for a penalty in excess of that which would otherwise be
appropriate to the offence. One of the most important of these facts is the
repetition of crime by one who has been already punished. The law rightly
imposes upon habitual offenders penalties which bear no relation either to the
magnitude or to the profit of the offence. A punishment adapted for normal men
is not appropriate for those who, by their repeated defiance of it, prove their
possession of abnormal natures26. A second case in which the same principle is
applicable is that in which the mischief of an offence is altogether
disproportionate to any profit to be derived from it by the offender. To kill a man
from mere wantonness, or merely in order to facilitate the picking of his pocket,
is a proof of extraordinary depravity beyond anything that is imputable to him
who commits homicide only through the stress of passionate indignation or
under the influence of great temptation. A bird case is that of offences from
which normal humanity is adequately dissuaded by sorb influences as those of
natural affection. To kill one's father is in point of magnitude no worse a crime
than any other homicide, but it has at all times been viewed with greater
abhorrence, and by some laws punished with greater severity, by reason of the
depth of depravity which it indicates in the offender. Lastly it is on the same
principle that wilful offences are' punished with greater rigour than those which
are due merely to negligence.

26

The preventive function of punishment is an additional reason for sentencing habitual offenders to such
punishments as long terms of imprisonment.

An additional and subordinate reason for making the measure of liability depend
upon the character of the offender is that badness of disposition is commonly
accompanied by deficiency of sensibility. Punishment must increase as
sensibility diminishes. The more depraved the offender the less he feels the
shame of punishment; therefore the more he must be made to feel the pain of
it. A certain degree of even physical insensibility is said to characterise those
who commit crimes of violence; and the indifference with which death itself is
faced by those who in the callousness of their hearts have not scrupled to inflict
it upon others is a matter of amazement to normally constituted men.
We are now in a position to deal with a question which we have already touched
upon but deferred for fuller consideration, namely the apparent paradox
involved in the rule that punishment must increase with the temptation to the
offence. As a general rule this proposition is true; but it is subject to a very
important qualification. For in certain cases the temptation to which a man
succumbs may be of such a nature as to rebut that presumption of bad
disposition which would in ordinary circumstances arise from the commission of
the offence. He may, for example, be driven to the act not by the strength of
any bad or self-regarding motives, but by that of his social or sympathetic
impulses. In such a case the greatness of the temptation, considered in itself,
demands severity of punishment, but when considered as a disproof of the
degraded disposition which usually accompanies wrongdoing it demands
leniency ; and the latter of these two conflicting considerations may be of
sufficient importance to outweigh the other. If a man remains honest until he is
driven in despair to steal food for his starving children, it is perfectly consistent
with the deterrent theory of punishment to deal with him less severely than with
him who steals from no other motive than cupidity. He who commits homicide
from motives of petty gain, or to attain some trivial purpose, deserves to be
treated with the utmost severity, as a man thoroughly callous: and depraved.
But he who kills another in retaliation for some intolerable insult or injury need
not be dealt with according to the measure of his temptations, but should rather
be excused on account of them.

The measure of civil liability:


We have seen that penal redress involves both the compensation of the person
injured and the punishment, in a sense, of the wrongdoer. Yet in measuring civil
liability the law attaches more importance to the principle of compensation than

to that of fault. For it is measured exclusively by the magnitude of the offence,


that is to say, by the amount of loss inflicted by it. Apart from some exceptions 27
it takes no account of the character of the offender, and so visits him who does
harm through some trivial want of care with as severe a penalty as if his act had
been prompted by deliberate malice. Similarly it takes no account of the
motives of the offence; he who has everything and he who has nothing to gain
are equally punished, if the damage done by them is equal. Finally, it takes no
account of probable or intended consequences, but solely of those which
actually ensue; wherefore the measure of a wrongdoer's liability is not the evil
which he meant to do, but that which he has succeeded in doing. If one man is
made to pay higher damages than another, it is not because he is more guilty,
but because he has had the misfortune to be more successful in his wrongful
purposes, or less successful in the avoidance of unintended issues.
Yet it is not to be suggested that this form of civil liability is unjustifiable. Penal
redress possesses advantages more than sufficient to counterbalance any such
objections to it. More especially it possesses this, that while other forms of
punishment, such as imprisonment, are uncompensated evil, penal redress is
the gain of him who is wronged as well as the loss of the wrongdoer.
Further, this form of remedy gives to the persons injured a direct interest in the,
efficient administration of justice-an interest which is almost absent in the case
of the criminal law. It is true, however, that the law of penal redress, taken by
itself, falls so far short of the requirements of a rational scheme of punishment
that it would by itself be totally insufficient. In all modern and developed bodies
of law its operation is supplemented, and its deficiencies made good, by a coordinate system of criminal liability. These two together, combined in due
proportions, constitute a very efficient instrument for the maintenance of
justice.

Vicarious Liability:
The doctrine of vicarious liability generally operates within the law of
torts. It has become well-established in English law and historically has been
called Master and Servant liability. Vicarious liability means liability which is
incurred for or instead of, another. A person is responsible for his own acts. But
there are circumstances where liability attaches to him for the wrongs
27

In certain cases higher damages may be awarded, where the defendant's motives, malice or conduct have
increased the plaintiff's suffering. In others higher damages may be awarded to punish the defendant for his
behaviour. For the difference between aggravated and exemplary damages Cf. Rookie v. Barnard [1964] A.C. 1129.

committed by others. The most common instance is the liability of the master
for wrongs, committed by his servant. In these cases liability is joint as well as
several. The other common example of vicarious liability is the liability of an
employer for the torts of his employees committed in the course of
employment. It is not necessary in such circumstances for the employer to have
breached any duty that was owed to the injured party, and therefore it operates
as strict or no-fault liability. It is possible that the injured party could be either
an employee or a stranger, and the employer can be held vicariously liable in
both situations. The most important element to establishing a case for vicarious
liability is that the wrongdoer be acting as a servant or employee, and that the
wrong done be connected to the employees course of employment. Vicarious
liability can only be imposed if it is proved that the employee was acting in the
course of employment. This criterion is essential, and requires a clear
connection between the employment duties and the employees acts
complained of.
A reason for vicarious responsibility of employers is that employers usually are,
while their servants usually are not, financially capable of the burden of civil
liability. The theory partly owes its existence to the anxiety of the injured person
to find a solvent defendant. Again it is said that the employer should be made
liable because it is he who has set the whole thing in motion.
Chief Justice Shaw of the Massachusetts Supreme Court in the case of farewell
v. Boston and Worcester Rly. Co. Stated that this rule is obviously founded on
the great principle of social duty, that every man in the management of his own
affairs whether by himself or by his agents or servants shall so conduct them as
not to injure another; and if he does not and another thereby sustains damage,
he shall answer for it. If done by a servant in the course of his employment
acting within the scope of his authority it is considered in contemplation of law,
so far the act of the master, that the latter shall be answerable civiliter. The
maxim respondeat superior is adopted in that case from general considerations
of policy and security.
TYPES OF VICARIOUS LIABILITY

1. LIABILITY BY RATIFICATION: An act done for B by A not for himself but


for B though without the authority of B becomes the act of the principle B
if subsequently ratified by B. If one person commits a tort assuming to act
on behalf of another but without his authority and that other subsequently
ratifies and assents to that act, he thereby becomes responsible for it. The
person ratifying the act is bound by the act whether it to be his detriment
or advantage.
Maxims

i. Omnis ratihabitioretrorahitur et mandato priori aequiparatur : every


ratification of an act relates back and thereupon becomes equivalent to a
previous request.
ii. Qui facit per aliumfacit per se: Any person who authorises or procures a
tort to be committed by another is responsible for that tort as if he had
committed it himself. The person authorising is liable not only for the tort
actually authorised, but also for its direct consequences.
Conditions of ratification
1. Only such acts bind a principal by subsequent ratification as were done at
the time on his behalf.
2. The person ratifying the act must have full knowledge of its tortuous
character.
3. An act which is illegal and void cannot be ratified.

2. LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP: Vicarious


liability may arise where the doer of the act and the person sought to be
held liable therefore are related to each other as:
1. Master and Servant.
2. Owner and Independent Contractor.
3. Principal and Agent.
4. Firm and its Partner.
5. Guardian and Ward.
6. Company and its Directors.

CASE OF MASTER AND SERVANT


A servant is a person who voluntarily agrees, whether for wages or not, to
subject himself at all times during the period of service to the lawful orders and
direction of another in respect of certain work to be done. A master is the
person who is legally entitled to give such orders and to have them obeyed.
A master is liable to third persons for every such wrong of his servant as is
committed in the course of his employment. Now, a wrongful act is said to be
done in the course of masters employment if it is- (1) authorised by the master
or (2) a wrongful and unauthorised mode of doing an act authorised by the
master. In other words, to hold a master liable for the wrongful act of a servant
it must be committed in the course of masters business, so as to form part of it,
and not merely coincident in time with it. For torts committed in any manner
beyond the scope of employment, the master is liable if he has expressly
authorised, or subsequently ratified them.

Course of Employment
An employer will only be liable for torts which the employee commits in the
course of employment. Although this is a question of fact in each case, there is
little consistency in the decisions. It is therefore extremely difficult to state the
law simply.
Course of employment is legal considerations of all circumstances which
may occur in the performance of a person's job, especially during a period of
time where specific objectives are given by the employer to the employee are
being fulfilled. The course of employment encompasses the actual period of
employment and the period during which the employee, while on the employer's
premises, prepares to commence or to depart from work, such as by changing
clothes. Employer-sponsored recreational activities are also considered part of
the course of employment when organized, encouraged, or supported by the
employer for business purposes, such as promotion of inefficiency.
For an act to be considered within the course of employment it must
either be authorized or be so connected with an authorized act that it can be
considered a mode, though an improper mode, of performing it. In other words,
an act can be said to be within the realm of course of employment if it is
either an authorized act or a wrongful way of doing an authorized act. If an
employee expressly authorizes an unlawful act, he or she will be primarily liable.
The position is more difficult in cases in which the employer is said to have
authorized a wrongful act by implication.
This 'implied authority' approach seems to have lost currency but it was
accepted in the early 20th century10 and it was even then probably little more
than a means of justifying the outcome which the courts desired.
An employer will usually be liable for acts which are wrongful ways of
doing something authorized by the employer, even if the acts themselves were
expressly forbidden by the employer. The court should determine the
fundamental question of whether the wrongful act is sufficiently related to
conduct authorized by the employer to justify the imposition of vicarious liability.
Where there is a significant connection between the creation or enhancement of
a risk and the wrong that occurs, the employer can be held vicariously liable.
To determine the sufficiency of the connection, the following factors should be
considered:
1.the opportunity afforded for the employee to abuse his power;
2.the extent to which the act is furthered by the employer's aims;
3.the extent to which the act is related to friction, confrontation, or any other
kind
of
tort
4.the extent of the power of the employee over the victim; and,
5.The vulnerability of the potential victims.

This principle was applied in many cases like Rose v.Plenty.12 In this case,
a milkman had been forbidden by his employer to allow young boys to ride on
the milk floats and assist in delivering milk. However, he took a 13-year-old boy
to help him on his round, and the boy was injured through the milkman's
negligent driving. The boy sued both the milkman and the dairy. The Court of
Appeal held that the milkman was carrying out, albeit in a prohibited manner,
the task which he was employed to do, so the employer was liable.

In another case, L im pus v. London General Omnibus Co.13 a bus driver


racing to a stop to collect passengers deliberately obstructed the driver of a bus
of a rival company, overturning the latter's vehicle. This was done despite
express prohibition by his company against obstructing other buses. However,
the defendants were liable. The rationale was that the driver was acting within
the course of his employment at the time; it was immaterial whether his act was
forbidden.

An act in defiance of a prohibition which deals with conduct within sphere


of employment (i.e.: how, when, where etc tasks are performed) will not be
outside the scope of employment -the employee would be doing the right
services but in the wrong way: employer is liable However, a master will not be
liable for the servants negligence in doing something which he was merely
permitted to do and does so for his own purposes. This was seen in the case
Crook v. Derbyshire Stone Ltd.14 it was held that the employer was not liable
when a collision occurred between the employee and a motor cyclist caused by
his negligence. The lorry driver had stopped at a way side caf and crossed one
section of a dual carriage way on foot in order to get refreshment which was an
act done while he was employed and with his employers permission. The act of
getting refreshments was just incidental to his employment

Illustration
ROBBERTS v. SHANKS, (1924) 27 Bom. L. R. 548. (Chauffeurs case).
On alighting from his car, the defendant ordered his chauffeur to take the car
direct to the garage. The chauffeur, however drove the car to his own residence,
took his meals, and whilst driving the car to the garage, negligently drove it into
plaintiffs car and caused damage to it. The defendant was held liable in
damages for, at the time of the accident, the chauffeur was acting in the course
of his employment.
A master becomes liable for the wrong done by a servant in the course of his
employment in the following six ways-

1. The wrong may be the natural consequence of something done by a


servant with ordinary care in execution of the masters specific orders.
2. The wrong may be due to the servants want of care or negligence in
carrying on the work or business in which he is employed.
3. The servants wrong may consist in excess or mistaken execution of a
lawful authority.
Here it must be shown(a) That the servant intended to do on behalf of his master something
which he was, in fact, authorised to do; and
(b)That the act, if done in a proper manner, or under the circumstances
erroneously supposed by the servant to exist, would have been lawful.
4. The wrong may be a wilful wrong, done on the masters behalf and with
the intention of serving his purposes.
5. The wrong may be due to the servants fraudulent act.
6. The wrong may be due to the servants criminal act.

OWNER AND INDEPENDENT CONTRACTER

An independent contractor is one who undertakes o produce a given result


without being in any way controlled as to the method by which he attains that
result. An independent contractor can use his own discretion as to the manner
in which the work for which he is employed is to be executed, whereas a servant
in under the supervision and direction of his master as to the way in which he is
to execute his work.
The general rule is that for the acts and omissions of an independent contractor,
his employer is not liable. There are however exceptions to this rule.
1.
2.
3.
4.
5.
6.
7.

Where the thing contracted to be done is itself unlawful.


Employer retaining control
Legal duty
Damage to another
Implied warranty
Incompetent contractor employed
The rule in Rylands v. Fletcher
Under this rule, the employer is in certain cases involving absolute
liability, responsible for the acts of the independent contractor.

3. LIABILITY BY ABETMENT: In actions of torts, those who abet the


tortuous acts are as much liable as the tort-feasors themselves.

Vicarious Liability of State

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 the state legislature 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 if this constitution had not been
enacted.
Government Liability in tort:
(a) The ruling principle is that Government is not liable for torts of its
employees committed in the course of performance of sovereign
functions.
(b)The theoretical doctrine as per (a) above is still adhered to, but it is being
applied in a liberal manner and the courts interpret sovereign narrowly,
as is shown by recent law.
A suit lies against the government for wrongs done by public servants in
the ourse of business, such as death or injury caused to a person by Police
atrocities; Saheli v. Commissioner of Police, AIR 1990 SC 513: (1990) 1
SCC 422: 1990 SCC (Cri) 145.
In lame words sovereign functions are those functions which can be done by
the government agencies only.
Vicarious liability is a legal concept which refers to one party being held
liable for the injury or damage sustained by another party, in spite of the fact
that they had no active involvement in the incident. The intent behind
vicarious liability is to hold the proper party accountable when harm is
committed. The victim needs compensation and the law provides so by
applying the principle of qui facit per aliumfacit per se that means he who
acts through another shall deemed to have acted on his own, the courts hold
the employer or principal or partner responsible as per the situation. We have
looked at a variety of situations in which a party, including contractors,
parents and employers, may be charged with vicarious liability.Vicarious
liability is sometimes applied in criminal law too. In India sections 154, 155
etc of the Indian Penal Code are classic examples of the same. However
application of vicarious liability to crimes has been greatly criticized. This is
because vicarious criminal liability would violate either or both of two basic
principles of the criminal law. According to the first principle, the

actusreus requirement, a person cannot be guilty of a crime unless the


person's guilty conduct includes a voluntary act or omission. One feature of
the actusreus requirement is the protection of personal security it affords by
forcing criminal statutes to provide a bright line that a person can choose not
to cross and thereby avoid criminal liability. By holding a person liable for the
conduct of another, vicarious liability undermines this control principle of
the actusreusrequirement, because a person cannot control the conduct of
others in the same way that she can control her own. Just as importantly,
vicarious liability may violate a second principle, that criminal liability must
be based on personal fault. Both retributive and utilitarian justifications for
criminal penalties demand that fault accompany the moral condemnation
and harsher punishments associated with criminal conviction. By punishing
the parent for theft if a child steals, for example, vicarious liability could
violate this basic rule. Nowadays, vicarious liability in criminal law is rarely
applied except in very special circumstance.

Strict Liability:
Strict Liability is the liability in which the wrongdoer is liable to the acts for
which he is not responsible. The need for it was felt in the 19th century, to
improve working and safety standards in factories. The doctrine of Strict Liability
has formed its foundation in the Englands case Rylands vs. Fletcher 28 in which :
The defendant, owned a mill, where he constructed a reservoir to supply water
to the mill. This reservoir was constructed over old coal mines, and the mill
owner had no reason to suspect that these old diggings led to an operating
colliery. The water in the reservoir ran down the old shafts and flooded the
colliery. Blackburn J. held the mill owner to be liable, on the principle that The
person who for his own purposes brings 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 not do so, is prima facie answerable for all the damage which is the natural
consequence of its escape. On appeal this principle of liability without fault was
affirmed by the House of Lords but restricted to non- natural users vide. Thus,
corporations that handle water, electricity, oil, noxious fumes, colliery spoil and
poisonous vegetation are covered by this doctrine. Negligence of the victims is
no excuse. The doctrine also operates as a loss-distribution mechanism: The
person indulging in such hazardous activities (usually a corporation) being in the
best position to spread the loss through insurance and higher prices of its
products. However, later decisions in England diluted the principle by
introducing several exceptions. The Shriram judgment categorically said that
28

House of Lords, L.R. 3 H.L. 330 (1868)

such exceptions would not be applicable in India. The present verdict further
emphasises this point and expands its scope.
The doctrine of Strict Liability evolved in India the case of MC Mehtas where the
Supreme Court had imposed the strict liability principle on erring industries. It
ruled that if the enterprise is permitted to carry on any hazardous or inherently
dangerous activity for its profit, the law must presume that such permission is
conditional on the enterprise absorbing the cost of any accident arising on
account of such hazardous or inherently dangerous activity as an appropriate
item of its overhead. The court also emphasised that there are no exceptions to
the rule of strict liability. Moreover, the amount of compensation would depend
upon the capacity of the enterprise and not the earning capacity of the
individual victims. In the Union of India vs Prabhakaran, where the Supreme
Court had extended its cover to public utilities like the railways, electricity
distribution companies, public corporations and local bodies which may be
social utility undertakings not working for private profit. In this case a woman
fell on a railway track and was fatally run over. Her husband demanded
compensation. The railways argued that she was negligent as she tried to board
a moving train. The Supreme Court rejected this contention and said that her
contributory negligence should not be considered in such untoward incidents
the railways has strict liability. The Supreme Court had applied this doctrine
to the electricity mishaps. An electric wire had snapped and fallen on the road.
On a rainy night, a cyclist came in contact with it. He died on the spot. His
widow demanded damages from the electricity authorities, MPSEB vs
ShailKumari, 2002. The board argued that the wire belonged to a pilferer and
that it was not negligent. Rejecting this contention, the Supreme Court said: It
is no defence on the part of the board that somebody committed mischief by
siphoning off energy to his private property and the electrocution was from such
diverted line Authorities manning such dangerous commodities have extra
duty to chalk out measures to prevent such mishaps. The basis of the liability is
the foreseeable risk inherent in the very nature of such activity.
Strict Liability doctrine can be defined as the acts or omissions which are held
liable without the mens rea (mental intent). It is a standard for liability which
may exist in either a criminal or civil context. A rule specifying strict liability
makes a person legally responsible for the damage and loss caused by his or her
acts and omissions regardless of culpability including the fault in criminal law. In
tort law, strict liability is the imposition of liability on a party without a finding of
fault (such as negligence or tortious intent). The claimant need only prove that
the tort occurred and that the defendant was responsible.
In criminal law, strict liability is liability for which mens rea (Latin for guilty
mind) does not have to be proven in relation to one or more elements
comprising the actusreus (Latin for guilty act) although intention, recklessness
or knowledge may be required in relation to other elements of the offence. The
liability is said to be strict because defendants will be convicted even though

they were genuinely ignorant of one or more factors that made their acts or
omissions criminal. The defendants may therefore not be culpable in any real
way, i.e. there is not even criminal negligence, the least blameworthy level of
mens rea. These laws are applied either in regulatory offences enforcing social
behaviour where minimal stigma attaches to a person upon conviction, or where
society is concerned with the prevention of harm, and wishes to maximise the
deterrent value of the offence.
The courts to apply this doctrine must examine the overall purpose of the
statute. If the intention is to introduce quasi-criminal offences, strict liability will
be acceptable to give quick penalties to encourage future compliance, e.g.
fixed-penalty parking offences. But, if the policy issues involved are sufficiently
significant and the punishments more severe, the test must be whether reading
in a mens rea requirement will defeat Parliaments intention in creating the
particular offence, i.e. if defendants might escape liability too easily by pleading
ignorance, this would not address the mischief that Parliament was
attempting to remedy.

Exemption from Liability:


Necessitatis non habetlegam: Necessity has no law is a well-known maxim
of the law. A person may be compelled to do an unlawful act under coercive
pressure of such an intensity that he cannot be regarded as a free agent. In
such a case though in one sense the act is done 'intentionally', it is not possible
to attribute mens rea to the doer of the act. For this reason the great
philosopher-jurist, Bacon, was of the opinion that if A and B, two shipwrecked
sailors, catch hold of a plank not large enough to hold both of them and A for
self-preservation pushes B into the sea, A cannot be held guilty of a crime.
When the will of the doer of the act is overborne by the compulsion of the
situation, mens rea is excluded, no liability should attach to the act. Though
theoretically, jus necessitatis should altogether exempt a person from liabili
there are practical difficulties in giving effect to it so rigorously. That !id,
situation was no compelling as wholly to deny freedom of choice to the doer as
the act may not always be manifest. In R. v. Dulley 29 two sailors and a boy adrift
29

(1834) 14 QB 273. 5. LR 2 CC 154.

in open sea on a small boat without food. After starving for nine days, the sailors
were driven by the pangs of hunger into an act of cannibalism. They killed and
ate the boy for their own self-preservation. They were subsequently rescued and
were prosecuted for homicide. They set up jus necessitates as a defence and
relied upon Bacon's illustration of the shipwrecked sailors. They were
nevertheless, held to be guilty of murder. Lord Coleridge observed: "To preserve
one's life is generally speaking, a duty, but it may be the plainest and the
highest duty to sacrifice it." The normal punishment of death for homicide was
not, however, enforced in this case. The Crown considering the extreme
temptation, to which the unfortunate sailors were exposed, commuted the
punishment to one of imprisonment for six months. Thus jus necessitates is a
relevant consideration in determining the measure of liability, though it may not
secure complete immunity from liability.
Mens rea absent: Austin points out that the grounds of the various
exemptions from liability are reducible to one and the same principle. A party is
clear of liability because he is clear of intention or negligence or is presumed to
be clear of intention or negligence. The exemptions are as follows:
Absence of Will: Where the law presumes that there can be no will at all, no
penal liability can be imposed. Thus children under seven are regarded by the
law as incapable of having a mens rea. An insane person also may be presumed
to be devoid of will. In either case penal liability cannot be imposed.
Mistake: Where the will is not directed to the deed, again, no liability can
attach. This state of mind usually arises from mistake. In mistake the act is not
intentional with reference to some circumstance attending the act. Mistake to be
admitted as a ground of exemption from liability has to satisfy three conditions:
(a)

The mistake must be such that, had the supposed circumstances


been real, they would have prevented any guilt from attaching to
the person in doing what he did.
In Reg. v. Princes30 a person who abducted a girl under the legal
age of consent was held criminally liable and the plea of
inevitable mistake as to her age failed as a defence. This is
because the act of taking the girl away was itself wrongful.
If the party's intent was lawful, mistake is a valid ground of
defence forust: criminal liability. For instance, if A intending to kill

30

LR 2 CC 154

B, kills C in mistake, he has no defence; but if A, who is out


hunting in a forest shoot; hate thinking that a tiger was lurking
inside and the bullet hits and kills bBe guiltless.
(b)

The mistake should be reasonable.

(c)

The mistake should relate to a matter of fact and not of law

BIBLIOGRAPHY
Websites
1 www.indiankanoon.com

2
3
4
5

www.jstor.com
www.scribd.com
www.legalserviceindia.com
www.manupatra.com

Books
6 Tort Law by Nicholas J McBride & Roderick Bagshaw
7 Law of Tort by P.S.A. Pillai
8 Law of Torts by B.M.Gandhi
9 The Law of torts by Justice G.P.Singh
10 Introduction to jurisprudence by Avtar Singh
11 Lectures in Jurisprudence by N.K JayaKumar
12 Salmond on Jurisprudence