Introduction

Theory of Liability
One of the most significant words in the field of law, liability means legal responsibility
for one's acts or omissions. Failure of a person or entity to meet that responsibility leav
es 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 win a lawsuit the suing party (
plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are s
hown to be true. This requires
evidence of the duty to act, the failure to fulfil that duty, and the
connection (proximate cause) of that failure to some injury or harm to the plaintiff. Liabi
lity also applies to alleged criminal acts in which the defendant may be responsiblefor h
is/her acts which constitute a crime, thus making him/her subject to conviction and pun
ishment.
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
aries 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.
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.

1 Wood 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.

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.

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.

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

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 facit
reum, 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 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
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.

5
Hughes, Criminal Omissions (1957-58) 67 Yale L.J.590.

c)

d)

e)
f)

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.
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.
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.
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
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 act 7

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.

7
Dr Sethna, Jurisprudence, p417.

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 heads- i) 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
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

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).

9
(1703) 1 ER 417.

The conditions of the penal liability are sufficiently indicated by the maxim, Actus non
facit reum, 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 which mens 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.
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.

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

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

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 Neighbor 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 neighbor. Who, then, in law is my
neighbor? 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., 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. Basanti Bai.
This 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 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 behavior to avoid imposing
undue risks of harm to other persons and their property, which circles back to duty. 11 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. In 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. 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.
As for the social importance of the defendants activity at the relevant time, Watt v. Hertfordshire
County Council case 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 of Latimer v. A.E.C. Ltd
can 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
11
David G. Owen, Professor of Law. Howstra Law Review. University of South Carolina.

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.

CAUSATION:
Causation12
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
12
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.

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 cause13
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 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 observa-tions 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.
13
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.

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 con-stitutes 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 shortcircuit) or else some human act (e.g., the setting fire to the house by some person).
Why it is that abnormal events and human 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 identify-ing 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 novas actus
interveniens, 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 circumstances 14.
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 Polemic15, 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 16, which, it seems, will be taken as depriving the former case of any binding
authority in English law17. 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
14
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.

15
[1921] 3 K.B. 560.

16
[1961] A.C. 388.

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 peril 18.
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.
17
Doughty v. Turner Manufacturing Co. Ltd. [1964] 1 Q.B. 518: Smith v. Leech Brain (8 Co. Ltd. [1962] 2 Q.B. 405.

18
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 offence19, 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 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

19
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.

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 of punishment. 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 natures 20. 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.
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
20

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

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 exceptions21 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 co-ordinate system of criminal
liability. These two together, combined in due proportions, constitute a very efficient
instrument for the maintenance of justice.

21

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.

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 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 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 ratihabitio retrorahitur et mandato priori aequiparatur : every ratification of
an act relates back and thereupon becomes equivalent to a previous request.
ii. Qui facit per alium facit 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 ways1. 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
alium facit 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 actus reus 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 actus reus 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 actus reus requirement, 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. Fletcher22 in which : The defendant, owned a mill, where
22

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 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 Shail
Kumari, 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

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

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 actus
reus (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 habet legam: 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. Dulley23 two sailors and a boy adrift 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. Princes24 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.

23

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

24

LR 2 CC 154

If the party's intent was lawful, mistake is a valid ground of defence

forust: criminal liability. For instance, if A intending to kill 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.

Conclusion

BIBLIOGRAPHY

Websites
1
2
3
4

www.wikipedia.org
www.scribd.com
www.legalserviceindia.com
www.manupatra.com

Books
5
6
7
8

Tort Law by Nicholas J McBride & Roderick Bagshaw

Law of Tort by P.S.A. Pillai
Law of Torts by B.M.Gandhi
The Law of torts by Justice G.P.Singh