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By: Robin Pandey                                                                                             Date: 13/03/2022

Many activities, now more than ever, exact a high toll of life, limb and property. Faced with this situation, society may adopt any one of three possible courses. (1) It may proscri1be the activity altogether, as by a statute declaring it illegal or a Court enjoining it as a nuisance. (2) Alternatively it may choose to incur the danger of the enterprise for the sake of its social utility but forbid it to be carried on except under specified conditions or in a prescribed manner: hence the proliferation of safety statutes enforced by licensing. Inspection, criminal penalties and the doctrine of negligence per se. (3) Or it may decide to tolerate the activity on condition that it pays its way regardless of whether it is carried out carelessly or not. This last is the solution of strict liability. The defendant is held liable not for any particular fault occurring in the course of the operation, but for the inevitable consequences of a dangerous activity which could be stigmatised as negligent on account of its foreseeable harmful potentialities, were it not for the fact that its generally beneficial character requires us to tolerate it in the public interest.

In one sense, strict liability is but another aspect of negligence, both being based on responsibility for the creation of an abnormal risk. Negligence, however, has been concerned primarily with an improper manner of doing things which are safe (and therefore reasonable) enough when properly carried out, and not with activities which remain dangerous despite all reasonable precaution. The explanation for this lies in the dilemma that if such an activity were branded as negligent on account of its irreducible risk, it would be tantamount to condemning it as unlawful.

Some activities, no doubt, deserve that fate either because the object they serve is not sufficiently beneficial or because it can be attained in a safe manner.  Other activities however, may have to be tolerated despite their irreducible risk, like drilling for oil and gas, testing rockets, flying high speed aircraft and driving motor vehicles. These should not be penalised as reprehensible by labelling them negligent although the risk they entail may not be avoidable (at least statistically) despite all possible precaution. If all the same they should pay their way, it must be on some principle other than negligence. That principle is strict liability. 

The rationale behind strict liability is that the activities coming within its fold are those entailing extraordinary risk to others either in the seriousness or the frequency of the harm threatened. Permission to conduct such an activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overhead. 

In accordance with general principles of causality, this exceptional liability should apply only to harm within the scope of the abnormal risk which provided the reason for strict liability. Strict liability is as yet unorganised and fragmentary in application. Courts have openly endorsed it only in cases where the non-negligent creation of serious risk arises from an abnormal or hazardous activity. Just as a major "public benefit" flowing from a hazardous activity (like nuclear power stations and other public utilities) is no longer a good reason for leaving it unburdened but rather reinforces the wisdom of distributing the loss among its beneficiaries, so the very fact that it is widespread and exposes the community to a typical hazard may furnish a sufficient reason for tolerating it only on condition that it pay its own passage.

American law has been somewhat bolder. After an at first cool reception, strict liability is now generally applied to "abnormally dangerous" activities, that is, those with inherent risks that cannot be eliminated by the exercise of reasonable care. An even clearer perspective guided the Pearson Commission in its recommendation to impose strict liability on controllers of things or operations in each of two categories first, those which by their unusually dangerous nature require the closest supervision, like flammable chemicals, and secondly, those which pose a risk of serious and extensive casualties, like public bridges, stadiums and large buildings. Especially the second category and the additional proposal of strict liability for vaccine damage and medical research volunteers clearly reject the plea for exemption of publicly beneficial projects.


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