Liability

A cricket ball breaks a neighbour's window. Who pays? If the batsman aimed at the window, he acted intentionally; if he played carelessly near the house, negligently. If a club rule says whoever hits the ball over the fence pays, fault does not matter. If he plays for a club, perhaps the club pays for him. These are the four great ideas of this note: intention, negligence, strict liability and vicarious liability.

Figure: The ladder of culpability: intention, knowledge, recklessness and negligence as degrees of the guilty mind, with strict and absolute liability below the ladder

1. Meaning and Nature of Liability

Liability is the last link in a chain: a duty, its breach (the wrong), and the liability that follows. (In Hohfeld's scheme 'liability' has a different sense: the correlative of a power; see Note 28.) Salmond treats liability and responsibility as the same thing; any sharper distinction comes from Hart, whose parable of the drunken sea captain shows one word covering role, cause, liability and capacity. Legal liability usually presupposes capacity responsibility: the law excuses those who cannot understand or control their conduct, as with insanity (Section 22 BNS, formerly Section 84 IPC).

2. Civil and Criminal; Remedial and Penal

The familiar division is between civil liability, which arises from a civil wrong (a tort, a breach of contract, a breach of trust) and is enforced by the injured party, and criminal liability, which arises from a crime and is enforced by the State. Salmond points out that this division does not match the division between remedy and punishment. Remedial liability exists where the law simply enforces the right of the injured party, by compelling performance or compensation. Penal liability exists where the law punishes the wrongdoer. Criminal proceedings always end in penal liability; civil proceedings usually end in remedial liability, but may be penal, as with exemplary damages or a statutory penalty recovered in a civil action.

3. Remedial Liability and Its Exceptions

Salmond's theory of remedial liability is simple: wherever the law creates a duty, it should enforce the specific fulfilment of that duty. The creditor should be paid; the trespasser should be removed; the promisor should perform. But there are three exceptions where specific enforcement is not given. First, duties of imperfect obligation, which the law recognises but does not enforce, such as a time-barred debt (the Limitation Act bars the remedy, not the right: see Note 35). Second, duties which by their nature cannot be specifically enforced once broken: a defamatory statement cannot be unsaid, so damages are substituted. Third, cases where specific enforcement is possible but inexpedient, such as a promise of marriage or a contract of personal service, where the law prefers damages to compulsion.

4. Penal Liability: Act and Mens Rea

The general condition of penal liability is expressed in the maxim actus non facit reum nisi mens sit rea: an act does not make a man guilty unless his mind is also guilty. Penal liability therefore needs an act (actus reus: a voluntary act or omission, with its circumstances and consequences) and a mental element (mens rea). Salmond divides wrongs into three classes on this basis: intentional wrongs, negligent wrongs, and wrongs of strict liability, where neither intention nor negligence is required. For Salmond, mens rea takes two forms: intention and negligence. The modern criminal law ladder shown in the figure (intention, knowledge, recklessness, negligence) is a finer grading of the same idea.

Intention and motive

Salmond defines intention as the purpose or design with which an act is done: the foreknowledge of the act coupled with the desire of it, such that the foreknowledge and desire cause the act. He distinguishes the immediate intent (what the act itself is meant to achieve) from the ulterior intent (the further object for which it is done). A man who steals bread to feed his hungry child has an immediate intent to take the bread and an ulterior intent to feed the child. The ulterior intent is the motive. The law looks at the immediate intent and generally ignores the motive: a good motive does not excuse a crime, and a bad motive does not make a lawful act unlawful.

Motive may still be evidence in a criminal trial, and it bears on the measure of punishment (Section 9). 'Malice in law' means only the intentional doing of a wrongful act without just cause or excuse; 'malice in fact' means ill will.

Negligence: two theories

On the subjective theory, associated with Salmond and Austin, negligence is a state of mind: carelessness or indifference, the absence of the care the law demands. It is therefore a form of mens rea, blameworthy because the wrongdoer did not trouble to avoid the harm. On the objective theory, associated with Pollock, negligence is conduct, not a state of mind: the failure to reach the standard of care of a reasonable person in the circumstances, whatever was passing through the defendant's head. Modern tort law has largely adopted the objective view. The classic statement is Alderson B's in Blyth v Birmingham Waterworks (1856): negligence is the omission to do something which a reasonable man would do, or the doing of something which a prudent and reasonable man would not do.

Indian criminal vocabulary

Indian criminal law uses its own precise terms for the mental element. A person has 'reason to believe' a thing if he has sufficient cause to believe it, but not otherwise (formerly Section 26 IPC). Other defined terms include 'voluntarily', 'dishonestly' and 'fraudulently' (formerly Sections 39, 24 and 25 IPC). Courts distinguish rashness (acting with awareness of the risk, in the hope that it will not materialise) from negligence (failing to take the care that the duty requires, without adverting to the risk). Causing death by a rash or negligent act not amounting to culpable homicide is now Section 106 BNS (formerly Section 304A IPC).

5. Strict and Absolute Liability

Strict liability dispenses with proof of fault. The classic civil authority is Rylands v Fletcher (House of Lords, 1868, affirming Blackburn J in the Exchequer Chamber): a person who, for his own purposes, brings onto his land and keeps there anything likely to do mischief if it escapes, in the course of a non-natural use of land, is answerable for the damage caused by its escape, though he was not negligent. The rule admits exceptions: act of God, the plaintiff's own default, consent, the act of a stranger and statutory authority.

In criminal law, strict liability appears in regulatory or 'public welfare' offences: food adulteration, licensing, weights and measures. The courts begin with a presumption that mens rea is required, which only clear words or necessary implication in the statute can displace.

6. Remoteness of Damage

A wrongdoer is not liable for every consequence, however distant. The law asks, first, whether his act caused the harm (the 'but for' test), and second, whether the harm is too remote. In Re Polemis (Court of Appeal, 1921) a plank negligently dropped into a ship's hold caused a spark that ignited petrol vapour and destroyed the ship. The court applied the directness test: the defendant was liable for all the direct consequences of his negligence, foreseeable or not. In The Wagon Mound (No. 1) (Privy Council, 1961), furnace oil spilled in Sydney harbour later caught fire and damaged a wharf. The Privy Council rejected Re Polemis and held that liability extends only to damage of a kind that was reasonably foreseeable. The foreseeability test is now generally followed.

7. Vicarious Liability and the State

Vicarious liability is liability for the wrong of another, arising from a relationship: a master is liable for the torts of his servant committed in the course of employment, and a principal for his agent. The maxims are respondeat superior (let the superior answer) and qui facit per alium facit per se (he who acts through another acts himself). The justifications are practical: the employer takes the benefit of the enterprise, controls the work and is better able to pay and insure. Where two or more persons are answerable for the same wrong, their liability may be joint, several or joint and several (see Note 35 on solidary obligations).

The State's vicarious liability has a troubled history in India, turning on the distinction between sovereign and non-sovereign functions.

8. Liability of Corporations

It was once doubted that a company, having no body to kick and no soul to damn, could commit a crime. Modern law holds it liable civilly and criminally, its mind supplied by those who are its directing mind and will (the attribution doctrine).

9. The Measure of Criminal Liability and the General Exceptions

Salmond names three factors that govern the measure of criminal liability, meaning how much punishment is deserved. The first is the motive of the offence: the stronger the temptation to commit it, the heavier the punishment needed to counteract it. The second is the magnitude of the offence: the greater the harm, the greater the penalty. The third is the character of the offender: an habitual offender needs a heavier penalty than a first offender (see Note 27). Liability is also excluded by the general exceptions (formerly Chapter IV IPC, now in the BNS): mistake of fact, accident, infancy, insanity, intoxication in limited cases, consent, necessity and private defence. Each negatives liability by showing that a condition of it, usually capacity or mens rea, is absent.

10. Frequently Asked Questions

Q. What is the difference between strict and absolute liability?
A. Strict liability (Rylands v Fletcher, 1868) dispenses with fault but allows exceptions such as act of God, act of a stranger, consent and the plaintiff's default. Absolute liability (M.C. Mehta, 1987) applies to enterprises engaged in hazardous activities and allows no exceptions at all.

Q. Is motive relevant to liability?
A. Generally no. Motive is the ulterior intent behind an act; the law looks to the immediate intent. A lawful act is not made unlawful by a bad motive (Bradford Corporation v Pickles; Allen v Flood). Motive matters where it is an ingredient of the wrong (malicious prosecution, conspiracy), as evidence, and in fixing punishment.

Q. Can a company be criminally liable in India?
A. Yes. It can be prosecuted even for offences carrying mandatory imprisonment, the court imposing a fine (Standard Chartered Bank, 2005), and it can possess mens rea through its directing mind (Iridium, 2011). But its directors are not automatically liable for its offences (Sunil Bharti Mittal, 2015).

Q. When is a doctor criminally liable for negligence?
A. Only for gross negligence, a very high degree of carelessness. Ordinary negligence may give civil liability, but criminal liability requires more (Jacob Mathew v State of Punjab, 2005).

See also: Note 27 (punishment), Note 28 (rights and duties, Hohfeld's liability), Note 33 (legal personality and corporations), Note 35 (obligation), Note 37 (legal sanctions).