Fault

Fault as a basis of liability in tort: its forms, the fault theory, and proof of fault

In one minute

Fault means blameworthy conduct. In tort, a person is at fault when he acts with intention, with recklessness, or without the care a reasonable person would take. The general rule is that a defendant is liable only if he is at fault.

There are exceptions, where the law makes a person liable although he took every care. In exams, expect the fault theory, its contrast with no-fault liability, and how a plaintiff proves fault.

Exam focus

Frequency: No data
Usually asked as: No data

Legal provision

No statute defines fault in tort. The idea comes from decided cases and writers.
Section 114, Indian Evidence Act, 1872 (now section 119, Bharatiya Sakshya Adhiniyam, 2023): the court may presume facts that are likely, given the common course of events. This supports the use of res ipsa loquitur.
Statutes with no fault: section 164, Motor Vehicles Act, 1988 and the Public Liability Insurance Act, 1991 make some liability independent of fault.

Meaning and definition

Fault is conduct for which the law blames a person. It has three forms.

Intention. The person aimed at the result, or knew it was almost certain to follow.
Recklessness. The person knew of the risk and went ahead without caring whether harm followed.
Negligence. The person did not take the care that a reasonable person would take in the same situation.

The fault theory says that liability in tort should depend on fault. The opposite idea is liability without fault, which makes a person pay although he was careful.

Detailed explanation

Step 1: why fault is the general rule

The law links liability to blame for three reasons.

It is fair to make a person pay for harm he chose to cause or carelessly caused.
It encourages care, because a careful person escapes liability.
It keeps liability within reasonable limits, since no one can control every accident.

Example. A bus driver in Warangal slows down at a zebra crossing and still hits a child who runs out suddenly from behind a parked truck. He took reasonable care. He is not at fault, so he is not liable in negligence.

Step 2: the three forms of fault

Each tort picks the degree of fault it requires.

Assault, battery, false imprisonment and deceit need intention.
Negligence needs carelessness, tested by the standard of a reasonable person.
Some torts, such as nuisance, are decided on the reasonableness of the defendant's use of his land. A person who creates a nuisance deliberately or carelessly is at fault.

Intention and negligence are explained in their own notes. Here it is enough to know that fault is a spectrum from deliberate harm to simple carelessness.

Step 3: proving fault

The plaintiff must prove fault. Sometimes that is hard, because the plaintiff does not know how the accident happened. The law helps in two ways.

Res ipsa loquitur (the thing speaks for itself). If the thing that caused harm was under the defendant's control, and the accident would not ordinarily happen without negligence, the court may infer negligence. The defendant must then explain.
Presumptions by statute or rule. A few statutes shift the burden of proof to the defendant.

Example. The clock tower of a market in Chandni Chowk collapsed and killed three people. The victims could not name the defect. The Supreme Court held that the collapse of a structure under the Corporation's control, with no outside cause, itself pointed to negligence.

Step 4: the plaintiff's own fault and other persons' fault

Contributory negligence. If the plaintiff's own carelessness helped cause the harm, the damages are reduced in proportion.
Fault of a third person. If a third person's independent act caused the harm, the defendant may escape. He remains liable if he ought to have foreseen it.

Step 5: liability without fault

The fault theory has exceptions. A person is liable although he is not at fault in these cases.

Strict liability under Rylands v. Fletcher.
Absolute liability under M.C. Mehta v. Union of India.
Vicarious liability of an employer for the torts of an employee.
Statutory liability, such as section 164 of the Motor Vehicles Act, 1988.

These exceptions rest on risk. The person who creates a risk and gains from it should bear its cost.

Is the defendant liable for the harm?How to read this: go down the boxes in order. A "No" answer sends you to the result beside the box.

1. Is the tort one that needs no fault, such as absolute liability or a statutory no-fault duty?
Yes: the defendant is liable once the harm and the link are shown. Go to the defences.
2. Did the defendant act with intention, recklessness or without reasonable care?
No: he is not at fault, so there is no liability in a fault-based tort.
3. Can the plaintiff prove fault, or can the court infer it (res ipsa loquitur)?
No: the claim fails for want of proof.
Fault is established. The defendant is liable, subject to defences and contributory negligence.

Don't confuse: fault-based and no-fault liability

The difference is whether the defendant's care matters.

Point	Fault-based liability	No-fault liability
Basis	Blame: intention, recklessness or negligence	Risk created by the defendant
Does care help the defendant?	Yes. Reasonable care means no liability	No (or only to a limited extent)
Burden of proof	On the plaintiff, unless res ipsa loquitur applies	Plaintiff proves harm and the link, not fault
Examples	Negligence, assault, defamation	Absolute liability, section 164 compensation

Inside fault-based liability. A hospital in Kurnool leaves a surgical swab inside a patient. Negligence is shown, and the hospital is liable for its fault.

Just outside it (no fault). A pesticide plant has the best safety record, but a valve fails and poisons a village well. The plant is liable under absolute liability without any fault.

Common mistakes

Saying fault is needed in every tort. Strict, absolute and statutory liability do not need it.
Treating fault and malice as the same. Malice is a particular wrongful state of mind, explained in its own note.
Forgetting that the plaintiff usually must prove fault, and that res ipsa loquitur only helps him to do so.
Ignoring the plaintiff's own fault. Contributory negligence reduces damages.

Apply it

Problem

A heavy hoarding on a main road in Hyderabad falls without warning in calm weather and injures a pedestrian. The owner says he did nothing wrong, and the pedestrian cannot say why it fell. Can the pedestrian succeed?

Issue. May fault be inferred when the plaintiff cannot prove how the accident happened?

Rule. The plaintiff must prove fault, but where the thing causing harm was in the defendant's control and the accident would not ordinarily happen without negligence, res ipsa loquitur lets the court infer negligence.

Application. A hoarding that falls in calm weather does not ordinarily fall without careless fixing or maintenance. It was in the owner's control. Negligence may be inferred, and the owner must explain.

Conclusion. The pedestrian can succeed unless the owner shows that he took reasonable care.

Leading case laws

Donoghue v. Stevenson (1932)
Facts. A snail was found in a ginger-beer bottle. The drinker had no contract with the manufacturer.

Principle. By 3 to 2, the House of Lords held that the manufacturer owes a duty of care. The appeal decided only that the facts, if true, stated a claim. Negligence still had to be proved.

Why it matters. It shows carelessness as fault, and the need to prove it.
Municipal Corporation of Delhi v. Subhagwanti (1966)
Facts. The old clock tower in Chandni Chowk, Delhi, collapsed and killed three persons.

Principle. The Supreme Court held the Corporation liable. The collapse of a structure it controlled, with no outside cause, supported an inference of negligence.

Why it matters. The leading Indian case on res ipsa loquitur.
Cassidy v. Ministry of Health (1951)
Facts. A patient who went into hospital for a hand operation came out with a hand stiff in all fingers. He could not say which staff member was careless.

Principle. The Court of Appeal held that the hospital could not escape because the patient could not name the careless person.

Why it matters. It shows how the court uses an inference of fault when the plaintiff cannot identify it.
Rylands v. Fletcher (1868)
Facts. A reservoir burst through old mine shafts and flooded a neighbour's mine.

Principle. A person who keeps a dangerous thing on his land must keep it in at his own risk.

Why it matters. It is the early exception to the fault theory.

How to write this answer in the exam

5-mark answer

Define fault: blameworthy conduct.
Name its forms: intention, recklessness, negligence.
State the fault theory as the general rule.
Name the exceptions: strict, absolute and statutory liability.

10-mark answer

Meaning of fault and the fault theory.
Why liability follows fault.
Forms of fault with examples.
Proof of fault: burden on the plaintiff and res ipsa loquitur (Municipal Corporation of Delhi v. Subhagwanti, Cassidy).
Contributory negligence and third-party fault.
Liability without fault: Rylands v. Fletcher, M.C. Mehta, section 164.
Conclusion: fault is the rule, no-fault the exception.

Key points to remember

Fault is blameworthy conduct: intention, recklessness or negligence.
The general rule: liability follows fault.
The plaintiff must prove fault. Res ipsa loquitur lets the court infer it.
Contributory negligence reduces damages.
Exceptions: strict, absolute, vicarious and statutory liability.
No-fault liability rests on risk, not blame.

Quick self-test

1. What are the forms of fault?

Intention, recklessness and negligence.

2. When can the court infer fault under res ipsa loquitur?

When the thing causing harm was under the defendant's control and the accident would not ordinarily happen without negligence.

3. Name two kinds of liability without fault.

Absolute liability under M.C. Mehta v. Union of India, and statutory liability under section 164 of the Motor Vehicles Act, 1988.