Concept of Liability

Liability is the condition of the person who has committed a wrong. 

Salmond defines liability as, ‘the bond of necessity that exists between the wrongdoer and the remedy of the wrong’. 

Kinds of Liability

Liability is of two kinds:

• Civil.
• Criminal.

Distinction between civil and criminal liability

About the distinction between the two, different jurists have given different views.

Austin says:

• An offence which is pursued at the discretion of injured party or his representatives is a civil injury. 
• Offences which are pursued by the sovereign or by the subordinates of the sovereign are a crime. All absolute obligations are enforced criminally.

Salmond’s view

The distinction between criminal and civil wrong is based not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied.

• Generally, four points of distinction between the two have been put forward:
• Crime is a wrong against the society but a civil wrong is a wrong against a private individual or individuals.
• The remedy against a crime is punishment but the remedy against the civil wrongs is damages. 
• A third difference between the two is that of the procedure. The proceedings in case of crime are criminal proceedings, but the proceedings in case of a civil wrong are called civil proceedings and criminal and civil proceedings take place in two different sets of courts. 
• The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong the liability is measured by the wrongful act and the liability depends upon the act and not upon the intention.

REMEDIAL AND PENAL LIABILITY

The liability can again be classified as 

• Penal: When after a successful proceeding the wrongdoer is awarded punishment which may be the fine, imprisonment, etc., it is called penal liability. The criminal liability is penal. 
• Remedial.: If after a successful proceeding the defendant is ordered to pay damages or to pay a debt, or to make a specific performance etc., the liability is called remedial liability. The civil liability is generally remedial

Remedial liability

This liability is based on the maxim ubi jus ibi remedium (where there is a right, there must be some remedy). When law creates a duty, it ensures its fulfillment also. For the breach of a duty, there is some remedy prescribed by law and it is enforced by law. With very few exceptions this is the rule.

The exceptions are the following:

• The duties of imperfect obligation. This is the first exception of the rule that a duty is enforceable by law. A time-barred debt is an example of it. Though the debt exists in law, it is not enforceable. Therefore, there can be no proceedings to compel its payment.
• There are some duties which are of such a nature that if once broken cannot be specifically enforced (in respect of the act done). For example, in a completed assault (that is actionable as a tort), the defendant cannot be made to refrain from it (as it is already done and the original state of things cannot be brought).
• Cases where, though the specific performance of the duty is possible, the law, on other considerations, does not enforce the specific performance, but instead awards damages to the plaintiff.

For example, if A contracts to render personal service to B, B cannot enforce performance of this contract, (Specific Relief Act of 1877, section 21).

Penal Liability

The Maxim actus non facit reum, nisi mens sit rea (the act alone does not amount to guilt, it must be accompanied by a guilty mind) is considered to be the condition of penal liability. 

Thus, there are two conditions of penal liability:

1. Act

Austin defines act as a ‘movement of the will’. It is bodily movement caused by volition, a volition being a desire for a bodily movement which is immediately followed by such movement provided the bodily member is in a normal condition. 

The view of Holmes is that an act is always a voluntary muscular contraction and nothing else. Thus, according to both the jurists an act is a willed movement of the body.

Salmond takes act in a wider sense. He says: ‘We mean by it (act) any event which is subject to the control of human will’. 

• An act consists of three stages:

1. Its origin in some mental or bodily activity or passivity of the doer.

• Its circumstances
• Its consequences.

For example, if we take theft, it has five ingredients:

• Dishonest intention to take property.
• The property must be movable property.
• It should be taken out of the possession of another person.
• It should be taken without the consent of the person.
• There must be some moving of the property in order to accomplish the taking of it.

Kinds of Acts

Acts are of various kinds:

• Positive and negative acts: when the wrongdoer does an act which he should not do or in other words, he is prohibited by law not to do, it is a positive act. When the wrongdoer does not do an act which he should do, in other words, which he is directed by law to do, it is a negative act. Act includes positive as well as negative act. The Indian Penal Code section 32 says In every part of this code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
• Voluntary and involuntary acts: If the act is a willed act, it is called a voluntary act, but if the act is not a willed act, it is an involuntary act. The penal liability is only for voluntary acts.
• Internal and external acts: Internal act means the act of mind and external act means the act of body. An external act generally implies an internal act also but an internal act is not always translated into an external act. The term ‘act’ is commonly used for external act, but it should not be taken to be restricted to it alone. Internal act is a very important condition in determining the penal liability.
• Intentional and unintentional acts: Intentional act means an act which is foreseen and is desired by the doer of the act. Unintentional act is that act which is not so foreseen or desired, or in other words, it is not a result of any determination. Generally, by act we mean intentional act, but intention is not always necessary condition of penal liability, and therefore, it is not an essential element in those acts where it is not a condition of liability. These divisions of act are not exclusive, and sometimes an act may fall into various classes. For example, an act may be positive, external and intentional at the same time without any conflict.

The wrongful acts are divided into two classes:

• Acts which causes some harm, and it is only on this ground that they are considered wrong.
• Acts which are considered as wrong due to their mischievous tendencies. In these acts, proof of actual harm is not necessary for liability.

1. Mens Rea

Salmond’s view: Mens rea means guilty mind. It is the second condition of penal liability. 

Mens rea is defined as ‘the mental element necessary to constitute criminal liability’. In making a person criminally liable, an enquiry ‘into his mental attitude is made Criminal intention, malice, negligence, heedlessness, and rashness, etc. all are included in mens rea. 

Salmond says that mens rea included only two distinct mental attitudes of the doer towards the deed:

• Intention
• Recklessness.

It means that a man is liable only for those wrongful acts which he does either willfully or recklessly. Sometimes, inadvertent negligence is also punishable. Therefore, unless an act is done with any of these three mental attitudes, the doer is not liable.

• Mens rea under eclipse

The mens rea has no longer remained the condition of penal liability in its original sense and it has been replaced by standards which the law has established. Apart from this change, there are other factors also which have contributed in relegating the importance of mens rea as a condition of a penal liability. Mens rea or the degree of subjective guild varies in different classes of offences.

For example, against a charge of kidnapping a girl under the age of 18, an honest and reasonable belief of the accused that the girl was over 18 is no defence. 

• Mens rea in Indian Penal law

In Indian criminal law, the scope of general application of the conditions of mens rea is very limited. It is due to many reasons. Here the criminal law is all codified and the offences are carefully defined. If mens rea is a necessary condition for a particular offence, it is included in the very definition of the offence and it is a part of it. There are certain offences which have been defined without any references to mens rea or intention. In these offences, mens rea is not a condition for a penal liability.

These offences are of a grave nature and the act itself is very dangerous, therefore, the law does not go to make an inquiry into the mental attitude of the wrongdoer. Such offences are the offences against the State, counterfeiting coins, etc.

Lastly, there is a chapter in the Indian Penal Code, ‘General Exceptions’. It prescribes all those circumstances in which mens rea is negative and hence there is no liability. Thus mens rea in India, is a condition of penal liability only to the extent it is codified. However, it works as a general principle of criminal law and is applied in matters of interpretation.

From the point of view of the mens rea, wrongs maybe divided in three classes:

1. Where mens rea amounts to intention or knowledge. The wrongs in which the mens rea is of this degree are intentional wrongs, or wrongs committed recklessly, or there is culpable negligence.
2. Negligence: In these wrongs carelessness amounts to mens rea.
3. Absolute or strict liability: In cases of absolute or strict liability mens rea is not a necessary condition of liability.

Intention

Intention is defined as the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, in as much as they fulfill themselves through the operation of the will. An act is intentional if, and so far as it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.

Holmes says that there are two elements of intention:

• Foresight that certain consequences will follow from an act.
• The wish for those consequences working as a motive which includes the act.

A criminal intention means an intent to do an act whose natural and probable ultimate consequences are criminal. Thus, when we speak that a wrong is intentional, it means that the intention is extended to all the three elements of the wrong (origin, circumstances and consequences). Intention must be distinguished from the other similar terms.

Meaning of intention:

It means either desire of the consequence of one’s conduct, or foresight of the certainty of such consequence. But the intention does not extend to cover the knowledge of probable events. A manufacturer, who employs workmen, has the knowledge that some accident might take place which might kill a workman, but this knowledge would not be taken as an intention of the employer if any workman is a victim of an accident.

• constructive intention.: Sometimes, the intention is imputed from the act or the consequence. If a particular act has been done, the law will presume that the person doing it had the intention to do it without the enquiry as to whether actually he had the intention or not. 

In English as well as in Indian law, intention does not mean only the specific intent, but it includes the generic intent also.

For example, in culpable homicide (section 299 IPC) it is not necessary that the offender should intend to kill any particular person, or he has killed the same person whom he intended to kill. It is enough (for making him liable) if he causes the death of anyone by doing an act with the intention of causing death.

Intention and motive

Motive = ‘ulterior intent’.

It is seldom that a man commits a wrongful act for its own sake. The wrongdoer has some end in his mind, which he tries to achieve through his wrongful act.

For example, if A fires upon B, his intention is to kill B. A intended to kill him due to reason that B was contestant against A in an election, and he is likely to win it. A intended to kill him for ensuring his success by removing B from the election field. This idea of removing B from the election field is motive of A for doing the wrongful act.

Thus, generally in committing a wrong, the intent of the wrongdoer is two folds:

• One is the wrongful act itself.
• The other is that on which the wrongful act proceeds and it is beyond the wrongful act.

If we take the ‘intent’ in a comprehensive sense, it may be divided into immediate and ulterior. 

• The immediate intent is coincident with the wrongful act itself. This is intention. 
• The ‘ulterior intent’ is beyond the wrongful act. It s motive. 

Malice

Sometimes, malice is also used in law to indicate a similar meaning. Sometimes, it is used to indicate a wrongful intention, and sometimes, it means ‘motive’. 

In murder, it merely means that there is present one of the various forms of mens rea necessary to constitute the crime.

In certain statutory offences, it means that there must be either an intention to cause results of the particular kind prohibited by the statute, or at least a recklessness which cares not whether the prohibited consequence occurs or not.

Relevancy of Motive

Motive is relevant only in the following cases:

• Where it (motive) is the evidence of the evil intent: Though the proof of the exercise of the motive is not necessary for a conviction, where it is proved it is an evidence of the evil intent, and it is relevant in the showing that the person, who had a motive to commit the offence, actually committed it. Thus any fact is relevant which shows or constitutes a motive or preparation for any facts in issue or relevant fact
• In the criminal attempts: Motive is relevant in cases of the criminal attempts also. Attempt is an act done with the intent to commit the offence so attempted? A person is liable for his criminal attempts, as they show the existence and the nature of motive or ulterior intent and thus motive becomes relevant.
• Cases where the intent is a part of or ingredient of the offence: In most of the offences, a particular intent forms part of the definition of the offence. For example, theft (section 378 IPC 1860) consists in Intending to take dishonestly any movable property out of the possession of any person without the person’s consent and moving that property in order to such taking. In such cases ‘the ulterior intent’ is the source, in whole or in part, of the mischievous tendency of the act, and is, therefore, material in law.
• In cases of jus necessitates: (Act in necessity or in other words, necessity knows no law). Where an act has been done under necessity, the motive is the all material consideration, and it operates as the ground of excuse. Where one is to make an option between two acts, both of them causing harm, the act which is to cause lesser harm should be opted without minding the letter of the law. It would be lawful in an emergency to imperil one or two lives in order to save a score of lives. In India, nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person and property under IPC, 1860, Section 81.
• Motive is taken into consideration in determining the punishment: Though a good motive is no defence against conviction, it is considered in determining the sentence, and if a good motive is there, a lighter punishment is awarded.

Negligence

Negligence is the second form of the mens rea. The offences in which mens rea is a necessary element, the wrongful intention or negligence will have to be proved on the part of the person who committed the wrongful act to make him liable. 

Culpable negligence: Negligence is not the doing of an act which one is under a duty to do, and it causes risk, danger or harm. Such negligence is wrongful and is called culpable negligence; and in many cases, it is a condition for penal liability. 

The negligence is defined as ‘the absence of such care as it was the duty of the defendant to use 

Negligence is of two kinds:

1. Advertent negligence: It is called wilful negligence or recklessness also. In this negligence, the harm done is foreseen as possible or probable, but it is not willed. For example, a person who drives furiously in a crowded street and causes injury or harm to persons commits it by advertent negligence. For legal purposes, such negligence is classed with intention.
2. Inadvertent negligence or simple negligence: The negligence which is a result of ignorance, thoughtlessness or forgetfulness is inadvertent negligence. In such negligence, the harm caused is neither foreseen nor wilful. For example, a doctor who treats a patient improperly through negligence, or forgetfulness is guilty of inadvertent negligence.

Theories of Negligence

There are two theories of negligence. 

One theory was propounded by Salmond. According to this theory, negligence is a state of mind, a mental attitude. This theory is called the subjective theory of negligence. 

The other theory has been given by Fredrick. According to him, negligence is a type of conduct. This is called the objective theory of negligence. 

• Subjective theory:

The view is that negligence is culpable carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is nevertheless essentially an attitude of indifference. Therefore, according to this view, negligence essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences. A person is made liable on the ground of negligence because he does not sufficiently desire to avoid a particular consequence i.e. harm.

Winfield is also the supporter of this theory. He says that as a mental element in tortious liability, negligence usually signifies total or partial inadvertence of the defendant to his conduct and for its consequences.

• Objective theory:

This theory says that negligence is an objective fact. It is not an attitude of mind or a form of mens rea, but it is a kind of conduct. Negligence is breach of duty to take care. It means that one should take precaution against the harmful results of one’s actions and he must refrain from unreasonably dangerous kind of conduct. Pollock, the founder of the theory says that negligence is the contrary of diligence, and no one describes diligence as a state of mind. So it is never a mental state.

Strict Liability

Apart from the negligence and wrongful acts, there is another class of wrongful acts for which a person is liable irrespective of mens rea. This liability is called the strict or absolute liability. 

The strict liability is an exception to the general rule about the conditions that constitute liability. It is said that in civil wrongs, strict liability should be the rule. 

Therefore, the person who suffered should be redressed without the consideration as to whether the wrongdoer did it intentionally or negligently. This view has no wide recognition in modern times because cases where redress is a penal redress are considered as punishment. In such cases, the damage awarded to the plaintiff amount to a penalty inflicted upon the defendant for which he is liable.

Therefore, it is argued that there should be no strict liability in civil law also. This view is supported by many English jurists, and to some extent, it is applied in the English law. In modern times, there is a tendency of expanding the field of strict liability. In cases where the redress is penal, it is intended more for mending the conduct of the wrongdoer in future than it is a penalty for subjective guilt.

Difficulty of knowing the intention: A very strong argument that is given in favour of strict liability is that it is very difficult to procure the evidence of intention or negligence in every case and it would make the administration of the justice very difficult. Therefore, in some kinds of cases the law makes a conclusive presumption of mens rea on the basis of the external conduct. It is clear that this liability would fall very heavily upon the innocent persons.

In criminal law, the rule of strict liability is applied only to a comparatively minor and trivial kinds of offences which in many cases do not imply any moral stigma on the part of the wrongdoer and in majority of the offences mens rea is a necessary condition for liability. Thus, in criminal law, rule of strict liability is almost an exception.

The strict liability may be divided into the following three headings:

• Mistake of law.
• Mistake of fact.
• Accident.

1. Mistake of Law:

The principle that ignorantia juris non excusat (ignorance of law is no excuse) is followed in almost all the legal systems. A person who has committed a wrongful act will not be heard to say that he did not know that it was forbidden by law, or, in other words, he did not know the law. This is an irrebuttable presumption that every person knows the law of the land. This is an instance of strict liability. The law will not go to make an inquiry as to whether the person taking the defence of the ignorance of law actually knew it or not. 

This irrebuttable presumption or, in other words, the strict liability is on the following grounds.

• First, that law is definite and knowable and it is the duty of every person to know the law concerning his rights and duties.
• Second, law in most of the cases is based on common sense, or in other words, it is based on the principle of natural right and wrong which generally every person knows. A person might not be acquainted with the Indian Penal Code, but he knows that to kill a man intentionally or to steal is a wrong.
• Third, there shall be evidential difficulties in accepting the defence of the ignorance of the law. In most of the cases, the wrongdoers in the first instance will take this defence and the court will have to enquire as to whether the wrongdoer knew the law or not before going into the merits of the case. This will create great difficulties before the courts and it will hamper the course of the administration of justice.

• Mistake of fact:

The principle about it is that ignorantia facit excusat (ignorance of the fact is excuse). It means that a person is not liable for a wrongful act if he has done it under a mistake of fact. In other words, mistake is a valid defence against a wrongful act. But this principle applies only in case of a criminal wrong and not a civil wrong. In civil wrongs, except in few cases, the mistake of fact is not a valid ground for discharging a person from liability.

But in criminal law, the strict liability for a mistake of fact is only in exceptional cases (IPC Act 1860, section 76 to 79). An example of such exception or strict liability is that if a person kidnaps a girl below 16, he is always liable, although he honestly believed that she was above 16.

• Accident:

A person is not liable for an act taking place accidentally. Accident differs from a mistake of fact. Every unintentional act is done by mistake when the consequences of the act are intentional, the mistake is only about the circumstances and in that respect it is unintentional.

For example, if I arrest A taking him to be B, it is a mistake of fact. In this case the consequence that is arrest is intentional but there is a mistake about the circumstances and I was to arrest B and not A. So the arrest of A is unintentional. An act is said to be done accidentally when it is unintentional in respect of its consequences also.

Another example, if I am cutting wood with an axe, and the axe slips away from my hand and falls upon the head of a man and causes his death, it is accident because the consequence was never desired. 

• Culpable accident: It is considered to be culpable in those cases where it could not have taken place at all had the doer of it observed the proper care. Culpable accident is no defence, save in those exceptional cases in which wrongful intent is the exclusive and necessary ground of the liability.
• Inevitable accident: An accident is called inevitable when it could not have been avoided by the wrongdoer and it takes place without any fault on his part. Inevitable accident is commonly a good defence in the criminal law (IPC Act, 1860 Section 80). It exonerates the wrongdoer from the liability.

Vicarious Liability

The general principle of law is that a person is liable for his own acts and not for the acts of others. But in certain kinds of cases a person is made liable for the act of another on account of his standing in a particular relationship with that person. This liability is called vicarious liability. 

• Criminal case

In criminal law, the general principle is that a person is not liable for the act of another. A master is not criminally liable for the unauthorized acts of his servant. However, there are certain exceptions to this rule. 

A master or owner Is liable in case of public nuisance clone by his agent. Similarly, if a principal neglects the performance of an act, which is likely to cause danger to others, and entrusts it to the unskillful hands, he will be in certain cases criminally liable (IPC Act 1860, Section 154 and 155).

• Civil law: 

Vicarious liability exists mainly in civil law. It is recognised in civil law generally in two kinds of cases:

1. Master’s liability for the acts of his servant:

The reasons of making the master liable are mainly two:

• It has evidential importance: To prove in every case of this nature that the servant acted under the actual authority of his master would involve a lot of difficulties and in most cases the master will escape the liability on the ground that there was no formal authority given to the servant. Secondly, to make masters liable for the acts of their servants makes them to remain vigilant and cautious in respect of the acts of their employees.
• The second reason for making the master liable is his pecuniary position: The masters are in a financial position to redress the injury caused by the acts of their servants. It is a principle of justice that one, who is in a position to make good the loss caused by him, or on his behalf, should not escape the liability of paying it by delegating the exercise of it to the agents from whom no redress can be obtained.

If a master keeps a servant at a place where he can cause mischief, the master must be answerable for that.

• Representatives of a dead man are in certain cases liable for the acts of the deceased:

This is a second form of vicarious liability, there is no vicarious liability in criminal law, so the representatives of a dead man are not liable for the criminal acts done by him before his death. So far as the civil liabilities of the deceased are concerned, most of them are transferred upon his representatives.

For example, a debt or damages for which a deceased was liable will have to be paid by his representatives. 

Representatives are held liable on the ground that when a valuable right of a person (against whom a wrong has been committed) has come into existence, he should not be disappointed.

A person who has succeeded to the estate of the deceased must pay, and he is liable to pay it on the same ground on which he is liable to pay a debt of the deceased. 

The measure of liability

The factors which are taken into consideration in determining the liability are the following:

• Motive: The motive of the offence is a very important factor in determining the liability. If the motive to commit the offence is very strong, the punishment must be severe, because the punishment aims at counteracting the motives which made the offender to commit the crime.
• The magnitude of the offence: The other things being equal, if an offence brings greater evil consequence or has greater evil tendencies, the punishment should be severe. 
• The character of the offender: The character of the offender is also a factor in the measure of liability, in other words, it is a consideration in determining the punishment. The offenders who have become habitual and have undergone punishment, to them punishment loses much of its rigour and light punishment does not deter them. Therefore, they are given severe punishments.