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“That any occupier of land who brings or keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence....a principle derivatively created from the rule of 'strict liability'....as canal systems are essential to the life of a nation and land that is used as canals is subjected to an ordinary use and not to unnatural use.” The Court preferred to rely on the principle developed by American Courts on canal breaks and applied the principle of 'fault liability' which may even be inferred from circumstances. The view of the High Court, therefore, that the rule of strict liability was modified by this Court in Modern Cultivators does not appear to be correct. 'Absolute liability', or 'strict liability' and 'fault liability' do not go together.” In Jay Laxmi's case, damage was caused by overflow of water from a reclamation bundh constructed by the State of Gujarat for reclamation of vast area of land from saltish water of sea. In this case, this Court held the Government responsible as the said act was treated as violation of public duty and negligence which lay in defective planning and construction of the bundh. On that premise, damages were awarded. The Court explained the jurisprudence of liability in torts and also the two principles, namely, 'strict liability' and 'fault liability', in paragraph 8 and thereafter enumerated other circumstances which may fall in-between 'strict liability' and 'fault liability', in paragraph 9. We would like to quote hereinbelow these two paragaphs for our benefit:

“8. Winfield has defined tortious law arising from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse.

“The law of torts exists for the purpose of preventing men from hurting one another whether in respect of their property, their presence, their reputations or anything which is theirs.” Injury and damage are two basic ingredients of tort. Although these may be found in contract as well but the violations which may result in tortious liability are breach of duty primarily fixed by the law while in contract they are fixed by the parties themselves. Further in tort the duty is towards persons generally. In contract it is towards specific person or persons. An action for tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of the invasion of a legally protected interest. But law of torts being a developing law its frontiers are incapable of being strictly barricaded. Liability in tort which in course of time has become known as ‘strict liability’, ‘absolute liability’, ‘fault liability’ have all gradually grown and with passage of time have become firmly entrenched. ‘Absolute liability’ or “special use bringing with it increased dangers to others” (Rylands v. Fletcher [LR (1868) 3 HL 330 : 37 LJ Ex 161 : [1861-73] All ER Rep 1] ) and ‘fault liability’ are different forms which give rise to action in torts. The distance (sic difference) between ‘strict liability’ and ‘fault liability’ arises from presence and absence of mental element. A breach of legal duty wilfully, or deliberately or even maliciously is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight etc. is strict liability. Since duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation etc. In Donoghue v. Stevenson[(1932) AC 562 : 1932 All ER Rep 1] a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. In Anns v. Merton London Borough Council [(1978) AC 728 : (1977) 2 All ER 492] it was, rightly, observed:

9. In between strict liability and fault liability there may be numerous circumstances in which one may be entitled to sue for damages. And it may be partly one or the other or may be both. In a welfare society construction of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit of society cannot be non-natural user. But that cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and result in damage, loss or injury. What is fundamental is injury and not the manner in which it has been caused. ‘Strict liability’, ‘absolute liability’, ‘fault liability’ and ‘neighbour proximity’ are all refinements and development of law by English Courts for the benefit of society and the common man. Once the occasion for loss or damage is failure of duty, general or specific, the cause of action under tort arises. It may be due to negligence, nuisance, trespass, inevitable mistake etc. It may be even otherwise. In a developed or developing society the concept of duty keeps on changing and may extend to even such matters as was highlighted in Donoghue v. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] where a manufacturer was held responsible for injury to a consumer. They may individually or even collectively give rise to tortious liability. Since the appellant suffered loss on facts found due to action of respondent's officers both at the stage of construction and failure to take steps even at the last moment it was liable to be compensated.” The Court, thereafter, explained that in order to become a claim as actionable claim, it is necessary to determine that the defendant was guilty of negligence.