Civil law also incorporates the idea of fault into its system. Liability for negligence only arises when the defendant has breached his duty of care to his neighbour and harm occurs as a result of this. In these circumstances fault is defined as falling below a standard of conduct expected of the reasonable person in those circumstances.
Although there is evidence to suggest that fault is in fact an essential element in liability, there is some evidence to weaken this theory. Firstly, it is possible that in practice, liability can hinge on chance as well as fault. This can be illustrated using a number of cases, including R v White. In this case the defendant tried to poison his mother but she ended up dying of natural causes before the poison could take effect. Because of this he was not able to be convicted of attempted murder. The defendant clearly had the necessary mens rea, he intended to kill his mother, but chance meant his mother died of natural causes, just a few moments later and maybe the poison could have had an input. However, the poison did not cause the prohibited result so he was not criminally liable. Also, in R v Mitchell, the defendant pushed a man in a queue, who in turn fell against another, who in turn fell against an elderly lady who had to have an operation from which she died. The Court of Appeal ruled that transferred malice applied to unlawful act manslaughter. Chance played in a part in this case too, as it just so happened that the elderly lady was in that queue, that the person he did push fell, not only falling onto someone else, but then that person falling onto the old lady. It was chance therefore in this case that enabled the defendant to be liable for the death of the lady, instead of maybe just for the battery of the first man in the queue. Both these cases illustrate that fault alone is not just what determines someone’s liability; chance can often play an essential part too. Indeed, sometimes fault may be left out altogether from the equation, in crimes of strict liability.
Fault can be further understood when looking at negligence. Negligence is carelessness, the defendant wasn’t thinking like the ordinary reasonable person would have done, it’s a lack of thought as oppose to actual thought, not taking enough care that the ordinary reasonable person would have done. In the case of Gibbons and Proctor, Proctor actually wanted the girl dead and so she was convicted of murder as she intended to kill, however Gibbons was merely negligent he wasn’t taking enough care of the child thus he wasn’t convicted of murder he was only convicted of GNM. It must be questioned as to the importance of fault here, negligence is a very low level of fault, it’s not thinking of something you should have thought yet it can lead to a conviction of manslaughter, a homicide conviction. It would seem therefore that fault doesn’t seem to be that important here because you can still convict someone of manslaughter however if you are convicted of manslaughter the judge in that case has complete discretion over sentencing. However still should fault not be more important in this instance, should there not be a higher level of fault than mere negligence. The judge can give an absolute discharge if they chose to do so, if we take in to account proportionality, this is still recognised in the sentence however the defendant would still be labelled as a murderer. In cases involving negligence, the neighbour principal, established in Donoghue v Stevenson is used to determine whether or not the defendant was at fault. This involves looking at whether there a duty of care that was breached, causing the damage to occur, as it was deemed unfair to expect the individual to be liable for people to whom a duty of care cannot be found. The defendant will not be found to be at fault if they have taken reasonable steps to avoid damage occurring, which meet the standards of care that an ordinary and reasonable person would take.
The concept of fault is also central to criminal law, for example at trial the prosecution will try to show that the defendant was at fault, whilst the defence aim to show that they were not at fault, and during sentencing the amount of fault which the defendant is considered to have will affect the severity of their sentence.
The highest level of fault comes in crimes which were committed intentionally, with the defendant setting out to commit the crime, perhaps having planned it first. The next type of fault is recklessness, which following G v R will always be subjective, which is less serious as there was no intention to commit the crime. However this is still a serious form of fault as the defendant has foreseen a risk.
The use of fault in strict liability crimes has been quite controversial as in these crimes the courts are able to assign fault without the presence of a mens rea, so long as the actus reus has been committed. For example, in The Pharmaceutical Society of Great Britain v Storkwain, a pharmacist was found guilty of supplying a drug to an addict on a forged prescription despite there being no fault on his part, which many would view as being overly harsh given that by the ordinary person’s standards he would not be considered to have been at fault.
Strict liability offences are those where a conviction results from proof of mens rea alone. There is no actus reus requirement, and therefore no need for the defendant’s degree of fault to be established. For example, in the case of Callow v Tillstone, a butcher was convicted of selling meat unfit for human consumption even though it had been inspected and approved by a qualified vet before hand. Similarly, in Smedley v Breed, the defendant was found guilty of selling unfit food even though only four tins out of three million tested were found to contain caterpillars. One case that illustrates absolute liability is R v Larsonneur. The accused was an alien the subject of an exclusion order under which it would be an offence for her to enter the United Kingdom. She was brought to the United Kingdom handcuffed to the police and very much against her will and yet she was still convicted for violating the exclusion order. It is clear that in these examples from the criminal law there is some liability being imposed in the absence of fault.
These exceptions can also be found in civil law, although limited. Perhaps the major instance of liability being imposed without fault in tort can be found in the area of vicarious liability. This is when one person is held liable for the tort of another person. This was a practical mechanism established to find someone who was able to pay for damages to the claimant, primarily in respect of the employer for the torts of the employee. Obviously it would be in the claimant’s best interest if they could obtain damages from a large employer for the actions of an individual employee. The justification for this is that the employer should be able to exercise control over their employees and so they can be held liable for the torts of their employees providing that the employee is not on a ‘frolic of his own’. This can be seen in Rose v Plenty where the employers were liable when an employee gave a lift to a person, who subsequently assisted with the deliveries that were the job of the employee and died. In some circumstance liability is still imposed even when the employer gave express and implicit instructions to the employee not to do the very thing that he then did so incurring vicarious liability on the employer.
Therefore, whilst this handful of examples of some of the exceptions, both in criminal and civil law, to the general case, they are sufficient to show that the statement that there can be no liability without fault is too general to be true, thus weakening the argument that fault is an essential element in determining liability.
Similarly controversial is the use of fault in State of Affairs crimes, where the defendant may have involuntarily committed an offence, yet are still guilty. One such example is Winzar v Chief Constable of Kent in which a drunken man was taken from a hospital onto a road outside by the police, and then arrested for being drunk on the highway, even though he would never have made it onto the highway without the “help” of the police. As with Strict Liability crimes, the ordinary person would not see the defendant as being at fault here, and may view the use of fault in this area of the law as being unfair.
The issue of fault is even present in defences, in that aggravating and mitigating factors can be used to lessen the amount of fault which the defendant is thought of having. For example someone on bail who plans an attack on an old lady will be seen as being more at fault than someone committing their first offence and entering an early plea of guilty.
The concept of fault therefore is present in many areas of law, both civil and criminal. In many cases, without the need to prove fault, system would not work as it is necessary for one party to be blamed for the criminal offence in order to settle it.
