The domination of fault based liability in the twentieth century was supported by judges because it was simple in the sense that only fault had to be proven. However in Holmes v Mather (1875) provided an exception with accidents on the highway, where the claimant could sue either in negligence or trespass. The uncertainty here indicated the difficulty to which party was at fault, this lead to the burden of proving the defendant was negligent on the claimant.
The rule in Wilkinson v Downton [1897] was closely associated to trespass. The uncertainty here was that a claim in trespass is only satisfied when there is physical contact made to the plaintiff. During this period there was no liability for nervous shock in negligence therefore liability was strict. However this is no longer available because of Wainright v Home Office [2003] , it was held that there was no infringement of persons privacy as it appeared before the Human Rights Act 1998. However in Wainright v Home office the case comment (P.L. 2002 Sum 373) distinguished that there was only liability in the rule of Wilkinson v Downton if the intention to cause harm would be caused without the need to prove fault.
Fault based liability, which is essentially negligence cannot actually distinguish fault but recognises that the element of fault if absent can either be intentional or unintentional. Strict liability however does not depend upon proof of fault, therefore regardless if the fault was intentional or not the defendant is held responsible for unforeseeable harm despite taking reasonable precautions. Liability is strict but not absolute because there are defences.
Although not all torts require the intention to do wrong, in reality it imposes an expected standard of behaviour, and if the defendant fails to meet that standard of behaviour then there is a breach. Negligence liability consists of three elements which the claimant must prove, and these are duty of care, breach of that duty of care and that the claimant suffered damage caused by that breach.
In Collins v Willcook [1984], false imprisonment was defined as ‘the unlawful imposition of restraint on another’s freedom of movement’. The tort is committed if there is any act of which prevents free movement. This is necessarily does not mean that they have to be imprisoned, although some examples in recent years involve the detention of people committing crime for which there was no resole ground of supervision, White v W P Brown.
Austin & Another v Commissioner of the Police for the Metropolis, restraint must be total to amount to false imprisonment if there was an escape route there will be no false imprisonment, Bird v Jones. If the occupier of the premises decides to place reasonable conditions on people who use the premises, will not amount to false imprisonment; Robinson v Balmain Ferry.
The breach of the law of tort in strict liability gives rise to a duty to compensate the injured party. Since Rylands v Fletcher is strict liability in tort, it follows that negligence contributes no part in determining liability. However it is apparent that one element of fault is required. In Cambridge Water v Eastern Counties Leather it was required that the potential damage if it should escape must be foreseen at the time the thing was accumulated. Now the modern test for negligence is one of liability for reasonable foreseeable damage the Wagon Mound Case.
Deacone, J. (2005) has highlighted the significance of the tort in Rylands v Fletcher. He states:
‘It follows that the rule in Rylands v Fletcher remains a potent weapon for the aggrieved property owner who seeks to recoup losses caused by the spread of fire from his neighbour and is likely to remain so for the foreseeable future’.
This argument is convincing as we have to examine the history of strict liability. The motive behind this concept was that the courts in the nineteenth century had to impose liability of hazardous activity which would disadvantage neighbouring land owners. Legislation such as Animals Act 1971 has remained in England due to control mechanisms of torts such as those.
Negligence requires the existence of a duty of care, which if breached by the defendant and causes damage to the claimant that is not too remote. Policy consideration has been taken into account in deciding whether to impose a duty is just and fair. Cases such as Caparo and Murphey considered policy in consideration such as proximity and whether it is fair to impose duty. The concept of strict liability however requires no proof of fault but is determined by the defendant’s direct action.
The concept of strict liability as explained in the two torts above has provided some appropriateness to a fault based system. Fault liability is based on the judgment that the defendant should have behaved differently (for example taking certain precautions). In contrast to strict liability, it does not involve the judgment that the defendant should have behaved in a certain way. Fault liability is liability for the person behaved whereas strict liability is liability for the consequences of the person’s conduct.
In one sense, strict liability is but another aspect of negligence, both being based on responsibly for the creation of an abnormal risk
(Prosser, selected topics on the law of torts (1954) ch. 3
What is relevant in his argument is that even though there are differences between these systems, the objectives are the same. Both systems provide mechanisms to punish those who have inflicted harm. Regardless the harm was intentional or not signifies that the society we live in are concerned that the guilty must be punished. The tort of negligence has been derived from a fault based system. Society’s attitude to the fault principle has been enhanced by moral and social issues. Firstly this conception that the tortfeasor shall be punished allows the victims to seek justice; secondly that the deterrent value enhances society’s norm on issues of civil wrongs.
Negligence however has been concerned with improper manner of doing things which are safe (and therefore reasonable) enough when properly carried out, and not with activities which remain dangerous despite all reasonable precaution. The general assumption being that negligence is annulled if all reasonable let alone all possible precautions were taken. This is essential when dealing with common place, but not with extra hazardous activity as illustrated in the rule of Rylands v Fletcher.
Negative attitude towards strict liability mirrors a belief that negligence represents the only true mechanism to solve common law liability. Tony Honore’s argument of strict liability makes reference to strict liability as a matter of not fault but ‘bad luck’. This includes ordinary activity.
The developments of the tort law have changed significantly through centuries. Society’s attitude has changed towards the culture of blame and in some extent the residue of the strict liability concept in law determines that strict liability is run parallel to fault liability. For some it has been stated that these two systems are sufficient control mechanisms for persons conduct
Tort maintains normative rules in society; it does this by having present the elements of tort. These are an act, omission, causation, fault, protected interest and damage which amount to liability in tort. Therefore if one of these elements was not present then no tort is committed. The concept of strict liability has demonstrated some resemblance to a fault based system. This has been that negligence and strict liability aim to provide the victim compensation for the injury they have suffered.
Bibliography
Books
- McBride, N J and Bagshaw, R (2001) Tort law, Pearson education Ltd. Longman. England
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Kidner, R (2004) Casebook on Torts, 8th ed. Oxford university press. Oxford
- Cooke, J (2005) Law of Tort, 7th ed. London. Longman
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Harpwood, V, (2000) Tort Law, 4th ed. London. Cavendish
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Winfield & Jolowicz (1998) Law of Tort, 21st ed. London, Sweet & Maxwell
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Elizabeth A. Martin (1999) Concise Dictionary of Law, London, Oxford Paperbacks
Journals
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Deacone, J. (2005) Opening the floodgates to stop the fire? New Law Journal. 155 (7200)
Cases
- Austin & Another v Commissioner of the Police for the Metropolis [2005] EWHC 480 (QB),
- Caparo Industries plc v Dickman [1990] 1 All ER 568
- Collins v Willcook [1984],
- Holmes v Mather (1875) LR 10 Ex 261
- Robinson v Balmain Ferry [1910] AC 295
- Scott v Shepherd (1773) 2 W BI 892
- Stanley v Powell [1891] 1 QB 86
- Wainright v Home Office [2003] 4 All ER 969
- White v W P Brown
- Wilkinson v Downton [1897] 2 QB 57
Statute
- Human Rights Act 1998
- Animals Act 1971
[1983] CLY 972 Any restriction which prevents a person leaving places amounts to false imprisonment
![For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562.](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/93070/listing/93070_1.jpg)
