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The Evolution from Strict Liability to Fault in the Law of Torts

The Evolution from Strict Liability to Fault in the Law of Torts

Author: Anthony Gray
Publisher: Hart Publishing
ISBN: 9781509947126
Published In: October 2022
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Gradually, the law of tort has shifted away from a strict-liability approach to one where fault predominates. This book charts important case law documenting this shift. It seeks to understand how and why it occurred. Given that the Rylands v Fletcher decision is typically seen as a prime exemplar of strict liability, it focusses particularly on that case, as part of the historical development of tort law. It considers the intellectual arguments made in favour of strict liability, and for fault-based liability. Having done so, it then focusses on particular areas of the law of tort, including nuisance, defamation and trespass. It is somewhat anomalous that though most would view these as examples of torts of strict liability, fault considerations have become prominent in their application. This presents an uneasy compromise, where torts that are notionally strict in nature are infused with fault considerations, often through exceptions or defences. This book advocates for further development in the law of tort to better reflect a primarily fault-based approach to liability, at least in the common law. This would make the law of tort more coherent.

PART I: STRICT LIABILITY AND LEGAL HISTORY

1. Strict Liability and the Common Law

Ancient Times

English Law

Importance of Forms of Action

Influence of Criminal Law on the Civil Law

Fault becomes More (Expressly) Prominent in the Civil Law

Full Acceptance of Fault

The Important Influence of Statute on Development of the Common Law

Conclusion

2. Strict Liability and Particular Torts in Legal History

Strict Liability and Damage to Property Interests

Common Carriers

Innkeepers

Fire

Firearms

Animals

Unifying Factors, if Any, in Cases of Continued Strict Liability

Strict Liability and the Law of Defamation

Strict Liability and Trespass to the Person

Development of the Tort of Negligence

Conclusions

PART II: RYLANDS v FLETCHER STRICT LIABILITY IN THE COMMON LAW WORLD

3. Rylands v Fletcher in the United Kingdom

Introduction

Facts

Judgment of the Court of Exchequer

Judgment of the Exchequer Chamber

Judgment of the House of Lords

Reflections

Possible Explanations for the Decision in Rylands v Fletcher

Enterprise Risk-Type Philosophy

Reciprocal Risks

Subsequent UK Decisions

Conclusion

4. Comparative Approach to Rylands v Fletcher Liability

Australia

Canada

United States

Conclusion

PART III: THE THEORETICAL DEBATE: STRICT LIABILITY AND FAULT-BASED LIABILITY

5. Summary of the Theoretical Debate: Strict Liability and Fault-based Liability

Introduction

Jeremiah Smith

Young Smith

Fleming James

Gregory Keating

Utilitarian Support for Strict Liability: Jeremy Bentham

Richard Epstein

Howard Klemme

Albert Ehrenzweig

Christine Beuermann

Argument for Strict Liability based on Difficulties of Proof

Law and Economics: Guido Calabresi and Others

Judicial Consideration of these Rationales in the Context of Strict Liability

Theories against Strict Liability

Law and Economics and Negligence

Conclusion

6. Critical Reflections on the Justifications for Strict Liability

Inappropriateness of Taking into Account Loss Spreading and 'Efficiency' when Making Judicial Decisions

Inappropriateness of Focus on Deterrence

Use of Terms with Highly Contested Meanings

Liability for Non-reciprocal Risks

Who Gets the Benefits?

Difficulties of Proof

The Plaintiff 's Activity or Behaviour

Conclusion

PART IV: FAULT IN OTHER TORTS

7. The Tort of Nuisance and Fault

History and Early Development

Developments in UK Nuisance Law in the Last 50 Years

Some Australian Authorities

Academic Views

Reflections

Conclusion

8. Strict Liability in the Law of Defamation

Introduction to Freedom of Speech

Development of Law of Defamation

Early Examples of the Strictness with which Liability Attached for Defamation

Strict Liability Elsewhere in the Common Law World

Fault Considerations in UK Defamation Law

Introduction of Fault and Negligence Principles to American Defamation Law

Reflections

Conclusion

9. Trespass and Fault

Convergence of Trespass and Negligence – Case Law

Convergence between Trespass and Negligence – Academic Views

Conclusion

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