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

Anthony Gray

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509941001
• Edition: 1
• Topic: Jura
• Subtopic: Schadenersatzrecht

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

It is important to consider the development of strict liability¹ for personal injuries in the context of the blood feud. Traditionally, those who believed that another had wronged them would resort to self-help, including violence against the one thought to have been responsible. In other words, a system of vengeance was in operation. There is evidence of this in a range of early legal systems, including the Babylonian Code of Hammurabi (circa 1900 bc) and Assyrian Code (circa 1500 bc).² Wigmore refers to an ‘instinctive impulse, guided by superstition, to visit with vengeance the visible source … of the evil result’.³

Malone describes it thus:

The primordial seed from which both crime and tort were to germinate was the blood feud that was characteristic of any barbaric society organized along the lines of blood kinship. The defence of the honour of the clan by resort to warfare against the harm-inflicting outsider and his entire kin was a traditional practice with roots deep in the need for survival of the family unit. The outrage that cried for revenge lay not so much in the desire to enforce atonement for the bodily harm inflicted upon the wounded family member as in the humiliation that was suffered by his entire kin group.⁴

Decision makers determined that individuals should not resort to the blood feud in order to ‘resolve’ disputes among members of society. The law had a role to play here.⁵ In order that individuals would be dissuaded from such an action, it was determined that a payment system ought to be introduced. Under this system, the wrongdoer would pay a specified amount to the person they had wronged. This system appears in the Code of Hammurabi, Laws of Eshnunna and in Greek texts.⁶

It is also evidenced in Roman times in the Twelve Tables (circa 450 bc). These Tables contained precise amounts to be paid for particular injuries. The Tables reflect absolute liability for loss that the defendant causes to another. They do differentiate between cases where the loss was caused inadvertently or deliberately, with punishment in the latter case, and payment of compensation in the former case. The amount of compensation payable depended on the status of the victim,⁷ reflecting the irrelevance of the culpability of the alleged wrongdoer.

The Lex Aquilia (circa 287 bc) also reflected this. Under it, for example, anyone causing wrongful loss to another by ‘burning, smashing or maiming unlawfully’ would have to pay the injured person compensation. This reflects concepts of injuria and damnum, but not culpa.⁸ Compensation was independent of either intention or negligence. Jansen says that Roman law only embraced notions of culpa (fault) a century-and-a-half later.⁹ Ibbetson refers to the Roman law as ‘result oriented’ rather than based on notions of fault.¹⁰ It was primarily punishment and revenge oriented, rather than compensatory.¹¹

Some vestiges of (physical) vengeance would remain. For example, where the ‘wrongdoer’ was an inanimate object, the person wronged could exact revenge against such an object by demanding its destruction, forfeiture or removal from the jurisdiction. This ancient right continues today in the form of the deodand.¹² And if the wrong were caused by a person’s slave or animal, the law might require its relinquishment to the person injured.¹³ These rights existed despite the absence of any fault on the part of the owner of the thing (or person) forfeited.¹⁴

Because these systems were designed to avoid the blood feud, they were understandably quite generous, and compensation was relatively easy to obtain. Specifically, all that the plaintiff was required to show was that the defendant had caused the plaintiff’s injuries. It was not necessary for the plaintiff to show that the defendant was at fault or was to blame for the plaintiff’s injuries. This observation is succinctly captured by Sayre:

The law, which was seeking to supplant the blood feud by inducing the victim or his kin to accept money payments in place of taking violent revenge, seemed to concentrate its gaze rather upon the outraged victims or would-be avengers who must be brought under control than upon the actual blameworthiness of the accused … the law thus set forth smacks strongly of liability without fault.¹⁵

Pollock makes the same point:

[I]n a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor’s intention; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man’s acts, tempered only by partial exemption in the hardest cases.¹⁶

However, Roman law would evolve. Its concept of injuria began to evolve from mere unlawfulness to embrace culpa. Ibbetson notes that by the second century ad (civil) liability depended on the culpa (fault) of the alleged wrongdoer.¹⁷ Gaius’ Institutes of the second century reflects evolution of the Roman law, away from automatic (civil) liability for loss caused to another, to embrace notions of culpa (fault). Civil liability was defined thus: ‘A person is understood to kill wrongfully when it occurs by his deliberate act or his fault. And loss caused without wrongfulness is not condemned by any other lex; hence a person who causes some loss without fault or deliberate intent, but by accident, is not punished’.¹⁸

English Law

There is substantial evidence of the reception of these ideas and trends into English law. Initially, a strict liability approach seems to be evident,¹⁹ similarly with a view to suppressing the blood feud.²⁰ One example is found in the laws of Alfred. Alfred 16 states that ‘if a man have a spear over his shoulder and any man stake himself on it, then he (the man with the spear) pays (compensation to the victim)’.²¹ So the Leges Henrici Prima of circa 1118, Chapter 8 s6, notes qui inscienter peccat scienter emendet. In other words, that a person who commits wrong unknowingly must pay for it knowingly. The law at this time contains various examples of cases where a defendant will be liable:

•misfortunes taking place by accident, rather than by design;

•a person engaged in a mission for the defendant meeting death while so engaged;

•the defendant asks another to visit them, and the would-be visitor is killed on the way;

•the defendant lends their horse to another, and the other is injured while engaged with the horse.²²

There is no suggestion in any of these cases that the defendant is only liable when they are shown to have been at fault in relation to these accidents. The mere fact that the plaintiff suffered injury in such circumstances is apparently sufficient to place liability on a defendant who caused it.²³ Legal historians William Holdsworth,²⁴ and Frederic Pollock and Frederick Maitland,²⁵ make the same point. Henry II maintained this position, again seeking to suppress the blood duel and private vengeance.²⁶ The wrongdoer would pay bot (compensation) to the person injured and wite (a penalty) to the monarch.²⁷ Legislation of the day also reflects notions of strict liability.²⁸ Wigmore states that ‘in the thirteenth century … in England … in probably all torts the harmdoer paid some compensation to the injured party’.²⁹

There are examples of this position in the English case law of the time. One is provided in 1466’s Case of Thorns. There it was stated that ‘though a man doth a lawful thing, yet if any damage do thereby befall another, he shall answer for it, if he could have avoided it’, and that ‘where a man does a thing, he is held to do it in such a way that through his act no prejudice, or damage, shall happen to others’ (Brian J).³⁰ Littleton J states that ‘if a man is damaged he ought to be recompensed … if your cattle come on my land and eat my grass, notwithstanding you come freshly and drive them out, you ought to make amends for what your cattle have done’. The orthodox view is that Brian and Littleton JJ were expressing a strict liability standard.³¹ On the other hand, Choke J suggested a possible defence if the defendant could show that he had done all he could reasonably could to avoid the damage to the defendant’s interests. Some view this as a crude early example of what would later be regarded as a negligence principle. Others regard it as an early example of the defence of inevitable accident, which they regard as different to a negligence principle.³² This is discussed in more detail below.

Though the context of the Case of Thorns was a case of trespass to land, the comments appear to state a general principle that is not confined to that particular scenario.³³ Subsequent case examples would demonstrate the applicability of the principle to personal injury, not just interference with land interests.

In the 1506 Tithe Case, Rede J states:

Although the defendant’s intent here was good, yet the intent is not to be construed, though in felony it shall be, as where one shoots at the butts and kills a man, this is not a felony, since he had not intend to kill him; and so of a tiler on a house where against his knowledge a stone kills a man, it is not felony. But where one shoots at the butts and wounds a man, although it be against his will, yet he shall be called a trespasser against his will.³⁴

Another appears in the 1681 decision of Lambert & Olliot v Bessey.³⁵ There the reporter states that civil liability did ‘not so much regard the intent of the actor, as the loss and damage of the party suffering’, suggesting that culpability or fault was not relevant to liability at this time. They gave an example: ‘if a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies against me, and yet I did a lawful thing. And t...