Rethinking fault liability and strict liability in the law of torts

Abstract

One of the most powerful influences on thinking regarding tort law is the distinction between fault liability and strict liability. It is vir­tually omnipresent in the cases and scholarship. This article argues that the ubiquitous practice of pigeonholing torts according to the categories of fault liability and strict liability is, at best, se­riously misleading. It conceals the complexity of tort law and obscures more than it illuminates. Four arguments are made in support of this claim. The first is that many, and perhaps most, torts are amalgams of the two forms of liability. As we will see, it is common for torts to have several conduct elements and for only some of those elements to be paired with a fault requirement. Such torts make use of both fault liability and strict liabil­ity. The second and third arguments concentrate on supposedly strict liability torts. It is contend­ed that the practice of labelling torts as ones of strict liability fails to take account of fault-based defences thereto as well as the fact that so-called strict liability torts have the potential to impose liability on defendants who were in fact at fault. The fourth argument focuses on the doctrine of vicarious liability. The simple point made is that the rules regarding vicarious liability ensure that responsibility in tort is overlain by a sub­stantial stratum of strict liability. Each of these arguments is independent of the rest. The first takes a little longer to establish than the others, but the others are in no way contingent upon or secondary to it.