Fault liability

"It is a principle of fundamental importance in English law that there should be no liability without fault". Consider how far fault is an essential requirement of liability in English law, and discuss the suggestion that fault should be an essential requirement. The English Law considers that for a person to be legally responsible for his actions or oversights it is essential to have evidence that he is at fault or to some extent culpable.

This theory of "no liability without fault" is a frequent theme passing through the English Legal system; it indicates the English notion of justice that for liability to be enforced, fault must be demonstrated. Thus conferring a level of blame on the person involved. To determine the circumstances in which a person may be legally liable for his acts or omissions is indeed one of the most fundamental functions of law in any society. The basis on which liability has traditionally been attached is on the basis of fault.

Usually the law hinges both criminal and civil liability on fault (although in varying degrees), which initially would suggest, that fault is an essential element in liability. In criminal law the requirement that mens rea (unlawful state of mind at the time of the offence) be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed.

The fact that this degree of blameworthiness not only determines whether the defendant will simply be found liable or not, but is concerned with the punishment, deterrence and rehabilitation of individuals whose conduct is considered by the law to be not only wrongs against other individuals, but also against society as a whole, would suggest fault is clearly an essential element. To determine fault the person in question must understand the nature of their actions, be able to exercise control over their actions and must have genuinely chosen to act as they did.

Because of these three requirements, it means a person's degree of fault can be reduced if it can be said they are insane, in dole capax (incapable of a crime i. e. a child under the age of ten), or have acted under duress. The recognition of being insane or in dole capax clearly means that they were not able to fully understand the nature of their actions, whilst acting under duress results in them not being able to choose to act as they did. It is also possible that they may not have the capacity to make a genuine choice.

In these circumstances it can still be said that the defendant is at fault, but only partially. So in conclusion with regards to criminal law, fault is seen to be central to crime in the form of mens rea. Without this element being satisfied the defendant cannot be found to be criminally liable, (with the exception of crimes of strict liability. ) There are three distinct degrees of fault in criminal law, namely, intention, recklessness and negligence. The more at fault a defendant is, the highest degree being intention, then the more they will be held responsible for their crimes.

Such as with regard to negligence, with its purpose being to compensate a victim for the blameworthy actions of another, (which was laid out by Lord Atkin in Donoghue v Stevenson (1932) whereby he said 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour… ') if an individual falls below the required standard of care towards our legal neighbour, they would therefore be in breach of that duty; that is to say, to be at fault.

There is also evidence to support this when looking at the two broad categories of crimes: Specific intent crimes and basic intent crimes. Crimes of specific intent consist of those where the mens rea must be intention. Since these crimes hinge upon the highest degree of moral blameworthiness, the greatest degree of fault, they apply to the most serious crimes, such as murder, section 18 GBH and wounding offences, robbery and burglary for example. Subsequently, these crimes also carry the most severe sanctions.

Basic intent crimes however need a mens rea of recklessness or negligence to prove criminal liability. Therefore, it can be considered that a defendant in a reckless state of mind is less at fault than one possessing the necessary intention, so these crimes tend to carry less maximum prison sentences for example. Involuntary manslaughter, section 20 GBH and wounding offence, assault and ABH are all included in the definition of basic intent crimes. The reasoning behind these categories can be illustrated using Oatley (1995).

The defendant in this case was suffering from severe postnatal depression when she killed her 11-day-old baby by swinging the baby's head against the stairs. Although she was of sound mind this act would have been given a very severe punishment, probably a lengthy prison sentence, she was given a two year probation order and medical treatment. Clearly the defendant was at fault, but only partially due to the postnatal depression. The degree of fault that she possessed at the time of the actus reus was impaired and therefore the degree of punishment should reflect this.

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. Conversely, however it is possible that in practice, liability can be determined through a whole number of things, such as on chance, as illustrated 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 liable and 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 post office queue, who in turn fell against another, who in turn fell against an elderly lady who had to have a hip operation from which she died.

The Court of Appeal ruled that transferred malice applied to unlawful act manslaughter. Chance played 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 a part too.

Consequently, sometimes fault may be left out altogether from the equation in determining criminal liability, such as in crimes of strict liability. Strict Liability offences are those where a conviction results from proof of actus reus alone. There is no mens rea requirement, and therefore no need for the defendant's degree of fault to be established. For example, in the case of Callow v Tillstone (1900), 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 (1974), the defendant was found guilty of selling unfit food even though only four tins out of three million tested were found to contain caterpillars. It is clear that from these examples that in criminal law there are some cases of liability being imposed in the absence of fault. These exceptions can also be found in civil law, although less so. Possibly 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 from the torts of the employee. Obviously it would be in the claimants' 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 (1976) where the employers were vicariously 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, these 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. Whether fault should be essential in determining liability is a further question. If there were no concept of fault in the English Legal System then liability would all be based on proof of actus reus alone.

This is not only undesirable but also could be considered unfair. It would result in people being liable for sheer accidents, possibly resulting in their loss of freedom simply because of chance. This is clearly not justice. It would lead to some very unfair results, leading to the criminal conviction of people who have not done anything that would be described as morally wrong. If liability were to abandon the idea of fault then it could also mean that people could go as far as to lose their freedom for something that they are not blameworthy for.

At the moment, strict liability convictions will not usually lead to imprisonment if the courts believe that the defendant did all he reasonably could. Also the notion of a deterrence would be gone without the requirement of fault on the basis that the crime would be seen to be out of their control, leaving little incentive to prevent the crime in the first place. There are various examples of where this theory can lead to unfair results. In Prince (1875) a man was convicted of unlawfully taking a girl away from her parents without their permission even though the girl had looked much older and had lied about her age.

Also, in Pharmaceutical Society v Storkwain Ltd (1968), the defendant was convicted of selling drugs contrary to the Medicines Act 1968; after he had dispensed the drug only after being given a forged prescription that he had no reason to believe was forged. Also as in Sweet v Parsley where by the owner of a to-let house was convicted of growing cannabis, even though she had no knowledge of it being there, and it was ruled that the 'law does not seek to make criminals'.

Whilst it may prove desirable to adopt a strict liability approach in areas such as the Road Traffic Act 1988 concerning driving whilst under the influence, to ensure high standards and act as a huge deterrent for such a dangerous action, it is believed that it would very undesirable if fault was not an essential part of liability. It would result in people being liable due to chance, and people being convicted of events that should be taken as accidents, which would arguably not be just.

However with the inclusion of fault in liability, an objective standard of behavior can be reached, which in its ignoring of the individuals knowledge or capability allows for a standard applicable to all, in order to maintain that standard. Such as with the law on driving; there is the same objective standard of care for all drivers regardless of driving experience, this is deemed to be beneficiary as an essential requirement in order to maintain a liability to be safe on British roads. Also although fault is generally requisite, there are instances of absolute liability in the absence of fault.

And such instances are not confined to any one or two of these various kinds of tort, but are liable to occasionally occur in any or all of them (except Malicious Prosecution). Under the classification suggested, such as instances would belong, not under torts, but under the third class of absolute liability. Thus in conclusion the principle that it is important in English law that there should be 'no liability without fault' as a requirement of liability allows centrally for in criminal law for the element of mens rea, and the level of culpability associated with it and maintains an element of fairness in proceedings.