This would not be justice

It is clear that in these examples from the criminal law there is some liability being imposed in the absence of fault. These exceptions can also be found in civil law, although limited. Perhaps 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 plaintiff, primarily in respect of the employer fro the torts of the employee.

Obviously it would be in the plaintiff's 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, whilst this handful of 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 another matter. 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 unacceptable. 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 loose their freedom for something which 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. 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. Not only is it unfair but some argue that it is unnecessary. In Australia a defendant who acted reasonably may use this as their defence. In this way the public are still protected from unscrupulous corporations and individuals without the need for manifestly unfair convictions.

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, I believe 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. This would not be justice.