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

Description

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 the shift occurred. Given that the Rylands v Fletcher decision is typically seen as a prime exemplar of strict liability, it focuses 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 focuses 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 make it more coherent, and to better reflect a primarily fault-based approach to liability, at least in the common law. Volume 37 in the series Hart Studies in Private Law Contents Introduction 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 Casesof 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 Trespassand Negligence – Academic Views Conclusion Conclusion Index