Fault Flashcards
(18 cards)
fault meaning
Fault = describe idea of culpability or blameworthiness
English Law: liability is generally dependent upon being at fault, i.e. blameworthy or culpable.
fault intro
Tort of negligence: based on fault as requires proof on the balance of probabilities that D failed to meet the standards of care reasonably expected of him (Nettleship v Weston)
Criminal law: people are guilty, being to blame beyond reasonable doubt. Based on fault as the requirement of mens rea and voluntary actus reus is used to decide if D has criminal intent when he commits the act and is therefore at fault for the crime.
BUT, there are examples in both criminal and civil law where no fault is required to result in liability.
In these situations, other considerations outweigh the interests of the individual involved.
liability depending on fault
Fault is generally an essential requirement of liability in the law of tort; D will not be liable unless fault can be established.
• duty of care/ breach of duty
• causation and remoteness
• damages
• vicarious liability
• contributory negligence and defences
liability depending on fault
- duty of care/ breach of duty
Liability in negligence requires a duty of care (Caparo) that is breached.
Breach arises when D fails to act, as the “reasonable man” would have done (Blyth v Birmingham Waterworks)
The court considers categories of D and risk factors:
- proffesional D (Bolam v Friern Hospital)
- medical professional D (Montgomery)
- children (Mullin v Richards)
- NOT inexperienced/learners (Nettleship v Weston)
- magnitude of risk (Bolton v Stone)
- practicality of taking precautions (Latimer v AEC)
- special characteristics of C (Paris v Stepney BC)
- social utility (Watts v Herts)
liability depending on fault
- causation/remoteness
D must factually/legally cause of the damage.
D will only be liable if the damage caused was as a result of the breach (Barnett v KH - but for).
If there are other contributory factors, then liability only established if Ds acts more likely the cause than all others combined (Wilsher)
Liability will not be imposed unless the type of harm suffered was reasonably foreseeable (Wagon Mound)
Causation maintains the link between fault and liability
liability depending on fault
- damages
The award of damages is clearly based upon fault; the purpose of damages is to place the claimant (C) in his pre-tort position (compensatory).
Also, damages will be reduced where C has contributed to his loss (partly at fault) - contributory negligence (Jebson v MODY)
liability depending on fault
- vicarious liability
D is responsible for the wrongdoing of another person for whom they are responsible, e.g. employers may be liable for their employees (Rose v Plenty)
Although not directly at fault:
- there must be some form authorisation (Salmund: (1) wrongful act authorised by employer, (2) authorised act carried out in unauthorised way)
- there must be a sufficiently close connection between position of employment and the wrongdoing that makes it fair/just to hold employer accountable (Lister)
BUT: not depending on fault when still liable for an act that is expressly prohibited (Limpus)
liability depending on fault
- contributory negligence and defences
law recognises D may have been negligent but, may still not be blameworthy
- contributory negligence
- volenti non fit injuria (consent)
- provision of warnings (eg Occupiers liability) (Rae v Mars)
liability not depending on fault
There are situations were liability occurs with limited/no fault.
• gross negligence manslaughter
• rylands v fletcher
liability NOT depending on fault
- gross negligence manslaughter
Where D owes a duty of care, he may be criminally liable for manslaughter where he causes the death of someone as a result of gross negligence (Adomako)
Although D causes Vs death, this is an objective test taking no account of D’s actual state of mind.
No need for D to intend/foresee death/injury
liability NOT depend on fault
- Rylands v Fletcher
No need to prove fault.
Rylands v Fletcher = strict liability tort; no proof of fault or negligence was needed.
However, since Cambridge Water v ECL negligence principles have applied in respect of the type of damage caused having to be foreseeable.
This reflects the importance placed upon fault
liability SHOULD NOT depend on fault
1) no-fault liability is essential in order to protect the public interest
2) Individuals are responsible for the consequences of their actions.
3) encourages businesses and property owners to exercise greater vigilance (deterrent)
liability SHOULD NOT depend on fault
- no-fault liability is essential in order to protect the public interest
law protects/promises interests of the public, given priority over requirement for fault in individual offenders
business owners accept risks as well as benefits associated with the business (Rose v Plenty) - and are in a stronger position to insure against/meet any claims
strict liability/ vicarious liability -> less likely innocent victim will be left without redress (leave V without remedy is a greater injustice than penalising blameless D)
liability SHOULD NOT depend on fault
- Individuals are responsible for the consequences of their actions.
individual responsibility = ppl are accountable for their actions and for the harm they cause
strict liability holds businesses responsible for harm caused, even if unaware of it and taken all reasonable care (Smedleys v Breed)
liability SHOULD NOT depend on fault
- encourages businesses and property owners to exercise greater vigilance (deterrent)
Lord Scarman was convinced strict liability would act as a deterrent (Gammon)
eg occupiers liability “reasonably safe”
liability SHOULD depend on fault
- No-fault liability does NOT better protect the public and standards are NOT raised through the deterrent value.
- Inherently unjust to impose liability without establishing fault on the part of D
liability SHOULD depend on fault
- No-fault liability does NOT better protect the public and standards are NOT raised through the deterrent value.
No-fault liability can’t be justified merely to provide someone to compensate innocent victims.
Would be fairer/more efficient to introduce either wider insurance schemes or a no-fault government-sponsored compensation system.
Little evidence to suggest that no-fault liability encourages higher standards (Callow v Tilstone): no due diligence defence - can’t prepare against unforeseen outcomes
Vicarious liability is unlikely to alter the behaviour of employees who disregard employers instructions (Limpus)
liability SHOULD depend on fault
- inherently unjust to impose liability without establishing fault on the part of D
View that individuals/businesses may be held responsible for the unforeseen, or unforeseeable, consequences of their conduct conflicts with our sense of justice and fairness.
unfair to impose liability upon a person who has taken all reasonable care to prevent an undesired outcome.
Reflects badly upon a free society that people may be punished (even deprived of their liberty) when they are morally guiltless
Even if some no-fault offences attract only minor penalties, it is still unjustifiable that blameless people should be punished at all.
Law should serve as a guide to behaviour, enabling people to amend their conduct to comply with society’s requirements, No-fault liability does not allow for this. (Storkwain could occur again and again)
