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The word `tort' derives from the latin `tortus', which means `wrong' in the sense of `wrongdoing'. The notion of fault, or wrongdoing, or blameworthiness is buried in the very meaning of tort. We all have a common-sense notion of what it means for a person to be `at fault' or `blameworthy'. Yet the approach of the courts to fault in the law of tort has been far from consistent, not just in the UK but in other common-law jurisdictions. This article considers what fault must be proved by the claimant in the various torts that are frequently the subject of litigation, and how this fault relates, if at all, to blameworthiness.
We will start this investigation with one of the most fault-centered torts: negligence. The general principle, which follows from DonoghueVStevenson1932 and the raft of cases that followed it, is that for liability to be established, the defendant must be in breach of a DutyOfCare to the claimant. To be in breach, the defendant must do something that a reasonable person would not do, or omit to do something that a reasonable person would do (BlytheVBirminghamWaterworks1856). The fault, then, is a failure to take reasonable precautions to avoid causing harm to the people that one ought reasonably to foresee will be put at risk. This seems clear enough, but can this kind of fault be equated to blameworthiness? In the case of NettleshipVWeston1971, a learner driver was held liable for the injuries she caused to her instructor by her incompetent driving. There was no doubt that the defendant was driving to the best of her limited abilities, and if she was in a situation where these abilities were insufficent, the fault was that of the instructor. The defendant was not `at fault' in the sense we normally use of the phrase, and yet was held liable. Very often, a person who is found to be negligent will be blameworthy in the ordinary sense of the word, but it is not by any means a prerequisite for liability.
If the notion of `fault' in negligence may not always accord with the common-sense notion of blameworthiness, the role and nature of fault in torts of tresspass if even less clear.
Historically, all forms of trespass seem to have been decided without reference to fault. To succeed, it was only necessary for the claimant to show that he suffered as a result of a specific, actionable interference with his rights by the defendant, and that the interference was direct. For example, in BaselyVClarkson1681 the defendant had cut grass on land belonging to the claimant. It appeared that the defendant honestly believed the land was his own; very possibly that belief was reasonable in the circumstances. Nevertheless, he was held liable to the claimant. Trespass had to be voluntary, in the sense that claimant had to show that the defendant intentionally did the things that comprised the trespass, but it was not necessary to show that the defendant intended to trespass. However, in StanleyVPowell1891, it was decided that an element of fault was required at least in trespasses to the person. In that case, a bullet from the defendant's gun ricochetted off a tree stump and struck the claimant. The claim failed, because the claimant had not shown any fault on the part of the defendant. He had not fired the gun carelessly, and could not have been expected to foresee the accident. However, perhaps in order to maintain the distinction between tresspass and the emerging law of negligence, Stanley created the principle that in tresspass, the burden of disproving fault lay with the defendant; in negligence, of course, it is the claimant's job to prove fault. As negligence continued to expand, cases involving tresspass were often decided on the same fault basis as negligence. This was formally recognized in FowlerVLanning1959, when the claimant sought to rely on the traditional view that the burden of proof was on the defendant. His claim failed, because it disclosed no cause of action. Trespass to the person, at least, required some kind of fault, and it required the claimant to prove it.
It was still unclear what kind of fault was required. Would carelessness suffice, or did it have to be recklessness or even intention? In LetangVCooper1965, the claimant sought to argue that trespass to the person required only carelessness -- negligence -- as its fault element. She did this because her claim was timed out if it was brought in negligence, but still in time for trespass. However, the Court of Appeal held that carelessness would not suffice in tresspass to the person; some degree of advertence was required. So the fault element in trespass to the person became essentially the same as assault and battery under criminal law -- intention, or subjective recklessness. It remains unclear whether `intention' will have the same meaning in tort as it does in crime.
It also remains unclear whether the changes to the fault requirements in tresspass to the person apply also to trespass to the land. The balance of opinion seems to be that they do not, and that trespass to land remains a tort of strict liability -- no fault required -- although even strict liability torts such as the RuleInRylandsVFletcher seem not to be quite as strict as they once were -- more on this later.
This one, at least, is easy. Vicarious liability seems to be strict; there is no fault requirement on the part of the defendant, and there is not even a test of remoteness as their now is in nuisance. A possible justification for this state of affairs is that employers are charged by statute to carry insurance against the kinds of risks that give rise to vicarious liability.
At common law, a manufacturer's liability for defective products is fault-based. He will be liable if he fails to exercise reasonable care to ensure that the product is safe for consumers. The burden of proof of fault is on the claimant, and historically it was always a difficult burden to discharge. In EvansVTriplex1936, for example, the claimant was injured when his glass windscreen shattered unexpectedly, one year after installation. He could not show that the manufacturer was responsible for the failure, and his claim failed. However, under the ConsumerProtectionAct1987, the manufacturer's liability is much stricter. A `producer' of a product is liable for any loss or injury sustained by a consumer resulting from a defect in the product. According to the Act, a product is defective if its safety is not as people are entitled to expect. It is no defence for the producer to claim that he exercised reasonable care in the manufacture of the product. Unlike the situation at common law, it is for the defendant to show that the defect was not present in the product when it left his site.
However, controversially, it remains a defence that the producer could not have detected the defect with the tools and technology available at the time. This seriously detracts from the strict liability, especially where defective drugs are concerned. This defence imports a large element of fault into CPA liability -- although the producer cannot defend himself by saying he took all reasonable precautions, he can at least defend himself by showing that he took all possible precautions. It is illogical, to say the least, that in an enactment that was supposed to create strict liability on the part of manufacturers, there is a provision that enables the defendant to escape liability on the basis that he exercised care, albeit care of a very high standard. The explanation is to be found in political expedience, rather than law.
Under the OccupiersLiabilityAct1957 and OccupiersLiabilityAct1984, liability is fault-based. The fault in both statutes is to fail to take reasonable care to ensure the safety of those to whom a duty of care is owed. The fault element is therefore much the same as in negligence; the Acts only set out the criteria for determining whether there is a duty of care.
A completely innocent act on the part of an author or publisher can amount to a defamation; for other parties (distributors, libraries, etc) s.1 of the provides a defence where the defendant had no reason to think that he was participating in a defamation, and took reasonable steps to avoid doing so. In short, authors and publishers are subject to strict liability; other parties have fault-based liability, where the fault is in not exercising reasonable care.
Nuisance is often referred to as a tort of strict liability, and in one sense it certainly is. Once it has been established that the defendant has committed an actionable nuisance, then it avails him nothing to claim that he took all reasonable precautions to prevent it. If, for example, roots from the trees in my garden encroach into the foundations of your house and damage it, I will not be able to defend myself on the basis that I considered the risk of this happening, and decided that it was small compared to the cost of prevention. I will have to pay up. This is very different from the traditional fault-based formulation in negligence. In BoltonVStone1951, a cricket club was not held liable in negligence for the damage caused by balls occasionally being hit out of the pitch. This happened very rarely, and would have been very expensive to prevent. The cricket club had done, in effect, what was expected of a reasonable organization in the circumstances.
However, the situation is quite a lot more complicated than it first appears, because true strict liability would be extremely burdensome. Consequently, the courts have imported fault elements into nuisance in other guises. The first limitation on liability is that the courts will balance the reasonableness of the defendant's activities against the right of the claimant not to be disturbed. If the defendant carries out a lawful activity, for as short a time as possible, and seeks to keep the nuisance to a minimum, he may escape liability (HarrisonVSouthwarkAndVauxhallWaterCo1951), even though the claimant is inconvenienced. This balancing procedure is not described as assessing fault, it is described as assessing whether the defendant was making `reasonable user' of his land. However, clearly there is an element of fault at play here -- an activity which is blameworthy or reprehensible is far less likely to be categorized as reasonable user. In HollywoodSilverFoxFarmVEmmet1936, the defendant engaged in shooting on his land, which was entirely lawful, but in such a way as deliberately to damage the claimant's business, and was held liable for the damage. Whether the defendant made `reasonable user' was influenced by his motive. In a true tort of strict liability, it to matter not at all what the defendant's motive was. In addition, it is now confirmed (CambridgeWaterVEasternCountiesLeather1994) that there is a test of remoteness in nuisance. So, even if the defendant's activities amount to `unreasonable user', he may still escape liability if he could not reasonably be expected to foresee the type of damage that would result. Arguably, the more blameworthy an activity is, the more likely it is that damage or incovenience is forseeable.
In short, nuisance is not subject to an explicit test for fault as negligence is, but it has features which at least overlap with a test for fault. The main procedural difference between negligence and nuisance is that the claimant does not have the burden of proving that the defendant was at fault -- this is assessed by the court with regard to the reasonable user and remoteness considerations.
For many years, the eponymous `tort of Rylands v Fletcher' was regarded as the archetypal tort of strict liability. The rule in R v F has come to be understood as meaning that if a person brings something onto his land which is more than usually dangerous, he will be strictly liable for any harm it does if it escapes. It does not matter, it is contended, whether the creator of the hazard took all reasonable precautions, or indeed all possible precautions, to prevent the harmful thing escaping. However, like nuisance, there are elements of fault imported into the tort. To succeed in Rylands v Fletcher, the claimant has to show that the defendant's activities amounts to a `non-natural' user of land. Clearly this will be easier if the defendant's activities are inherently unreasonable. In addition, it appears that a remoteness test applies to this tort as it does for nuisance.
Despite the literal meaning of the word `tort', the law of tort is not usually concerned with establishing who is at fault -- blameworthy -- in an particular action. It is concerned with apportioning the losses between the parties to litigation. In some torts the claimant will have to show some particular element of fault, in others he won't. The distinction between torts that require carelessness, torts that require intention, and torts that require no fault at all is largely historical. It can be argued that if the purpose of the law of tort is to apportion losses, there is no place for a test of fault in any tort. For people brought up with the English view of fault, this probably sounds a strange proposition. But if fault is not to be equated with blameworthiness, and some torts require no fault at all, what purpose does a test of fault serve anyway? Would it not be easier for everyone if the losses just lay where they fell, and no-one could sue anyone? It would certainly be cheaper. In practice, such a system can only avoid being harsh and burdensome where there is a system of compulsory insurance. It is not unreasonable, arguably, that employers have to bear strict liability for the torts of their employees since they have to carry insurance. In some common-law jurisdictions, the tests for fault in negligence have been removed in at least some torts. This is particularly true for negligent driving. In the USA, about 30% of states now operate a no-fault system of motor insurance. In a no-fault system, a motorist must always claim against his own insurers if he suffers loss or damage, and is not permitted to sue the other motorist. Since motorists all have to have insurance, there is a strong case for saying that it does not matter whether claims are met by the negligent driver's insurers, or the blameless driver's insurers. There is one obvious, overwhelming advantage to this system -- irresponsible motorists cannot buck the system by failing to purchase insurance. In Britain, a large number of blameless motorists are forced to claim against the own insurers, or make do without a remedy, because they are involved in an accident caused by an uninsured driver. In a no-fault system, this situation never arises. This obvious advantage is offset by an obvious disadvantage: no-one has any incentive to drive carefully or, at least, any financial incentive. Since any claim will be met by each driver's own insurers, any driver can behave as badly as he likes, and still pay the same premium. But, in fact, even in jurisdictions where motor accident claims are still fault based, the amount a motorist pays for insurance depends relatively little on his personal qualities. A young driver will generally pay more than an older one, even if the younger driver personally is a very careful, competent motorist. In some parts of the country, a person who has been found at fault in a large number of accidents can still be paying a smaller premium than a person in a region where insurance is generally more expensive, who has never been the subject of a succesful claim. The fact is that we all pay for the incompetence of every other road user, whether we operate a fault-based or no-fault system of compensation. Nonetheless, the perception that a no-fault system increases the insurance burden on careful, competent drivers is a very pervasive one, and the state of Colorado recently switched back to a fault-based system of motor insurance, after more than twenty years of no-fault policies. Arguably, the extravagent cost of insurance in Colorado was the result of an inadequate no-fault system, rather than an inherent defect in no-fault liability.
But it is not just motoring which has given rise to calls for no-fault liability. There are increasing demands in the UK for a no-fault system of compensation for medical negligence. Again, health authorities already have a heavy burden of insurance to protect themsevles against negligence claims, and arguably it would be cheaper for everyone if they (or rather their insurers) did not bother. Some sources report that as much as 80% of the (public) money spent on funding medical negligence claims goes on legal expenses. If it were not necessary to prove fault, it would probably be easier for a victim of a medical mishap to claim compensation, and no doubt more claims would be paid. But since there would be much reduced legal expenses, there would be more money available to pay the extra claims. And since any deployment of public funds is preferable to using it to line the pockets of lawyers, this has to be a good thing.
But could the whole of the law of tort be based on no-fault liability? A claimant would still have to show that the defendant had some obligation to him, and that his behaviour in respect of that obligation caused the defendant to suffer loss or injury. What the claimant would not have to show is that the defendant's behaviour fell short of some standard or other. A consequence of such a system is that the torts of negligence, nuisance, R v F, and perhaps even trespass, would be difficult to distinguish because they would have the same fault elements (i.e., none). The distinction between these torts would then be entirely on the basis of the obligations that they impose between individuals.
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