“Fault is the cornerstone of the tort law"

Fault definition: A negligent or intentional failure to act reasonably or according to law or duty; an act or omission giving rise to a criminal indictment or a civil tort lawsuit. Defendant’s tort must be proven to have caused the loss suffered.

Fault is an essential ingredient of tort law. Different torts bear different level of fault or no-fault.

Fault in Negligence

In Negligence to prove defendant’s fault for liability to be established, the defendant must be in breach of a duty of care to the claimant Donoghue v .Stevenson. It means that the defendant must do something that a reasonable person would not do, or omit to do something that a reasonable person would do, as per Alderson B. in Blyth v Birmingham Waterworks 1856 in Bermingham V, Nutshells (8th edn. Sweet & Maxwell, London 2008) p.40

“…the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

The fault, then, is a failure to take reasonable steps to prevent causing harm to the person, that a reasonable man would foresee him to be put at risk. If the defendant’s conduct fell below the standard of care required, he will be in breach of duty. The objective “reasonable man" test is applied to determine the standard of care required. Even the test is objective, but the standard will vary depending on the circumstances.

Fault in Nuisance

Nuisance is the unreasonable interference with another person in the exercise of his or her rights generally associated with the occupation of land or property. There are two types of nuisance: private and public. Distinction between two of them as per O'Higgins Chief Justice in Connolly v The South of Ireland Asphalt Company 1977 is:

“If the rights so interfered with belong to the person as a member of the public, the act or omission is a public nuisance. If these rights relate to the ownership or occupation of land, or some other easement, profit, or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance."

Nuisance is ought to be a tort of strict liability. If defendant has committed an actionable nuisance, then it stops him from claiming that he took all reasonable precautions to prevent it.

Nuisance is not tested that detailed for fault as negligence is, but it has elements which overlap with a test for fault as in negligence. The main procedural difference between negligence and nuisance is that the claimant does not have to prove that the defendant was at fault -- court has to decide on that with regard to the reasonable user and remoteness considerations.

Fault in Defamation

Defamation can be defined as an act of communication that causes someone to be shamed, ridiculed, held in contempt, and lowered in the estimation of the community or to lose employment status or earnings or otherwise suffer a damaged reputation.

The fault in defamation cases is simply the standard of which the person who made the defamatory statement used and is directly related to the type of plaintiff. To define that fault questions like: was it a mistake? Was it done intentionally? Was it done maliciously? - have to be answered. Public figures require malicious statement; private figures require a mere negligence statement that is false.

Fault in Trespass

It seems that most forms of trespass in the past were decided without reference to fault. To be successful in trespass case plaintiff has to show that he suffered from specific, actionable interference with his rights by defendant, and that this interference was direct.

In Basely v Clarkson 1681 the defendant had cut grass on land belonging to the plaintiff. It was shown that the defendant honestly believed the land was his own; very possibly that belief was reasonable in the circumstances. And still, he was held liable to the plaintiff. Trespass has to be voluntary, in the sense that plaintiff has to show that the defendant intentionally did the things that comprised the trespass, but it is not necessary to show that the defendant intended to trespass. In trespass to person in Stanley v Powell 1891, where it was decided that an element of fault was required at least in trespasses to the person. In this case, a bullet from the defendant's gun ricocheted 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, in this case a principle was created that in trespass, the burden of disproving fault lay with the defendant; in negligence it is the plaintiff’s job to prove fault. As negligence continued to expand, cases involving trespass were often decided on the same fault basis as negligence.

Fault in Passing- off

Passing-off can be defined as a making some false representation (with intention or without it) likely to induce a person to believe that the goods or services are those of another. Passing-off is a recognised common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill. In the tort of Passing-off there are three elements, often referred to as the Classic Trinity, which must be fulfilled. These are:

1) Goodwill owned by a trader.

2) Misrepresentation.

3) Damage to goodwill.

The Plaintiff also has the burden of proof to show false representation (intentional or otherwise) to the public to have them believe that goods or services of Defendant are that of the Plaintiff; some connection between Plaintiff’s and Defendant’s goods or services or trade. Plaintiff must show likelihood and actual deception or confusion in the public. Newsweek Inc. v British Broadcasting Corp.

Fault in Wilkinson v Downton

As we know in Wilkinson v Downton Common Law first recognised the tort of intentional infliction of mental shock. In this case plaintiff, Mrs Wilkinson, suffered a violent shock to her nervous system, causing her to vomit and for her hair to turn white and other more serious and permanent physical consequences which at one time threatened her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical expenses. Like most of the above analysed torts, this case is fault-based; the burden of proof on defendant’s fault lay on the plaintiff’s. Mrs Wilkinson had to show that:

Defendant acted intentionally or recklessly; and

Defendant’s conduct was extreme and outrageous; and

Defendant’s act is the cause of the distress; and

She suffers severe emotional distress as a result of defendant’s conduct.

Moving to strict liability

Rylands v. Fletcher was the first English legal case in which the Court of the Exchequer Chamber first applied the doctrine of strict liability for inherently dangerous activities. Rylands v. Fletcher case made its long way starting in the local Court of Liverpool in 1861. It was decided in favor of the Plaintiff Fletcher on the basis of trespass and nuisance. Actions in the torts of nuisance and trespass were available only if you could prove a legal interest in land.

Fletcher appealed to the Court of Appeal, being the Exchequer Chamber of six judges, in 1866 (L.R. 1 Ex. 265). The prior decision was overturned in favor of the appellant Fletcher. Justice Colin Blackburn spoke on behalf of all the judges and said:

"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff’s default; or perhaps, that the escape was the consequence of via major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient."

The decision was made based on the liability for damages to land available through the tort of cattle trespass and the tort of nuisance, as well as the in Scienter action, injury by a domesticated animal known to have a disposition to injure. Rylands appealed it again to the House of Lords which dismissed the appeal and agreed with the determination for Fletcher, in 1868 (L.R. 3 H.L. 330). Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate.

The torts being argued in the case were torts relating to the enjoyment of land, available to land owners (and lawful land users), and the most available outcomes from judgment were injunctions to stop the activity and payment of damages for injury to land. Damages for personal injury or economic injury were ought to be of other legal developments.

The Court had to decide if strict liability could be applied to inherently dangerous activities in the same way it was applied in nuisance and cattle trespass. Trespass was considered not to be an available cause of action as it requires a direct invasion of an interest (land, goods or person) by a person, and by 1860, for trespass to succeed, there was the need to prove culpability in the form of negligence or willful intent. Fletcher argued that the doctrine of strict liability should be applied, that the peaceful enjoyment (i.e. interest) in his land was invaded and Rylands should be liable for the damages caused by his inherently dangerous activity (that is, collecting a dangerous amount of water on his land which then "escaped" into the mine). Rylands argued that he was acting reasonably and lawfully on his land and thus should not be held responsible for a simple accident which resulted without any negligence or willfulness on his part.

The Court found in favor of Fletcher and ordered Rylands to pay for all the property damage to the mine.

The rule in Rylands v Fletcher is contentious because it creates a form of strict liability, that is, fault-free liability. This is different to a liability in negligence where fault is the essence of that tort.

Fault in strict liability

Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement for plaintiff to prove that the defendant was negligent.

Liability for Defective Products Act, 1991 this act imposes strict liability on the producer for damage caused by a defect in the product. The consumer does not need to show negligence or fault on the producer’s part.

S.2 of the Act defines liability:

2.—(1) the producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product.

A producer in this context includes manufacturers, importers and suppliers (s.2 (2)). ‘Damage’ is death or personal injury of loss of or damage to any property other than the defective product itself (s.1 (1) (a) (b)).

The user must merely show the damage, the defect and the causal relationship between the defect and the damage.

Talking about policy reasons behind the introduction of statutory measures creating strict liability, so called "children of the industrial revolution", were said to be necessary for several reasons:

1) The sheer bulk of cases could overwhelm court systems;

2) The difficulty of proving mens rea would create lengthy and cumbersome trials;

3) The penalties imposed would not stigmatize the defendants, but merely regulate their behavior by making them more cautious.

Conclusion

Despite the literal meaning of the word `tort', the law of tort is not usually concerned with establishing who is at fault - blameworthy - in a particular action. It is concerned with apportioning the losses between the parties in question. In some torts the claimant will have to show some particular element of fault, in others he won't. The distinction between torts is that some torts require a proof of carelessness, some - proof of intention and torts that require no fault to be proved at all is largely historical. Strict liability imposed by statutory provisions makes litigation more simplistic from plaintiff prospective as he does not have to prove any fault on the defendant. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting.

It is hard to say which system, fault or no-fault, is better. I think that if to abolish fault test in nominated torts of negligent, nuisance, trespass, defamation, etc. it would make it difficult to distinct the named torts and would bring some mess into common law. As both systems serve their purpose in my opinion it should be left as it is.