Tortious Obligations – Strict Liability
Tortious Duties – Strict Liability
This survey requires an rating of what is rigorous liability. The construct of rigorous liability will be defined and analysed in the context of Byzantine duties. Reference will be made to statute and applicable instance jurisprudence where rigorous liability was the cardinal issue. The inquiry of whether or non there is a strong instance for regulating many more activities through rigorous liability and if so, why this peculiar stance should be taken, will be considered.
Strict liability is defined [ 1 ] as being liability in civil wrong for a incorrect that is imposed without the complainant holding to turn out the suspect was at mistake. Strict liability is exceeding in the jurisprudence of civil wrong but is imposed for civil wrongs affecting unsafe animate beings and unsafe things [ 2 ] , transition, calumny, merchandises liability and some instances of breach of statutory responsibility. It is no defense mechanism in these civil wrongs that the suspect took sensible attention to forestall harm, but assorted other defense mechanisms are admitted.
Jones [ 3 ] holds the position that rigorous liability is a general term used to depict signifiers of liability which have no dependance on cogent evidence of mistake. He states that where a suspect is held responsible for unforeseeable injury or is apt despite holding taken all sensible attention to avoid foreseeable injury so liability can be said to be rigorous. Winfield and Jolowicz [ 4 ] province that the differentiation between mistake and rigorous liability is flexible. They province that rigorous responsibilities range from about absolute liability leting no defense mechanism to responsibilities which amount to little more than a high criterion of attention in carelessness. Jones [ 5 ] positions that the tribunals do non favor rigorous liability. Jones keeping that the linguistic communication of mistake creates an about natural judicial aversion to keeping a individual responsible for doing injury that could non moderately have been avoided.
It is self apparent that the construct of rigorous liability should use within countries of societal interaction and in state of affairss where there are clearly hazards when persons should take personal duty for whatever befalls. Winfield and Jolowicz [ 6 ] note, “strict liability focuses upon the nature of the defendant’s activity instead than, as in carelessness, the manner in which it is carried on” .
Here there may be some component of carelessness, but rigorous liability focuses upon the degree of incrimination to be apportioned to the person. There is clear credence of the duty placed upon the suspect as Winfield and Jolowicz [ 7 ] citation, “an activity which creates an unusual or exceeding hazard may be justified by its societal public-service corporation, and hence may be sensible on a carelessness theory, but the suspect has imposed this hazard on others for his ain intent and so his behavior is non needfully blameless” . This shows that rigorous liability can refer to the suspect, yet causative factors have to be taken into history.
An activity may be said to be a risky activity where there is an built-in hazard of danger that, even where the degree of attention is so great, the hazard factor can non be eliminated. If, as a direct consequence of the activity in inquiry, person is injured the suspect will be purely apt despite the fact that it has exercised a high grade of attention has been exercised.
The following standards have been outlined to measure whether or non rigorous liability will originate as a consequence of the dangerousness of the activity. Courts will see the ( a ) being of a high grade of hazard of some injury to the individual, land or movables of others ; ( B ) likeliness that the injury that consequences from it will be great ; ( degree Celsius ) inability to extinguish the hazard by the exercising of sensible attention ; ( vitamin D ) extent to which the activity is non a affair of common use ; ( vitamin E ) wrongness of the activity to the topographic point where it is carried on ; and ( degree Fahrenheit ) extent to which its value to the community is outweighed by its unsafe properties.
It is within the latter that scrutiny of causing has to be made and allotment of incrimination, or loss made. Winfield & A ; Jolowicz [ 8 ] indicate that harm caused by the dangers inherent in the “activity is paid for by the individual or enterprise” [ 9 ] in inquiry. This assumes that support or resort to insurance is available to cover costs. Winfield & A ; Jolowicz [ 10 ] pull the analogue between rigorous and mistake liability, demoing that:
“question of which losingss are distributed under mistake liability non-negligent amendss prevarications
where it falls whereas under rigorous liability inadvertent injury is distributed.” [ 11 ]
Strict liability besides crosses the bounds of vicarious liability where it can be established that employees suffered straight as a consequence of their employment. Here the employer is responsible in the absence of any mistake from the employee’s place. To contend this issue cogent evidence would be required from the employer. Jones [ 12 ] notes that this applies to independent contractors and rigorous liability besides pertains to “animals peculiarly those belonging to a unsafe species” [ 13 ] .
The Pearson Commission [ 14 ] made recommendations that rigorous liability be adopted where decease or personal hurts arise, sketching specific state of affairss. The Commission made the recommendation presenting a system of rigorous liability under which requires no cogent evidence of carelessness but that the action caused hurt or agony, therefore the complainant has to turn out that hurt or agony was the defendant’s mistake.
Rigorous liability can originate in the signifier of an action for breach of statutory responsibility. Applications vary harmonizing to the statute law used and tribunal apprehension.
Winfield & A ; Jolowicz [ 15 ] note that, “legislation explicity imposes rigorous liability in tort” mentioning nuisance being stricter than carelessness in some instances.
In decision, the theory regulating many more activities through rigorous liability has advantages and disadvantages. One major advantage is of a risky activity taking topographic point it will guarantee that the degrees of safety involved will be so high that, if taken by a sensible and right-thinking individual, the hazard of hurt to person will be little. A disadvantage of this theory is that it lends itself to a possible gap of the floodgates with Byzantine rigorous liability claims which may function to badly clog and dispute the tribunals.
- Oxford Dictionary of Law – 4ThursdayEdition by Elizabeth Martin. Published by Oxford University Press in 1997.
2. Textbook on Torts – 5ThursdayEdition by Michael A. Jones. Published by Blackstone Press
Limited in 1997.
- Winfield & A ; Jolowicz on Tort – 15ThursdayEdition by W.V.H. Rogers. Published by Sweet & A ;
Maxwell in 1998.
- Tort Law: Text and Materials – 2neodymiumEdition by Mark Lunney and Ken Oliphant.
Published by Oxford University Press in 2003.
- Markensis and Deakins Tort Law – 5ThursdayEdition by Simon Deakin, Angus Johnston and
Basil Markensis. Published by Clarendon Press in 2003.