Fault Essay Flashcards
Introduction
Definition
Fault generally Implies a sense of being blameworthiness or responsibility for Ines wrong doing
In this sense also refers to mental state of D
Basic principle- D should be able to contemplate possible harm from his actions and should aim to avoid his actions
Fault is an essential element of quite a diverse element of law
Criminal law
General presumption that liability is based upon fault
Consistent with our sense of justice:shouldn’t have Crim liability unless culpable or at fault
Crim law has a AR and MR-AR with no MR makes D not liable (unless strict liability)
MR= main fault element
AR
Act must be done voluntarily, where D was in control of his actions
Involuntary act will Not suffice as D was not in control (Hill v Baxter)
Voluntary act=highest level of fault as D was in control =highest punishment
Can be done through omission (pittwood) but has less severe punishment than Positive act
Causation
D must be cause if end consequence to be at fault (pagett)
The chain of causation must remain intact or D is not liable (Jordan)
Can be said that chain of causation maintains the link between fault and liability
CRITICISM: egg shell skull- D must know of underlying condition- D can be liable without being at fault
MR
Direct intent- highest level of fault
Recklessness- fault in the sense that D recognised a risk and took it
Negligence- test based on what reasonable man would see- D must owe a DOC and breach it by falling below expected standard
Negligence can be the basis of fault for GNM but is a higher level of fault than ordinary negligence (Bateman)
Defences
The existence of defences recognises that the D may not be at fault even if he committed both the AR and MR
PARTIAL
Conviction of murder requires proof of intent to kill or cause GBH
Degrees of culpability-reflected in the availability of special defences of LSC and DR
Reduce from murder to VM
Strict liability
Require no MR
Imposed without need to prove fault
But there is fault as AR has been committed
Tends to be regulatory and deal with social concerns -smedleys v breed
SL is justified as businesses will be prosecuted and will raise standards
No defence
Relatively minor punishment
May be unfair as firms may have taken all precautions to avoid committing the offence
Absolute liability
Generally AR must be voluntary but in AL it may be involuntary
Winzar-D drunk in hotel-police bring outside- charged for being drunk on highway
Some say
Winzar was reckless in becoming drunk exposing himself to committing Criminal offences and was at fault for becoming drunk
Public interest
Not in Publics interest to have liability based on fault
Law seeks to protect and promote pública wider interests
Given priority over fault in individuals
Civil cases protecting public (smedleys v breed)
Less serious crimes PI weighs heavily on scales of justice
SL less likely for innocent victim to be left without remedy
Not need to prove MR makes D more likely to admit
Saves time and cost of court
Individual responsibility
Biblical principle “ we reap what we sow”
Non fault liability promotes this
Howell- failed to get license- fact that he believed he didn’t need one was irrelevant
Deterrence
Punishes individuals and firms for any harm caused even if unaware of it
Promotes greater vigilance
Harrow LBC v Shah - shopkeepers selling restricted goods
AG Hong Kong v Gammon- construction
Rejection of claims for no fault liability
Strict liability isn’t restricted to crimes which attract fines
Howell- charged under firearms act 1968-max 5 years
Driving-points-disqualification
Cannot justify Non fault on merely because it provides form of compensation
If compensation is main problem-faster and tie efficient to-expand insurance scheme/start gov non fault compensation scheme
D’s need not ability to claim
If proving MR is hard- expand Res ipsa or swap BOP
Better than SL why should D be charged for conduct alone
No proof that Non fault increases Soc as how can businesses protect against unexpected risks
Justice
People being held accountable with the unforeseen conflicts with our view of justice
Criminal- morally offensive to punish a blameless defendant
Civil- seems wrong to put liability on someone who all care to prevent an undesired outcome
The conviction of the blameless fosters a sense of grievance
Promoting wide spread lack of confidence in the system
Law enforces societies rules + values
Reflects badly that people will be punished when morally guiltless
Unjust criminal record-bad rep,affects employment and exposes them to prejudice
Law=behaviour guide where people adapt to comply with society
No fault liability does not allow this as D who has not been malicious or negligent cannot avoid reoffending no matter how much care he takes
