Law-Fault

Question 1

What is fault?

Answer 1

Fault as a concept in whichever area of law is really only a simpler way of describing legal blame and responsibility. In this sense it also refers to the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and should therefore aim to avoid such actions

Question 2

Why is fault an essential element of quite diverse elements of law?

Answer 2

For instance in family law, certain facts needed to prove an irretrievable breakdown of a marriage in a divorce petition can be described as fault. Examples would be adultery or behaviour

Question 3

How can fault be seen in criminal law?

Answer 3

The requirement of mens rea is used to decide if a defendant has a criminal intent when he commits the act and is therefore at fault for the crime. This is so in all crimes except strict liability

Question 4

How can fault be seen in contract law?

Answer 4

A breach can be identified irrespective of the intention of the defendant, but it is still the person who breaches a contract who is liable. Fault is in any case identifiable in the award of damages, where foreseeable loss is an issue under remoteness of damage and also in the behaviour of the defendant in the granting of equitable remedies

Question 5

How can fault be seen in tort?

Answer 5

Foreseeable harm is appropriate to all aspects of negligence. This is another way of describing fault. Similarly in the trespass torts intentional and direct harm is required

Question 6

How can fault be contrasted with strict liability?

Answer 6

Fault liability requires some intention, or at least a conscious failure to take care by the defendant. In contrast, strict liability, while recognising certain limited defences, takes no account of the defendant’s state of mind

Question 7

What is strict liability in criminal law?

Answer 7

In criminal law, strict liability is easy to identify as the lack of requirement of mens rea, although it is not necessarily easy to identify and certain rules have developed

Question 8

Why does strict liability appear to contradict the basis of criminal law?

Answer 8

Normally criminal law is thought to be based on the culpability of the accused. In strict liability offences, there may be no blameworthiness on the part of the defendant

Question 9

Where is strict liability usually found in criminal law?

Answer 9

In regulatory offences. Such offences are often concerned with protecting the public in general, such as regulations on the sale of food, the use of road vehicles and the causing of pollution. For such offences, it is not necessary for the prosecution to prove mens rea, as it is considered that protection of society in general is more important than imposing liability on an individual who may not be at fault in any way

Question 10

What is an example of strict liability in criminal law?

Answer 10

Pharmaceutical Society of Great Britain v Storkwain Ltd

Question 11

What happened in Pharmaceutical Society of Great Britain v Storkwain Ltd?

Answer 11

The appellant, a pharmacist was convicted of an offence under s.58(2) of the Medicines Act 1968 of supplying prescription drugs without a prescription given by an appropriate medical practitioner. The appellant had allowed prescription drugs to be supplied on production of fraudulent prescriptions whereby a doctor’s signature had been copied. The appellant was not party to the fraud and had no knowledge of the forged signatures and believed the prescriptions were genuine

Question 12

What was held in Pharmaceutical Society of Great Britain v Storkwain Ltd?

Answer 12

The offence was one of strict liability and the conviction was upheld. The House of Lords looked at other sections of the Medicines Act 1968 and found that some sections referred to a requirement of mens rea whereas other sections did not. They concluded that the omission to refer to mens rea in s.58 must therefore have been deliberate and so the presumption of mens rea was rebutted

Question 13

What can be argued about the case of Pharmaceutical Society of Great Britain v Storkwain Ltd?

Answer 13

It is possible to argue that the importance of preventing unauthorised drugs being given out justifies the offence being one of strict liability. However, in other situations, especially where the maximum penalty for the offence is severe, it is less easy to justify strict liability

Question 14

What is an example of where strict liability is imposed on offences with severe consequences?

Answer 14

The sexual Offences Act 2003 has created several offences of strict liability in respect of belief in the age of a willing participant in sexual activity. This led to a conviction in the case of G under s5 of the Sexual Offences Act 2003 carrying a maximum penalty of life imprisonment, plus a place on the sex offenders’ register-even though defendant was 15 who thought the victim (who gave consent) was also 15 but was actually 12

Question 15

Where is strict liability found in contract law?

Answer 15

In contract law, strict liability can be identified in statutory terms found in the Sale of Goods Act 1979 (as amended). Here liability is strict in respect of implied terms requiring that goods should correspond to any description applied to them, s 13; that the goods should be of satisfactory quality, s14 (2); and be fit for the purposes for which they are sold, s14(3); and, where goods are sold by sample, the bulk should correspond to the sample, s15. Similar strict liability can be found in the implied terms in the Supply of Goods and Services Act 1982

Question 16

Where is strict liability found in law of tort, but only where it is foreseeable?

Answer 16

Tort of Rylands v Fletcher was traditionally described as strict liability for the escape of dangerous things from defendant’s land. However, the additional requirement of non-natural land used made by Lord Cairns in House of Lords, and requirement of foreseeability of harm added in Cambridge Water Co v Eastern Counties Leather plc meant this description can no longer be sustained. Reaffirmed in consideration of entire tort in 2003 case of Transco plc v Stockport Metropolitan Borough Council

Question 17

What is a significant area in tort for strict liability?

Answer 17

The Consumer Protection Act 1987, which in s2(1) identifies that “…where any damage is caused wholly of partly by a defect in a product, every person to whom subsection 2 applies shall be liable for the damage…” Potential defendants include manufacturers, anyone who ‘abstracts’ products, anyone carrying out industrial or other process that adds to essential characteristics of product, importers, suppliers and ‘own-branders’. In this way, a consumer may sue almost anyone in chain of production/distribution for defects in product that renders it unsafe. Act covers death, personal injury, and loss or damage to property caused by unsafe products-there are however some limited defences

Question 18

How important is fault in criminal law?

Answer 18

It is an important element. In order to prove a person guilty of an offence, the prosecution has to prove required actus reus/mens rea for the offence. Actus reus is the physical element but it does not impose liability without mens rea (except strict liability). Mens rea can be seen as the main ‘fault’ element of the offence

Question 19

How does criminal law impose liability for different levels of mens rea?

Answer 19

Law may make defendant guilty for being negligent, or reckless, or for having specific intention to do/cause something. These are very different levels of fault. Where defendant is proved to be at fault (and found guilty) they can be punished. Also under principles of strict liability, a defendant can be found guilty even when not at fault

Question 20

What are the different levels of fault?

Answer 20

Specific intention, recklessness, and negligence

Question 21

What is specific intention?

Answer 21

Highest level of fault in criminal law is where defendant has specific intention. Exact intention varies according to type of offence. Eg intention required for murder is intention to kill or intention to cause GBH. For theft, intention required is to intent to deprive another of property permanently and to be dishonest

Question 22

What is recklessness?

Answer 22

It involves fault in sense that defendant has realised there is risk of consequence occurring but decided to take that risk. This level is sufficient to convict a person for offence under s47 OAPA 1861. For s47, mens rea required is either intention or recklessness that victim may be put in fear of having unlawful force applied to them, or the unlawful force may be applied to the victim. Defendant also has to cause ABH to victim (actus reus). Recklessness is also sufficient for an offence of criminal damage

Question 23

What is negligence?

Answer 23

Test for negligence is based on what the reasonable man would foresee. Defendant must owe duty of care which is breached by falling below standard of care appropriate to specific duty. This standard is judged by ‘reasonable man’ test, with defendant taking care to avoid harm which is foreseeable by reasonable man. In criminal law, gross negligence can be basis for fault for involuntary manslaughter. Gross negligence is higher levels of fault than just negligence. Law on gross negligence manslaughter imposes fault where negligence goes as stated in Bateman

Question 24

What are the criticisms of level of fault?

Answer 24

There are arguments that required fault level in murder should not include intention to cause GBH (as decided in Vickers). Surely intention to kill is a much higher level of fault than an intention to cause GBH. Yet by imposing liability for murder based on an intention to cause GBH, the law is treating defendant with different levels of blameworthiness in the same manner. Not only are such defendants found guilty of murder, but there is no difference in their sentence as there is a mandatory sentence of life imprisonment for murder

Question 25

How can fault be mitigated?

Answer 25

There are various defences available in criminal law which can reduce or eliminate fault on the part of the defendant. Eg the defence of mistake if successful will eliminate fault entirely so the defendant is found not guilty (shown in the case of Williams). Another defence that completely eliminates fault so defendant is not guilty is non-insane automatism because the actus reus done by the defendant is not voluntary and they do not have the required mens rea. The cause of automatism must be external, such as a blow to the head

Question 26

What happened in the case of Williams?

Answer 26

Defendant mistakenly believed a youth was being attacked by another man. Williams struggled with the other man, believing that by doing so he was preventing further assaults on the youth. In fact, the man was a police officer trying to arrest the youth. Williams was not guilty of any offence as he though he was acting in prevention of crime. He was judged according to his honest mistake as to the facts of the situation

Question 27

How can liability be reduced?

Answer 27

Some defences only reduce liability. The main examples are the special defences to murder: diminished responsibility (Homicide Act 1957) and loss of control (Coroners and Justice Act 2009). If these are successful the defendant is not guilty of murder, but is guilty of the lesser offence of manslaughter. In these situations the law recognises need to impose a lower level of liability. Such defendants are seen as less blameworthy. The importance of this is it gives the judge discretion in sentencing, rather than having to impose a maximum life sentence

Question 28

Apart from defences, what is another way that different levels of fault are recognised in criminal law?

Answer 28

Sentencing. In most cases, judges have a complete discretion as to what sentence should be imposed on a defendant who has pleaded guilty or has been found guilty. The only cases where they do not have discretion is murder, and other offences where there is a minimum sentence for repeat offenders of serious offences, drug-dealing or burglary

Question 29

How does the law recognise different levels of fault in murder?

Answer 29

Through the tariffs which must be imposed under the Criminal Justice Act 2003. The judge has to state the minimum term a murderer must serve before being able to apply for parole. The Act gives guidelines for these: a whole life term where the murder is exceptionally serious, eg abduction/sexual motivation in murder of a child. Minimum of 30 years for serious murders eg by using a firearm. Minimum term of 15 years for other cases of murder. Twelve years for offenders under the age of 18

Question 30

How are different levels of fault recognised in the sentencing of other offences without minimum sentences?

Answer 30

Various factors will be taken into account for sentencing. These include matters such as whether the offence was premeditated, whether the victim was particularly vulnerable eg a child or very elderly person, and whether the defendant was the ringleader. These are all considered as making the offence more blameworthy and the defendant is likely to receive a heavier punishment. From this it can be seen that fault plays a central role in sentencing an offender

Question 31

Should there be liability without fault?

Answer 31

In criminal law, it can be argued that since a person convicted of an offence is liable to be punished, then there should be a fault element in order for that person to be convicted. However, there are arguments that strict liability should be used even in the criminal law. There are other reasons for imposing liability, not just fault

Question 32

What happened in Wings Ltd v Ellis?

Answer 32

The House of Lords had to consider the Trade Descriptions Act 1968 which creates offences aimed at consumer protection. They pointed out that this Act was ‘not a truly criminal statute’. This was because ‘its purpose was not the enforcement of the criminal law but the maintenance of trading standards’. In such types of ‘offences’ the law is not concerned with fault, so finding a person guilty where there is no fault can be justified

Question 33

Apart from the reason from Wings Ltd v Ellis, what is another justification for strict liability?

Answer 33

Allowances for levels of blameworthiness can be made in sentencing. This argument was put forward by Baroness Woottton. She thinks that where the object of the criminal law is to prevent the occurrence of socially damaging actions, it would be absurd to ignore those which were due to carelessness, negligence or even an accident. If the aim is to prevent socially damaging actions, then the question of motivation is irrelevant at the point of deciding guilt. She believes the point of sentencing is the time at which the presence or absence of guilty intention is all-important. Courts can deal with the offence according to level of fault by imposing a sentence which is likely to prevent a recurrence of the forbidden act

Question 34

What is the importance of fault in the law of tort?

Answer 34

Fault is a concept that is particularly relevant to the law of torts, ad the tort of negligence is base don fault liability. In negligence, a defendant will not be liable unless the claimant can also show fault. This is done by demonstrating the defendant owed the claimant a duty which was breached by falling below the standard of care appropriate to the specific duty. It is tested according to the ‘reasonable man’ test, so the defendant must act so as to avoid foreseeable harm (Donoghue v Stevenson). Even in causation, damages will only be awarded where the damage was not too remote a consequence of the breach, which is measured against damage, which is reasonably foreseeable consequence of the breach according to the test in The Wagon Mound No1

Question 35

Are professional measured according to the reasonable man?

Answer 35

Professionals are instead measured according to their own standards (Bolam v Friern Hospital Management Committee)

Question 36

How does fault apply to occupiers’ liability?

Answer 36

It would certainly apply to occupiers’ liability under the 1957 Act which is basically a specific statutory form of negligence. Here the defendant is liable because he creates foreseeable harm causing the visitor damage or injury, as can be seen in the House of Lords judgement in Jolley v London Borough of Sutton

Question 37

How can fault be seen in the trespass torts?

Answer 37

It can be seen in the trespass torts, to land, to persons, and to goods in the requirement of direct and intentional interference. In assault for instance, the defendant must have intended to cause apprehension of fear. This can be seen in the case of Smith v Chief Superintendent of Woking Police where the defendant peering through a window cause the claimant real alarm even though it was improbable that the claimant could have suffered harm

Question 38

Does motive apply to tort?

Answer 38

While motive is said to have no relevance to the commission of a tort, fault can certainly be recognised where malice is an issue. In privat nuisance, malice may be the basis of an action as in Hollywood Silver Fox Farm v Emmett. It may also defeat an action for nuisance, where the claimant acts with malice in response to the nuisance, as in Christie v Davey

Question 39

How can fault be seen in the tort of defamation?

Answer 39

Because of the requirement that the falsehood is published to a third party. In Theaker v Richardson the defendant was liable when he wrote to another councillor, calling her ‘a lying, low down brothel keeping whore and thief’ because he would have been aware that her husband, being her agent, might open it believing it to be an election address

Question 40

How does fault apply to vicarious liability?

Answer 40

Even in vicarious liability, which is not a tort in itself, an employer is liable and therefore responsible or at fault for the torts of his employees, because he is bound to hire appropriate staff and ensure that they comply with the law during the course of their employment

Question 41

How can fault liability be seen as unfair in the case of medical negligence?

Answer 41

It seems unfair to claimants because of the problems associated both with amassing evidence and of actually proving fault. Also it seems obviously wrong to impose liability on a body such as a health authority, unless that body can be shown to have done wrong. The fact that the defendant satisfies legal tests on fault is nevertheless barely adequate comfort to a person who places his safety in the hands of professional people, and finds himself later to have suffered irreversible and disabling damage

Question 42

How is fault liability also seen to be unfair to victims who have suffered harm?

Answer 42

Because the degree to which a person can easily gather evidence and therefore present a winnable case may depend on the degree of publicity which the case has produced. Inevitably, people involved in an event gaining media attention or involving a number of claimants may be in a better position to find suitable evidence

Question 43

How can fault liability be seen to be unfair to society in general?

Answer 43

In not providing an adequate means of remedying wrongs, since the fault based system can can create classes of victims who can be compensated and classes who cannot. This can be particularly true of the victims of pure accidents and those suffering from genetic disorders

Question 44

How can fault liability be seen to be unfair to defendants?

Answer 44

Since there are no identified degrees of culpability. This in turn means that a defendant will not be penalised according to the degree of negligence shown

Question 45

What do the rules of standard of care and imposing duties mean for claimants?

Answer 45

The rules concerning the standard of care as well as the imposing of duties, mean that very often a claimant’s ability to recover for the wrong suffered is determined according to the whims of policy, and therefore can be subject to arbitrary and often inconsistent reasoning

Question 46

What is the major justification of the fault-based system?

Answer 46

Its major justification is that it does punish the wrongdoer and so is said to have some deterrent value. However, no-fault systems have been advocated on a number of occasions. The Pearson Committee in 1978 suggested such a system in the case of personal injury claims, though this has never been accepted or implemented. Two no-fault based medical negligence bills have also been introduced unsuccessfully. The principle is not without precedent since such as system has operated in New Zealand