The Bounds between Negligence and Strict Liability
in: Mauro Bussani and Anthony J. Sebok (Eds.), Comparative Tort Law: Global Perspectives, Cheltenham 2015, Chapter 10.
25 Pages Posted: 26 May 2016 Last revised: 7 Mar 2019
Date Written: May 24, 2016
Two opposite and competing arguments are normally invoked to ground tort liability. The first seeks to justify liability as a consequence of unreasonable conduct: essentially, liability arises wherever there has been an (unintentional) lack of due care. This type of liability is based on what we will call here ‘fault’ or, in keeping with common law terminology, ‘negligence’. The second justification put forth in arguing for liability relies on the risk attaching to a certain activity or (defective) thing. This second type of liability is incurred irrespective of the defendant’s (careful) behaviour. In the present study, we will refer to it as ‘strict’ liability.
A closer examination of the relevant legislation and case-law shows that both lawmakers and the courts tend to mix the two justifications, seeking a middle ground between them. Thus, for example, there are laws that impose a heightened duty of care on persons that carry out hazardous operations or keep dangerous things. In other cases, there may be a presumption of fault that attaches to the realization of certain harms. As a result, the situation is one in which there are not simply two alternative paths, but rather a single wide road with several lanes, offering different mixes of the two types of liability. This does not, of course, mean that the dichotomy between negligence and strict liability is no longer relevant. In our opinion, the distinction between them is real, and should be maintained as a means of accentuating the moral and social implications of tort law.
However that may be, strict liability is often defined in restrictive terms and limited to risks specifically designated in the statutory regimes. Because of this, risks that may appear to be similar in many ways do not always trigger the same kind of liability. As the application of statutory provisions by analogy is not usually permitted, only risks specifically named in a statute will trigger such liability. A number of authors have criticized this approach, calling for the introduction of a ‘general clause’ of strict liability. In an effort to mitigate the apparent randomness of certain legislative choices, various proposals have recently been put forward that would enable the courts to consider certain general categories of risks as justifying strict liability.
A number of arguments can be made for the proposition that the ideal solution would be to base liability on defendant conduct in all cases where due care ought, in principle, to be sufficient to avoid harmful outcomes. Conversely, liability based solely on risk should arise only where careful conduct is not capable of ensuring that no harm will be caused. In such cases, the result alone – that is, the realization of a particular hazard – should be taken to justify liability. In the following, we will examine those arguments, considering also the ways different legal systems choose between the different approaches to liability – and the ways in which cultural bias no doubt influences those choices.
We will begin with a brief review of the arguments generally adduced in favour of negligence-based and strict liability. We will then focus on some recent developments and proposals that seek to clarify the dividing line between the two. We will finally present an overall assessment and analysis of the various ways in which negligence and strict liability interface with one another.
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