Law + Fault

Arguments for fault based liability

It’s inherently unjust to impose liability without establishing fault of the part of D

 

Rejections of Claims for ‘No-Fault’ Liability:

Some strict liability offences do attract custodial sentences (Howells)

It’s fairer and more efficient to introduce wider insurance schemes or a ‘no-fault’ compensation scheme to ensure all tort victims are compensated

Expanding the ‘Res Ipsa Loquiter’ rule or reversing the burden of proof can be alternatives for mens rea opposed to convicting on the basis of an act

There is little evidence to suggest that no-fault liability encourages the adoption of high standards (Callow v Tillstone)

It’s hard to see how imposing liability on employers will alter the employee’s conduct (Rose v Plenty)

 

Injustice:

It’s morally offensive to punish a person who is blameless. It’s distasteful to impose liability upon a person who has taken all reasonable care to prevent harm. It can foster a grievance with the offender and promote and widespread lack of confidence in the fairness of the criminal justice system. Doesn’t reflect the values of a free society that people can be punished, and potentially deprived of liberty, when they are morally guiltless (Strokwein). People can even be convicted where the offence was procured by the police (Winzer). It’s unjust able that blameless people should be punished. A conviction has lasting consequences on the form of society condemnation (Sweet v Parsley). The law is here to serve as a guideline to behaviours letting people amend the conduct to comply with social requirements. A D who has not been malicious, negligent or careless can’t avoid reoffending no matter how much are is applied (Storkwein). There is no distinction between the blameless and the blameworthy

 

Insurance Premiums:

Premiums would have to rise to match more claims due to increase in successful cases due to easier liability. More people would risk driving with no insurance and hospitals would be less willing to perform operations do to unaffordable insurance costs

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Arguments for no fault liability

Public Interest:

The law seeks to protect and promote the wider interests of the public, and sometimes these are given priority over the requirements for fault in individual offenders. Those who run firms must be prepared to accept the risk, as well as the benefits, associated with the firm (Smedley’s v Breed). An employer profits from the activity of his employees, so he should accept any risk (Century Insurance v NI Road Transport)

The public interests are better served by restricting liability to questions of fact which are straight forward to prove opposed to questioning mens rea (Harrow v Shah). The only punishment for strict liability offences is normally a fine the D can afford (Gammon v Hong Kong); mens rea is still needed for truly criminal offences (Sweet v Parsley). It makes it less likely that an innocent victim will be left without a remedy in the courts (Limpus v London Omnibus). It can be almost impossible to prove mens rea for most strict liability offences (Harrow v Shah)

 

Individual Responsibility:

The biblical principle that ‘we reap what we sew’; it’s our responsibility to ensure we comply with regulations and we are at fault for our failure to do, and thus, makes us guilty (Howells)

The law should hold individuals responsible for the harm they actually cause (Savage)

People are accountable for their actions and for the harm they cause, it’s their individual responsibility (Rose v Plenty)

The producer of a product may be sued as they bear responsibility for the quality and safety of their products (Consumer Protection Act 19897)

 

Deterrence:

The fact no-fault liability exists encourages higher standards of care among business men and property owners (Cundy v Le Cocq). It also helps promote greater vigilance in the matters covered in cases and Acts (Gammon v Hong Kong)

 

Saving Time and Expense:

Saves court time as mens rea need not be proved. D is more likely to plead guilty. Proving mens rea in every single case would take too much time (Gammon v Hong Kong)

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