4 - Departures from the fault principle

Summary

Fault liability and strict liability

The fault principle, as embodied in the concept of negligence, is not the only basis of legal liability for personal injuries and death, although it is, in practice at least, by far the most important. In this chapter we will consider modifications to and departures from the fault principle. Such modifications and departures are often said to impose ‘strict liability’ as opposed to fault liability. Whereas fault liability is based on a judgment that a person should have behaved differently (for instance, by taking certain precautions), strict liability does not involve any judgment that the person should have behaved differently. Putting the same point another way, fault liability is liability for the way a person behaved whereas strict liability is liability for consequences of a person's conduct. Strict liability has often been thought to be morally unjustifiable, even if it has its uses as a legal device – how can it be fair to hold someone liable for the consequences of behaving in a perfectly acceptable way? How can we justify responsibility in the absence of culpability? The best answer to this question appears to be that even in morality (as opposed to law) we sometimes accept responsibility and hold others responsible for things that were not our, or their, fault. For example, if a young child accidentally breaks a neighbour's window while playing ball, its parents might well feel that they ought (morally) to accept responsibility for the broken window and pay to have it replaced, even if they took all reasonable care in supervising their child.