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Fault definition: A negligent or intentional failure

Fault is an essential ingredient of tort law. Different torts bear different level of fault or no-fault.

Fault in Negligence
Negligence is the foundation of Tort law in modern tort, the defendant must be in breach of a duty of
care to the claimant, which covers a wide range of activities, which attracts some risk of harm
towards others. In 1932, a case that changed the Law of Tort was Donoghue v .Stevenson,
establishing the neighbour principle. Lord Atkins defined the duty of care in negligence by way of a
formulation that has been adopted and applied in numerous cases, Lord Atkin stated:

“The rule that you must love your neighbour becomes in law you must not injure your neighbour; and
the lawyer's question, who is my neighbour?, receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be liable to injure your
neighbour. Who, then, in the law, is my neighbour? The answer seems to be-persons who are so
closely and directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called in
question."

Therefore, a person owes a duty to anyone they can reasonably foresee that they could injure either
by their acts or omission. In an earlier decision in Blyth v Birmingham Waterworks 1856, Alderson B.
referred to the ‘reasonable man’ stating:

“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do. The defendants might have been liable for
negligence, if, unintentionally, they omitted to do that which a reasonable person would have done,
or did that which a person taking reasonable precautions would not have done."
It means that the defendant must do something that a reasonable person would not do, or omit to
do something that a reasonable person would do.

Fault is a failure to take reasonable steps to prevent causing harm to the person, that a reasonable
man would foresee him to be put at risk. If the defendant’s conduct fell below the standard of care
required, he will be in breach of duty. The objective “reasonable man" test is applied to determine the
standard of care required. Even the test is objective, but the standard will vary depending on the
circumstances.

Causation
Using the “But for" test provides link between conduct and damage, “…factual causation requires
proof that but for the defendant’s negligence, the plaintiff would not have suffered his injuries or
loss."

Proof of negligence, the defendant must foresee some damage to be liable. Therefore Res Ipsa
Loquitur can be used to shift the onus of proof on to the defendant as in Scott v London and St
Katharine Docks Company the plaintiff was passing under a loading bay of the defendant's
warehouse when sacks of sugar fell from the Bay landed on him the Court held negligence on the
part of the defendant would be presumed. It stipulated two conditions for the principle to operate:
(a) the thing must be shown to be under the control of the defendant, and (b) that the accident is
such as in the ordinary course of events would not happen if those who had the control took proper
care.

Fault in Nuisance and in Rylands v Fletcher

“ …an act or omission which amounts to an unreasonable interference with, disturbance of, or
annoyance to another person in the exercise of his rights", generally associated with the occupation
of land or property. There are two types of nuisance private and public. Distinction between two of
them as per O'Higgins Chief Justice in Connolly v The South of Ireland Asphalt Company is:

“If the rights so interfered with belong to the person as a member of the public, the act or omission
is a public nuisance. If these rights relate to the ownership or occupation of land, or some other
easement, profit, or other right enjoyed in connection with land, then the acts or omissions amount
to a private nuisance."

Private nuisance has been extended beyond protection of propriety interests to the plaintiff’s
enjoyment of his personal interests connected with land. In general, to obtain his relief, the plaintiff
must prove that; (1)the defendant is responsible for the objectionable activity; (2) the activity – in
the past, present, or future tense – damages or interferes with the plaintiff’s rights; (3) the activity in
unreasonable and (4) there is a causative association between the plaintiff’s rights to enjoy his
property and the defendant’s activity of which he makes complaint.
Nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of
some right over or in connection with it. Lord Lloyd in Hunter v Canary Wharf, stated that there are
three kinds of private nuisances: (1) nuisance by encroachment on a neighbour's land; (2) nuisance
by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's
quiet enjoyment of his land. Nuisance is an indirect interference with another's use and enjoyment
of land, and normally requires proof of damage to be actionable.

The claimant must prove that the defendant's conduct was unreasonable, thereby making it
unlawful. The rule is sic utere tuo ut alienum non laedas.

There must be a continuous interference over a period of time with the claimant's use or enjoyment
of land, as was seen in British Celanese v Hunt (Capacitors) Ltd:

“Foil had blown from the Defendants’ land where it was stored and had damaged an electricity
substation, causing the electricity to an industrial estate to be cut off. This had occurred once a few
years previously because of the way in which the material was stored. The trial judge held this to be
a private nuisance".

An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining
land from natural hazards on his land as seen in Leakey v National Trust. The National Trust owned
land upon which there was a large mound of earth which was being gradually eroded by natural
processes, and was sliding onto the plaintiff’s property. It was held that an occupier must take such
steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on
his land.

Only a person who has possession of the land affected by the nuisance will succeed in a claim. Any
person who creates the nuisance can be sued, whether or not that person is the occupier of the land
at the time of the action. Occupiers who adopt and continue to allow nuisances on their land may
also be liable, even if such nuisances were created by predecessors in title, trespassers or third
parties. Held in Sedleigh Denfield v O'Callaghan Lord Wright said:

“…the liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the
defendant by himself or those for whom he is responsible has created what constitutes a nuisance
and it causes damage, the difficulty now being considered does not arise. But he may have taken
over the nuisance, ready-made as it were, when he acquired the property, or the nuisance may be
due to a latent defect or to the act of a trespasser, or a stranger. Then he is not liable unless he
continued or adopted the nuisance or, more accurately, did not with out undue delay remedy it when
he became aware of it, or with ordinary and reasonable care should have become aware of it. This
rule seems to be in accordance with good sense and convenience. The responsibility which
attaches to the occupier because as possession and control of the property can not logically be
limited to a mere creation of the nuisance. It should extend to his conduct if, with knowledge, he
leaves the nuisance on his land".
Furthermore as regards to nuisance the Rylands v Fletcher rule of nuisance Blackburn J. held that to
succeed in this tort the claimant must show:

That the defendant brought something onto his land;

That the defendant made a "non-natural use" of his land (per Lord Cairns, LC);

The thing was something likely to do mischief if it escaped;

The thing did escape and cause damage.

To add to the Rylands rule, foreseeability is now a further requirement according to the House of
Lords in Cambridge Water Co v Eastern Counties Leather, that the harm of the relevant type must
have been foreseeable, that of a reasonable user the principle of give and take as between
neighbouring occupiers of land.

There is a difference between things that grow or occur naturally on the land, and those that are
accumulated there artificially by the defendant. The defendants’ in Rylands v Fletcher brought water
onto the land. To define a non-natural use of land one has to establish the purpose of such land or
the nature of such land, in this case being a domestic home and bringing additional tanks to store
water would be a non-natural use of the land. The thing brought onto the land must be something
likely to do mischief if it escapes. In such a situation, the defendant keeps it in at his peril. There
must be an escape of the dangerous substance from the defendants’ land. Therefore, on the above
test a breach has occurred, water being brought and accumulated on the land did escape and in fact
caused the damage and can be actionable under this tort.

Public nuisance has a wide application that could capture the public at large Lord Denning in
Attorney General v PYA Quarries Ltd stated:

“I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so
widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect
one person to take proceedings on his own responsibility to put a stop to it, but that it should be
taken on the responsibility of the community at large."

The negligence action is dependent on that a duty of care was owed and that the duty was
breached. Concerning a public nuisance the proof is dependent on actual damage suffered in the
exercise of his rights as a member of the public.

Fault in Defamation
Defamation can be defined as a false accusation of an offence or a malicious misrepresentation of
someone's words or actions. In Quigley v. Creation Ltd. Walsh J. defined defamation by stating:

“the wrongful publication of a false statement about a person, which tends to lower that person in
the eyes of right-thinking members of society or tends to hold them in hatred, ridicule or contempt,
or causes that person to be shunned or avoided by right-thinking members of society".

The courts have to balance between to fundamental constitutional rights namely the right to free
expression under Article 40.6.1and the right to a persons good name and reputation under Article
40.3.2, further more under Article 10 of the European Convention on Human Rights where the rights
to freedom of speech is protected. The tort of defamation prior to 2009 attracted very large
amounts in damages because cases are conducted with a jury in the High court, the Defamation Act
2009, seems to have curtailed this. There was a need for the legislator to legislate in this area of
law.

The Tort of defamation attaches civil liability to the defendant where upon the proof that the
statement made was disseminated without justification and that it damaged the plaintiff’s good
name and reputation.

The fault in defamation cases is simply the standard of which the person who made the defamatory
statement used and is directly related to the type of plaintiff. To define that fault questions like: was
it a mistake? Was it done intentionally? Was it done maliciously? - have to be answered. Public
figures require malicious statement; private figures require a mere negligence statement that is
false.

Fault in Trespass
Trespass to land occurs where a person directly enters upon another's land without permission, or
remains upon the land, or places or projects any object upon the land. This tort is actionable per se
without the need to prove damage. Trespass to airspace above the land can be committed. In
Kelsen v Imperial Tobacco Co., Defendant committed trespass by allowing an advertising board to
project eight inches into Plaintiff's property at ground level and another above ground level. Like
nuisance possession of land is required, to protect the land, so only a person who has exclusive
possession of land made sue. A continuing trespass is a failure to remove an object unlawfully
placed on land. It will lead to a new cause of action each day for as long as it lasts as in Holmes v
Wilson and others were the Defendants’ built supports for a road on Plaintiff's land. The Defendants’
paid damages for the trespass, but were held liable again in a further action for failing to remove the
buttresses.

In Basely v Clarkson 1681 the defendant had cut grass on land belonging to the plaintiff. It was
shown that the defendant honestly believed the land was his own; very possibly that belief was
reasonable in the circumstances. And still, he was held liable to the plaintiff. Trespass has to be
voluntary, in the sense that plaintiff has to show that the defendant intentionally did the things that
comprised the trespass, but it is not necessary to show that the defendant intended to trespass. In
trespass to person in Stanley v Powell 1891, where it was decided that an element of fault was
required at least in trespasses to the person. In this case, a bullet from the defendant's gun
ricocheted off a tree stump and struck the claimant. The claim failed, because the claimant had not
shown any fault on the part of the defendant. He had not fired the gun carelessly, and could not have
been expected to foresee the accident. However, in this case a principle was created that in
trespass, the burden of disproving fault lay with the defendant; in negligence it is the plaintiff’s job to
prove fault. As negligence continued to expand, cases involving trespass were often decided on the
same fault basis as negligence.

Fault in Passing- off

Passing-off can be defined as a making some false representation (with intention or without it) likely
to induce a person to believe that the goods or services are those of another. Passing-off is a
recognised common law tort which can be used to enforce unregistered trademark rights. The tort
of passing off protects the goodwill of a trader from a misrepresentation that causes damage to
goodwill. In the tort of Passing-off there are three elements, often referred to as the Classic Trinity,
which must be fulfilled. These are:

1) Goodwill owned by a trader.

2) Misrepresentation.

3) Damage to goodwill.

The Plaintiff also has the burden of proof to show false representation (intentional or otherwise) to
the public to have them believe that goods or services of Defendant are that of the Plaintiff; some
connection between Plaintiff’s and Defendant’s goods or services or trade. Plaintiff must show
likelihood and actual deception or confusion in the public. Newsweek Inc. v British Broadcasting
Corp.

Fault in Wilkinson v Downton

As we know in Wilkinson v Downton Common Law first recognised the tort of intentional infliction of
mental shock. In this case plaintiff, Mrs Wilkinson, suffered a violent shock to her nervous system,
causing her to vomit and for her hair to turn white and other more serious and permanent physical
consequences which at one time threatened her reason, and entailing weeks of suffering and
incapacity to her as well as expense to her husband for medical expenses. Like most of the above
analysed torts, this case is fault-based; the burden of proof on defendant’s fault lay on the plaintiff’s.
Mrs Wilkinson had to show that:

Defendant acted intentionally or recklessly; and

Defendant’s conduct was extreme and outrageous; and

Defendant’s act is the cause of the distress; and

She suffers severe emotional distress as a result of defendant’s conduct.

Fault in strict liability

Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's
damages without any requirement for plaintiff to prove that the defendant was negligent.

Liability for Defective Products Act, 1991 this act imposes strict liability on the producer for damage
caused by a defect in the product. The consumer does not need to show negligence or fault on the
producer’s part.

S.2 of the Act defines liability:

2.—(1) the producer shall be liable in damages in tort for damage caused wholly or partly by a defect
in his product.

A producer in this context includes manufacturers, importers and suppliers (s.2 (2)). ‘Damage’ is
death or personal injury of loss of or damage to any property other than the defective product itself
(s.1 (1) (a) (b)).

The user must merely show the damage, the defect and the causal relationship between the defect
and the damage.

Talking about policy reasons behind the introduction of statutory measures creating strict liability, so
called "children of the industrial revolution", were said to be necessary for several reasons:

1) The sheer bulk of cases could overwhelm court systems;

2) The difficulty of proving mens rea would create lengthy and cumbersome trials;

3) The penalties imposed would not stigmatize the defendants, but merely regulate their behavior by
making them more cautious.

Conclusion
Despite the literal meaning of the word `tort', the law of tort is not usually concerned with
establishing who is at fault - blameworthy - in a particular action. It is concerned with apportioning
the losses between the parties in question. In some torts the claimant will have to show some
particular element of fault, in others he won't. The distinction between torts is that some torts
require a proof of carelessness, some - proof of intention and torts that require no fault to be proved
at all is largely historical. Strict liability imposed by statutory provisions makes litigation more
simplistic from plaintiff prospective as he does not have to prove any fault on the defendant. The
law imputes strict liability to situations it considers to be inherently dangerous. It discourages
reckless behavior and needless loss by forcing potential defendants to take every possible
precaution. It also has the effect of simplifying and thereby expediting.

It is hard to say which system, fault or no-fault, is better. I think that if to abolish fault test in
nominated torts of negligent, nuisance, trespass, defamation, etc. it would make it difficult to
distinct the named torts and would bring some mess into common law. As both systems serve their
purpose in my opinion it should be left as it is. All actions against the wrongdoers will be taken in
one single action as concurrent wrongdoers, to maximise compensation for damages in respect to
the property. However with regards to the economic loss there is no guarantee that this loss can be
recovered.

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