Fault is defined in terms of responsibility and culpability or blame for something wrong. Responsibility is defined in terms of ability to take rational decisions and rational is defined in terms of reasonableness.
Fault is generally an essential requirement of liability in the law of tort. Liability in negligence requires proof of a breach of duty. A breach of duty arises when the defendant fails to act or not act as “the reasonable man” would have. In Bolton v Stone the defendants acted as a reasonable man would have, by taking action in creating a higher fence around the cricket ground to minimise the risk of people outside the ground being injured by the cricket balls. However, in Paris v Stephney borough council, the court held that in light of potential serious consequences posed by welding to an employee with only one eye, the employer should have taken reasonable action in providing safety goggles. Liability under the occupiers liability act 1957 also required proof of fault.
Fault is also relevant to the general defence of a contributory negligence under the law reform act 1945. S.1(1) damages are reduced according to the claimants responsibility for the damage. In Froom v Butcher, the claimant’s damages were reduced by 25% due to his failure to wear a seatbelt.
There are however areas of tort in which there is no need to provide fault. For example, nuisance is a strict liability tort. The defendant cannot claim as a defence that he took reasonable care to avoid causing nuisance. The rule in Rylands v Fletcher is another strict liability tort, however since the case of Cambridge water company v Eastern countries leather plc (1994), negligence principles have applied in respect of the type of damage caused having to be foreseeable.
It is also important to consider the principles of vicarious liability which imposes liability for someone else’s fault. In the work place, the employer is liable for torts committed while the employee is doing what he/she is authorised to do but doing it in an authorised manner. In Rose v Plenty (1976), the employer had expressly forbidden employees to allow people to ride on the milk floats. The employer was, nevertheless, vicariously liable, when a 13 year old boy was injured while helping an employee deliver milk.
To be found guilty in most criminal offences an actus reus and mens rea must be present. The actus reus must usually be committed voluntarily. If the accused is not in control of his/her actions, there are general defences that the accused may raise, such as insanity, automatism and duress. In R v Bailey the accused, a diabetic successfully pleaded the defence of automatism.
The mens rea comprises the mental element of a crime. All of the non-fatal offences except that provided by S,18 offences against the persons act, are crimes of basic intent. Section 18 is a specific intent crime. All of the non-fatal offences, therefore require proof of fault for a conviction. Similarly all homicide offences require proof of fault. Murder is the most serious homicide offence. The accused must intend to kill or cause grievous bodily harm. The seriousness of the offence is recognised in the mandatory sentence of life imprisonment.
While fault is an essential requirement of liability in most crimes, there are nevertheless some strict liability and some absolute liability offences. Strict liability crimes have no fault requirement in terms of mens rea. This was seen in the case of Smedley v Breed, where the defendants were convicted, despite having taken all reasonable precautions to prevent contaminations of their food product occurring. Absolute liability crimes, however, have no fault requirement in respect of the mens rea or the actus reus. This was seen in the case of Winzar, who was arrested for being drunk on a highway, although he was forecefully removed there by the police.
The injustice of the decision in winzar is clear. The defendant did not voluntarily commit the offence and arguably should not therefore have had to bear legal responsibility for it. There are very few absolute liability offences, so convictions such as this are rare. However, there is numerous strict liability offences, these offences are usually justified on the basis that they are in the interest of the public.
The legal profession, the judges and the legislature regard the principle of non liability without proof of fault as being especially important in criminal law. A guilty verdict will result in the imposition of a sentence on the defendant.
The civil law is also based on the notion of the individuals responsibility. Individuals choose to behave the way they do and should therefore accept responsibility for the outcomes of their actions. However, while liability in civil law is generally based on proof of fault there has been a shift towards no fault liability in recent years.
Requirement to provide fault results in most accident victims not receiving any compensation. The welfare state legislation created the department of social security. Victims of accidents at work are now able to claim compensation from the system without the need to provide negligence. There are however many accident victims who are required to provide fault, including road accient victims and victims of medical negligence.
In conclusion it would appear that fault should be a requirement of liability more so in criminal law than in civil law. The unfairness of leaving an injured victim without compensation increasingly outweighs the unfairness of blameness individuals being required to provide compensation out of state funds.