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1 STRICT LIABILITY: MEANING AND RATIONALE

Strict liability is a general term used to describe forms of liability that do not depend
upon proof of fault. Where a defendant is held responsible for unforeseeable harm or
where he is liable despite having taken all reasonable care to avoid foreseeable harm,
then liability can be said to be strict. The distinction between fault and strict liability is no
rigid. Strict duties may range from almost absolute liability, allowing virtually no
defence, to duties which amount to little more than a high standard of care in negligence.

There is no obvious unity of purpose in the areas of social conduct that are subjected to
stricter duties. If there is a discernible theme it is that people who engage in particularly
hazardous activities should bear the burden of greater risk of damage, or the risk of
greater damage, that their activities generate. Strict liability focuses on the nature of the
defendant's activity rather than, as in negligence, the way in which it is carried on, but it
should not be assumed that strict liability is synonymous with 'liability without fault'. An
activity which creates an unusual or exceptional risk may be justified by its social utility,
and therefore may be reasonable on a negligence theory, but the defendant has imposed
this risk on others for his own purpose and so his conduct is not necessarily blameless.
This idea of the allocation of the burden of the risk to the person who created it is
sometimes used as a justification for strict liability. But this usually rests on certain
unstated assumptions about causation. For example, if a housing estate is built alongside
an existing munitions factory, which created the risk of damage to the houses from an
explosion. Moreover, negligence is also concerned with risk allocation. The 'risk' of
suffering a non-negligent injury is the victim's whereas the risk of causing harm by
carelessness is the actor's. Thus analysis in terms of risk allocation does not explain why
particular kinds of risk are dealt with on the basis of fault, whereas others merit strict
liability. Appeals to the notion of extra-hazardous activities appear somewhat specious
when it is recalled that in practical terms driving a motor vehicle is one of the most risky
activities that the vast majority of the population ever undertakes, and yet it is the
paradigm of a negligence action (consider Spencer [1983) CLJ 65).

A more plausible explanation of strict liability is that it operates as a loss distribution

mechanism. Accidental damage arising from the materialization of a risk inherent in a j
particular activity is paid for by the person or enterprise carrying on the activity. That
person is in the best position to spread the loss via insurance and higher prices for the
products that the activity creates, and so the true social cost of those products is borne by J
the .consumers -in srtiall•atricitints VitaribuS' liability is a - gobd tx-ample-Of this process:
-However, fault liability can be regarded as a loss distribution mechanism too, at least in
conjunction with insurance against liability. The only difference between strict and fault
liability in this respect is the question of which losses are distributed — under fault

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liability non-negligent damage lies where it falls, whereas under strict liability accidental
harm is distributed.

The rule of strict liability owes its origin to the case of Rylands v. Fletcher. The facts of •
this case were as follows. B, it millownei, employed independent euntmetuis, whu were
apparently competent, to construct a reservoir on his land to provide water for his mill. In

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