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.