Law_Fault

Fault as a concept in whichever area of law is a way of describing legal blame and responsibility. The basic principle is that a defendant (D) should be able to foresee the harm caused by his actions and aims to avoid such. Fault is a way the courts aim to achieve justice or at least balance to loss suffered by the victim against the sanction imposed by the D. In criminal law, the requirement of Mens Rea (MR) is used to decide whether a D has intent when he commits the act and is at fault for his crime. In contract law, the person who breaches a contract is liable and in tort, foreseeable is appropriate in all aspects of negligence. Theoretically, fault liability requires intention or a conscious failure to take care by the D. However, the courts have developed the strict liability offences where state of mind is not taken into account when finding the D is at fault. For instance, in criminal law, when the protection of society in general is taken into consideration, MR is not needed to prove the culpability of the D who might not be at fault anyway. The Storkwain Ltd case (1986) regarding the prevention of unauthorized drugs is an example. Further example is that of G (2006) when the D was charged under s5 of Sexual Offences Act 2003 with rape of a child under 13, even though he did believe on reasonable grounds that the V was 15. In contract law, strict liability can be found in the Sale of Goods Act 1979 (amended) or in the Supply of Goods and Services Act 1982. The use of vicarious liability in tort ensures that the employer is liable for his employee’s negligence whether or not he knows or commits the tort (Poland v. Pars 1927) or Rylands v. Fletcher (1868) imposed the liability of a man bringing things onto his land. The big question is that is fault an essential part of the English law. The legal presumption is that there should be “no liability without the proof of fault”. It is needed to note that in criminal law, the D remains “innocent until proven guilty” and in order to prove his fault, the prosecutors must do it ‘beyond any reasonable doubt’. Thus, it can be seen that fault is extremely important in this area. To prove a person guilty of an offence, both Actus Reus (AR) and MR are required. The AR is the physical element which includes a voluntary act (Hill v. Baxter) or an omission (failure to act – R v. Millers 1983). It requires the proof of a factual link between the act and the end result (R v. White 1910) and the act must be substantive enough to make the end result reasonably foreseeable (R v. Roberts) or else the D is not liable. The proof of a break in chain of causation will remove fault and results in an acquittal (R v. Blaue). MR can be seen as the main ‘fault’ element of the offences based on which the law divides different levels of fault. The highest is where specific intention is possessed by the D e.g. murder or to cause GBH (s.18 Offence against the Person Act 1861). Recklessness involves fault in the sense that D has foreseen the risks of a consequence of his actions. This level is sufficient for s47 OAPA 1861 (R v. Ireland 1997 or Chan-Fook 1994). Negligence is based on what the reasonable man would foresee. Gross negligence resulting in involuntary manslaughter is at a higher level than just negligence (Bateman 1925) There are various defences available in the criminal law which can reduce or eliminate fault. These are said to allow the element of doubt in the law which is strictly on the basic beyond reasonable doubt. For instance, defence of mistake can eliminate fault so that D is not found guilty (Williams 1987). Some defences reduce liability only. The main examples of these are dismished responsibility, provocation a suicide pact set out in the Homicide Act 1957. If succeeds, D is not guilty of murder but instead, voluntary manslaughter. The importance of this is that the judge can give less serious sentence than life imprisonment from less blame worthy D than those who deliberately kills (Byrne 1960). Another way that this difference in levels of fault is available is through the sentencing with the exaggerating and mitigating factors. The sentence can either be heavier or lighter. From this, it can be seen that fault plays a central role in sentencing an offender. However, should there be strict liability or fault without liability' The case of Sweet v. Parsley suggests that this may lead to problem in the law in which people who are completely innocent may be convicted as mentioned above. Fault is a concept that is particularly relevant to the law of tort although it is not as important as in criminal since the tort of negligence is imposed on the balance of probability. This difference can be explained by the differences in the sanctions i.e. in tort, there are remedies such as money rather than sentencing. In negligence, D will not be liable unless the Claimant (C) can also show fault by demonstrating that the D owed the C a D.O.C (which he has breached by falling below the standard of care of a ‘reasonable person’ (the Caparo test is applied). The D must act to avoid foreseeable farm (Donoghue v. Stevenson 1932) to his neighbour. Professionals are measured according to their own standard (Bolam 1957). Damages will only be awarded when the damage is not too remote a consequence of breach (The Wagon Mount (no 1) 1961). Fault can also be found in Occupiers’ liability under the 1957 Act which is basically that the D is liable because he creates a foreseeable harm casing the visitor damage or injury (Moloney v. Lambeth LBC 1966). Also, in nuisance, fault can be diagnosed where malice is an issue from either the D or C (Christie v. Davey 1893). Even in vicarious liability which is a form of strict liability, an employer is at fault for the tort of his employees as he is bound to hire appropriate staff and has control over their actions during the course of their employment. Problem is that is this fair or not' Public protection once again is considered here. In general, although there has been suggestion for the reform of fault liability as it seems to be unfair to V (secondary victims – Alcock 1992 or cases of medical negligence) or even D, the use of fault in law is said to be essential to maintain a just system.