The quest for strict liability in modern law
Yet, on the other hand, the ascendancy of fault has not been able to stifle all progress. Again, the quest for a more broadly based responsibility for the creation of an abnormal risk has manifested itself in three different ways.
On the one hand the courts have occasionally stretched the standard of care expected of the defendant to such an extent that it is hardly distinguishable from strict liability. Thus, for example, in Daly v. Liverpool Corporation42 a pedestrian who had been knocked down by a bus succeeded in a claim based on negligence although Stable J specifically stated that in his judgment "there was no sort of culpable negligence on the part of the driver". But, the learned judge continued, a motorcar has today become "a lethal weapon" and the standard of care and skill which the law requires in the driver "is very high indeed". It is in fact a standard "which it is impossible to reconcile with the discharge of the duties of drivers of public vehicles".343 In other cases, the courts have alleviated or even reversed the burden of proof by means of the doctrine of res ipsa loquitur.344'9 For a general evaluation of the rule of Rylands v. Fletcher in modem English law, cf. Windeyer J, in Battling v. Wong (1969) 122 CLR 249 at 296 sqq.; Will, op. cit., note 266, pp. 122 sqq.; Simpson, (1984) 13 Journal of Legal Studies 214 sqq.; Zweigert/Kotz, pp. 418 sqq.; Fleming, Torts, pp. 308 sqq. Cf. also Spencer, (1983) 42 Cambridge LJ 65 sqq. He argues that, in some ways, the decision that the use of a motor-vehicle on the highway involves fault rather than strict liability (Wing v. L.G.C.O. [1909] 2 KB 652), "is the most significant event in the history of the law of tort this century".
3411 More particularly, there is no strict liability for motorcar accidents; this is severely criticized, for instance, by Lord Denning, What Next in the Law (1982), p.
128; cf. also Spencer, (1983) 42 Cambridge LJ 80 sqq. On the problems raised by traffic accidents in general and on the ways in which different modem legal systems have responded (or failed to respond) to them, see Tune, op. cit., note 260, vol. XI, 14, nn. 1 sqq.31 For examples, see Fleming. Torts, p. 302; as far as Scots law is concerned, cf. Geoffrey MacCormack. "Culpa in the Scots Law of Reparation". 1974 Juridical Review 13 sqq.. 18.
3,2 [1939] 2 All ER 142.
30 Cf. also, as far as motorcar accidents are concerned. Spencer. (1983] 42 Cambridge LJ 80 ("Consequently, in cases where the plaintiff excited their compassion, the courts began to twist the law of negligence to make a defendant liable for negligence when he was really not negligent at all. to make his insurers pay""); cf.furthcr the (comparative] observations by Lawson/Markesinis. pp. 142 sqq. They quote, inter alia, from an American study according to which even a "good driver commits on average more than nine errors of four different natures in five minutes of driving". This type of inevitable error. Lawson and Markesinis conclude, "makes the moral and educational value of a fault-based system meaningless in so far as it makes people responsible for 'faults' for which they cannot be reproached". See also Tune. op. cit.. note 260. vol. XI. I. nn. 72. 144 sqq. and. as far as Louisiana is concerned, the green snake case, as discussed by Vernon V. Palmer. "In Quest of a Strict Liability under the Code". (1982] 56 Tulane LR 1317 sqq.
344 "?v„ since that barrel of flour rolled out of that English warehouse window and fell upon the usual hapless pedestrian, giving rise to Baron Pollock's remarks during argument And finally, there have also been instances where Parliament has openly introduced new forms of strict liability; this has happened in the Civil Aviation Act of 1949, the Nuclear Installations Act of!965, the Gas Act also of 1965 and the Vaccine Damage Payments Act of 1979. Proposals to add to this list have been flourishing in recent years,[6013] [6014] but, as in Germany the question has also repeatedly been debated whether the extension of the notion of strict liability by piecemeal legislation still provides a satisfactory solution to the modern problems of loss distribution.[6015]
VI.
More on the topic The quest for strict liability in modern law:
- STRICT LIABILITY IN ENGLISH LAW
- Strict liability in disguise
- Strict Liability
- Liability for damage done by animals in modern German law
- 2. Liability for others in Roman law (apart from noxal liability)
- The quest for security of tenure
- The position in modern French and German law
- The position in modern law
- Roman-Dutch law; modern German law
- Consent as the basis of contract in modern law
- MODERN LAW
- 1. Set-ofFin modern law
- Vicarious liability in South African law
- Roman-Dutch and modern German law