Rules and Principles Concerning Liability and Fault (AQA A-Level Law): Revision Notes
Rules and Principles Concerning Liability and Fault
Introduction
Understanding liability and fault is essential for analysing any tort claim. These principles determine who must prove what, the standard of evidence required, and how responsibility is established. This foundational knowledge supports the entire tort law topic.
Assessment note: While you are unlikely to face a full exam question on these principles alone, this is underpinning knowledge that supports all tort topics. You are expected to be familiar with and competent in accurately using this terminology throughout your answers.
Burden and standard of proof
The burden of proof
In civil law, the burden of proof rests with the claimant. This means the claimant must prove that the defendant is liable for the harm suffered. Unlike criminal cases where the prosecution proves guilt, in tort law the person bringing the claim carries responsibility for establishing the defendant's liability.
The claimant must demonstrate:
- The defendant was at fault for the incident
- The defendant is responsible for the damage caused
The standard of proof
The standard of proof in civil cases is the balance of probabilities. This standard is significantly lower than the criminal standard of "beyond reasonable doubt."
The balance of probabilities means:
- It is more likely than not that events happened as the claimant describes
- The claimant's account must be more probable than the defendant's version
- If evidence is evenly balanced, the claimant will not succeed
- This effectively requires proof of "51% likelihood" or greater
Civil courts and jurisdiction
Civil cases are heard in different courts from criminal cases. The civil courts of first instance handle tort claims, with the appropriate court depending on factors such as the claim's value and complexity.
The main civil courts include:
- County Court – handles most civil claims, particularly lower-value matters
- High Court – deals with complex or higher-value claims
- Queen's Bench Division (within the High Court) – typically handles tort claims
Fault or no fault
The introduction of fault
The concept of fault was formally introduced into negligence law in Cambridge Water v Eastern Counties Leather (1994). Before this landmark case, fault was not always necessary for damages to be awarded. This case clarified that liability in negligence requires proof of wrongdoing.
Fault in tort law means some wrongdoing or blameworthy conduct by the defendant. It requires proving the defendant acted in a way that fell below the required standard of care or conduct.
Torts requiring fault
In certain torts, the claimant must establish the defendant was at fault. These fault-based torts include:
Negligence – The claimant must prove the defendant owed a duty of care, breached that duty, and caused foreseeable damage. Fault is central to establishing breach of duty.
Occupiers' liability – Under the Occupiers' Liability Acts 1957 or 1984, the claimant must show the occupier failed to meet the required standard of care towards visitors or trespassers.
Psychiatric damage – When claiming for psychiatric harm, the claimant must prove the defendant's negligent actions caused the psychiatric injury. Fault in causing harm must be demonstrated.
Pure economic loss caused by negligent misstatement – Following Hedley Byrne v Heller (1964), the claimant must prove the defendant negligently made a statement causing financial loss. Negligence (fault) in making the statement is essential.
Torts not requiring fault
Certain torts are classified as strict liability or no-fault torts. The claimant need not prove the defendant was at fault. These include:
Nuisance – In private nuisance, the claimant need only show unreasonable interference with use and enjoyment of land. How or why the interference occurred matters less than the fact it happened.
Rylands v Fletcher – This tort requires proof that something dangerous was brought onto land, escaped, and caused damage. The defendant's fault or carelessness in allowing escape is not necessary.
Vicarious liability – An employer can be held liable for torts committed by employees in the course of employment, even without personal fault. The employer's liability is automatic once the employee's tort is established.
The key distinction
For no-fault torts, the claimant must show:
- The relevant incident or interference occurred
- They suffered damage
- A causal link exists between the incident and damage
They need not explain how or why the incident happened, nor prove the defendant acted carelessly. The focus is on the fact something happened and caused harm, not on the defendant's conduct.
Defences and remedies
Defences in civil law
Defendants in civil cases have ways to refute a claim or reduce liability. However, far fewer defences are available in civil law compared to criminal law.
Defences in tort law generally:
- Divert blameworthiness from the defendant
- Shift some or all responsibility to the claimant
- Suggest the claimant was partially responsible for their own damage
Common defences include:
- Contributory negligence – reduces damages where the claimant contributed to their harm
- Consent (volenti non fit injuria) – where the claimant voluntarily accepted risk
- Illegality (ex turpi causa) – where the claimant engaged in illegal activity
- Necessity – in limited circumstances where the defendant's actions were necessary
Remedies for successful claims
When a claimant succeeds, the court awards a remedy. The two main types are:
Damages
Damages are financial compensation awarded to restore the claimant to their position before the tort occurred, as far as money can achieve this. This is the compensatory principle.
Types of damages include:
- Special damages – quantifiable financial losses (medical expenses, loss of earnings already incurred)
- General damages – non-quantifiable losses (pain and suffering, future loss of earnings, loss of amenity)
The aim is to put the claimant back where they would have been "but for" the tort. While money cannot undo physical injury or death, it addresses the consequences.
Injunctions
An injunction is a court order requiring someone to stop doing something or, occasionally, to do something. Injunctions are equitable remedies granted at the court's discretion.
Injunctions are most common in:
- Trespass – preventing continued unlawful entry onto land
- Nuisance – stopping ongoing interference with land use and enjoyment
Types include:
- Prohibitory injunctions – ordering cessation of an activity
- Mandatory injunctions – ordering positive action
- Interim injunctions – temporary orders pending trial
- Perpetual injunctions – permanent orders after trial
Courts consider whether damages would be adequate and the balance of convenience between parties before granting injunctions.
Remember!
Key Points to Remember:
- The burden of proof rests with the claimant, who must prove the defendant's liability on the balance of probabilities (more likely than not)
- Fault-based torts (negligence, occupiers' liability, psychiatric damage, pure economic loss) require proof of defendant wrongdoing
- Strict liability torts (nuisance, Rylands v Fletcher, vicarious liability) require only proof the incident occurred and caused damage – not proof of fault
- Cambridge Water v Eastern Counties Leather (1994) introduced fault as a requirement in negligence law
- Defences shift blame to the claimant, potentially reducing or eliminating liability
- Remedies are either damages (financial compensation) or injunctions (court orders to stop conduct)