strict liability

Usually, liability in law arises where someone negligently or intentionally causes a wrongdoing to another. There are however instances where intention, negligence or recklessness does not form part of the requirements to constitute a cause of action in law. These are commonly torts of ‘strict liability’, whereby the mere doing of the act is adequate to make out the wrongdoing and entitle the claimant to an award of damages. Negligence (a lack of care, whether deliberate or unintentional) or intention to commit the legal wrong is not relevant.

In such torts, it is immaterial that the defendant:

1. did not calculate its actions to cause damage;
2. exercised all reasonable care (and indeed extreme care);
3. acted in good faith; or
4. intended any particular result.

Thus there is no requirement to make out a mental element to be successful to establish the liability of the defendant.

This means that innocence is no defence to a claim which imports strict liability; likewise, no intention or negligence is required to be shown by the claimant on the part of the defendant; the defendant might have used all due care prior acting. In criminal law, this mental element is known as the mens rea (and when combined with the relevant actus reus constitutes the offence).

In strict liability cases, the claimant must however show that the damage suffered was caused by proscribed by the tort in question, in order to recover loss. In the event that loss cannot be proven by evidence, then the claimant is left to recover nominal damages.

Examples of Strict Liability

The causes of action which import species of strict liability include:

1. infringement of intellectual property rights, including
   1. the statutory rights granted by copyright, patent, designs (both registered and unregistered) and trade mark infringement; and
   2. the common law tort of passing off, also known as the law of unregistered trade marks,
   3. an action in equity to prevent to misuse or unauthorised disclosure of confidential information;
2. employment relationships, where an employer is strictly liable for the acts and omissions of an employee where the employ acts (or fails to act) in the course of their employment on principles of vicarious liability.
3. product liability;
4. defamation;
5. procuring a breach of contract;
6. the tort of conversion.

Stricty liability also applies in torts where a common design exists

Strict Liability and Defences

Strict liability is the first step to establish the liability of the defendant. It likely that defences will be available to the defendant, depending upon the facts of the case and the particular tort. Defences may operate to absolve the defendant of liability or reduce the quantum of damages payable to the claimant.

Contracts and Strict Liability

Damages for breach of contract are award for the breach, regardless of fault on the part of the offending party, again subject to any defences which may be available whether under the terms of the contract itself, the conduct of the parties, or both. Accordingly, a party in breach of contract is strictly liable for breach.