Law and Fault

The meaning of fault.

In general terms, fault means responsibility for a wrongdoing. It encompasses the concept of attaching blame to certain behaviours and levels of culpability. In law, fault will have a specific meaning depending on which law is under consideration.

In contract law, the meaning of fault may relate to breach of contract, since it is the breaking of a legally enforceable promise. Vitiating factors also allow an innocent party to escape a contract where the other party is at fault. This may be because of a misrepresentation and these are ranked according to the degree of fault: innocent, negligent or fraudulent.

In tort law, fault may relate to falling below the standard of a reasonable man in negligence liability as established in Vaughan v Menlove (Case summary). It could be failing to take reasonable steps to prevent  reasonably foreseeable harm under the Caparo test.  An unreasonable use of land causing a reasonable interference with another's use of or enjoyment of their land would be an example of  the meaning of fault  under the law of nuisance.

In criminal law, the meaning of fault varies depending on the particular offence under consideration. The meaning of fault will be detailed in the elements of the particular crime. Most ‘true crimes’, with the exception of strict liability crimes, require proof of an action which can be said to be at fault, the actus reus, in addition to requiring proof that the mental state of the defendant was at fault.  Whilst the actus reus varies according to the particular crime, there exist common criteria for the mens rea. The meaning of fault for the mental element is set out in the mens rea. There are differing levels of mens rea each reflecting a different degree of fault on the part of the defendant.   There is intention, this reflects the highest degree of fault required for criminal liability as a person who does something with intention to do so is obviously more culpable than one who acts without intent. The meaning of intention also encompasses oblique intent. This was defined in  R v Woollin (Case summary) as where the result is virtually certain to occur from the defendant’s conduct and the defendant appreciated that this was the case.    The move away from an objective test of oblique intent seen in DPP v Smith (Case summary) demonstrates that fault of the defendant is very much part of the meaning of oblique intent. Another level of mens rea is recklessness. The meaning of fault for recklessness was set out in R v Cunningham (Case summary) as occurring where the defendant foresaw a risk of what occurred might occur and continued regardless.  This was refined in R v G & R (Case summary)for criminal damage as where d foresees a risk of damaging property but continues regardless where it was unreasonable for him to do so. Thus the meaning of fault varies depending on the crime.

Is fault essential in establishing liability?

To a large extent, fault is an essential ingredient in establishing liability. Fault can be used to justify imposing punishment and sanctions in criminal law or to order that compensation is paid in civil law. However, there are exceptions to this where a person may be liable without being at fault. Fault is generally an essential ingredient in establishing the actus reus of a crime, however it is not always required. The fact that the actus reus of a crime must be undertaken voluntarily, demonstrates that fault is generally required:

R v Whoolley Case summary

However, this is not the case for state of affairs crimes:

R v Larsonneur Case summary

The rules of causation generally only allow liability where the defendant’s wrongful action caused the damage, however, sometimes a person may clearly be at fault yet not incur liability.

For example, under the ‘but, for,’ test of causation:

R v White case summary

Furthermore, the eggshell skull rule can mean that the defendant is liable for an offence which is out of all proportion to their level of fault:

R v Hayward Case summary

This demonstrates that whilst fault may be essential in establishing actus reus, it may not be the determinative factor in ensuring an appropriate crime and sentence is awarded.

The majority of true crimes require a fault element in the mens rea. Intention requires the highest degree of fault and is thus generally associated with more serious crimes. For example, murder or section 18 GBH. This demonstrates that proof of fault is essential in serious crimes.

Recklessness also requires fault on the part of the defendant in that the knowingly taking of an unjustified risk is culpable behaviour.  Up until the decision in R v G & R (Case summary), it was possible for a defendant to be liable where they were unaware of a risk, provided the risk was an obvious and serious risk under Caldwell recklessness (Case summary). This led to the conviction of a 14 year old girl of low mental capabilities in the case of Elliot v C (Case summary). The girl was not capable of appreciating the risk, and was therefore, liable with out being at fault. The injustice of this position was reversed in R v G & R (Case summary), and now a person would only be perceived as being reckless where they were aware of the risk, and thus the requirement of fault has been restored. 

Criminal negligence is a further area where a defendant may be liable where they are not at fault. In the case of McCrone v Riding, it was held that a learner driver had to meet the standard of a reasonable competent qualified driver. He was thus convicted of driving without due care and attention, despite the fact that he was not capable of meeting that standard. This demonstrates that a person may incur liability without being at fault.

Further exceptions to the requirement of fault exist in crimes of strict liability. In the case of Callow v Tillstone (Case summary), a butcher was found liable for the sale of unfit meat, despite having the meat checked over by a vet.  Furthermore, in the case of R v Howells (Case summary), the defendant was convicted of being in possession of a firearm without a licence, when he believed that a licence was not required as it was sold to him as an antique.

Defences also play a role in fault. For example, one who acts in self-defence, out of duress, as an automaton or where the victim consents is not regarded as being at fault and therefore is absolved from liability. 

Sentences also aim to reflect the degree of fault of the defendant by looking at the aggravating and mitigating factors. However, where there exist mandatory or minimum sentences the court is prevented from taking the level of fault into account. Within tort law, fault is also generally required, but there are some notable exceptions to this.

In the tort of negligence, fault of the defendant is generally required. The defendant's conduct must fall below the standard of a reasonable person as established in Vaughan v Menlove Case summary). Their conduct can therefore be said to be at fault. However, in the context of learner drivers and trainees, such defendant's are expected to meet a standard that is not within their level of experience so may not be at fault, yet liability is imposed, following Willsher v Essex (Case summary) and Nettleship v Weston (Case summary). Furthermore, the defendant that had a stroke whilst driving in Roberts v Ramsbottom (Case summary) was not at fault, yet he was held liable. In the context of land based torts, whilst the tort of nuisance requires fault in the form of unreasonable use of land causing an unreasonable interference, liability under Rylands v Fletcher (Case summary), represents a form of strict liability whereby a defendant may be liable even if they have exercised all reasonable care. In summary, fault is the degree of blame attached to an individual or behaviour. Generally, fault is a requirement in establishing liability, but there are notable exceptions to this. Principles of natural justice would dictate that fault should be required but this is not always practical.

Should fault be required in establishing liability?

The injustice arising from strict liability demands that fault should be a requirement in establishing criminal liability.  However, there exist practical considerations and further arguments to support a finding that in some instances, fault should not be essential in establishing liability. Where liability is imposed without proof of fault it offends the natural sense of justice. This can be seen in Callow v Tillstone (Case summary), where the butcher was liable for the sale of unfit meat despite having the meat certified as safe.  Also, in Elliot v C (Case summary) where the 14 year old girl was liable despite not being capable of appreciating the risk. Such cases lead to assertions that fault should be an essential ingredient in establishing liability. However, there are many practical reasons for imposing liability without proof of fault.   Strict liability crimes have the advantage of being cheaper and easier to administer. If all such offences required proof of fault the legal system would be unable to cope with the workload.  Presently, offences such as speeding and driving without insurance, can be dealt with administratively through the post, without the need for the defendant to attend court.   If these offences required proof of fault, a trial would be required and it would be almost impossible for the prosecution to prove that the defendant intended to speed or had knowledge that they were speeding.  This demonstrates that is not always desirable to have fault as an essential ingredient to establishing liability. Furthermore, strict liability crimes are generally aimed at protecting the health and safety of the public and therefore they are needed to raise standards and act as a deterrent.  Thus it is a moot point as to whether fault should always be essential. However, if a person is unaware that they are committing an offence it is difficult to see how they could take actions to raise standards or prevent it.  For example, in Callow v Tillstone (Case summary) the butcher took all precautions necessary and yet was still liable.  Also in R v Howells (case summary), the defendant did not know the gun required a licence.  Furthermore, the offence of speeding is a strict liability crime and yet it is arguably one of the most frequently broken laws.  The law currently recognises that ‘true crimes’ as oppose to regulatory crimes require proof of fault as established in Sweet v Parsley (Case summary).  However, this ignores the fact that any criminal conviction results in stigma and can affect a person’s business or ability to gain employment in their profession.

In tort law, arguments may be made for imposing liability without proof of fault. For example in Nettleship v Weston (Case summary), the learner driver was held liable, despite the fact that she was not capable of meeting a higher standard and could not be said to be at fault.  However, if she was not found liable the claimant would have gone uncompensated. This would be unfair on the injured claimant and whilst at first sight it may seem unfair to the defendant, in reality it is the insurance company that pays not the defendant. Similarly in Roberts v Ramsbottom (Case summary), the defendant driver had a stroke and  knocked into a pedestrian. He was found liable. Again it can hardly be said that he was at fault however, in order to do justice to the claimant he was held to be in breach of duty. Thus, it can be seen that fault should not always be an essential ingredient in establishing liability. It can be seen that whilst strong arguments based on justice exist for having fault as an essential ingredient, there also exist practical reasons for allowing liability without proof of fault.

In summary, fault is the degree of blame attached to an individual or behaviour. Generally, fault is a requirement in establishing liability, but there are exceptions to this. Principles of natural justice would dictate that fault should be required but this is not always practical.