The Evolution from Strict Liability to Fault in the Law of Torts (Hardcover)

PART I STRICT LIABILITY AND LEGAL HISTORY 1. Strict Liability and the Common Law Ancient Times English Law Importance of Forms of Action Influence of Criminal Law on the Civil Law Fault becomes More (Expressly) Prominent in the Civil Law Full Acceptance of Fault Th e Important Influence of Statute on Development of the Common Law Conclusion 2. Strict Liability and Particular Torts in Legal History Strict Liability and Damage to Property Interests Common Carriers Innkeepers Fire Firearms Animals Unifying Factors, if Any, in Cases of Continued Strict Liability Strict Liability and the Law of Defamation Strict Liability and Trespass to the Person Development of the Tort of Negligence Conclusions PART II RYLANDS v FLETCHER STRICT LIABILITY IN THE COMMON LAW WORLD 3. Rylands v Fletcher in the United Kingdom Introduction Facts Judgment of the Court of Exchequer Judgment of the Exchequer Chamber Judgment of the House of Lords Reflections Possible Explanations for the Decision in Rylands v Fletcher Enterprise Risk-Type Philosophy Reciprocal Risks Subsequent UK Decisions Conclusion 4. Comparative Approach to Rylands v Fletcher Liability Australia Canada United States Conclusion PART III THE THEORETICAL DEBATE: STRICT LIABILITY AND FAULT-BASED LIABILITY 5. Summary of the Theoretical Debate: Strict Liability and Fault-based Liability Introduction Jeremiah Smith Young Smith Fleming James Gregory Keating Utilitarian Support for Strict Liability: Jeremy Bentham Richard Epstein Howard Klemme Albert Ehrenzweig Christine Beuermann Argument for Strict Liability based on Difficulties of Proof Law and Economics: Guido Calabresi and Others Judicial Consideration of these Rationales in the Context of Strict Liability Theories against Strict Liability Law and Economics and Negligence Conclusion 6. Critical Reflections on the Justifications for Strict Liability Inappropriateness of Taking into Account Loss Spreading and 'Efficiency' when Making Judicial Decisions Inappropriateness of Focus on Deterrence Use of Terms with Highly Contested Meanings Liability for Non-reciprocal Risks Who Gets the Benefits? Difficulties of Proof Th e Plaintiff 's Activity or Behaviour Conclusion PART IV FAULT IN OTHER TORTS 7. Th e Tort of Nuisance and Fault History and Early Development Developments in UK Nuisance Law in the Last 50 Years Some Australian Authorities Academic Views Reflections Conclusion 8. Strict Liability in the Law of Defamation Introduction to Freedom of Speech Development of Law of Defamation Early Examples of the Strictness with which Liability Attached for Defamation Strict Liability Elsewhere in the Common Law World Fault Considerations in UK Defamation Law Introduction of Fault and Negligence Principles to American Defamation Law Reflections Conclusion 9. Trespass and Fault Convergence of Trespass and Negligence - Case Law Convergence between Trespass and Negligence - Academic Views Conclusion