Liability based on fault
Fault liability requires some basis to determine whether someone was negligent, i.e. at fault for the harm he caused. Briefly, that would require:
- Duty
- Breach of that duty
- Proximate cause
- Actual cause
- Damages
For example, if you were in a car accident, the fact that you were speeding might violate the law, and it will come into play to establish whether you were responsible for the accident, but the speeding in and of itself does not mean you are the person who caused the accident and you will not be held responsible just because you were speeding.
Strict liability
Strict liability is the principle which evolved from case of Rylands v Fletcher in the year 1868. This principle clearly states that a person who keeps hazardous substances in his premises, is responsible for the fault if that substance escapes in any manner and causes damages. This principle stands true if there was no negligence on the side of the person keeping it and the burden of proof always lies on the defendant to prove how he is not liable.
Essentials Of Strict Liability
Dangerous Thing
This simply means that the defendant will be liable for the damages only when the thing that escaped from his premises was a dangerous thing. The word ‘dangerous’ here implies that it is likely to do any sort of mischief if it escapes from the land of the defendant. In the case studied above, the dangerous thing was the collected water in the reservoir on Fletcher’s land. The rule specifies that things like gas, electricity, explosives, flag pole, noxious fumes, vibrations, yew trees, sewage and even rusty wires can also be termed as dangerous if escapes from the premises of the owner.
Escape
It is also essential that the thing causing harm must escape from the premises of the defendant. It should not be within the reach of the defendant after its escape. For example, if the poisonous plants growing on the defendant’s land escapes and enters the plaintiff’s land and is then eaten up by the cattle on the plaintiff’s land, the defendant is liable for the damages caused to the cattle of the plaintiff. On the other hand, if the plaintiff’s cattle themselves enter the land of the defendant and eat the poisonous plants and die, the defendant will not be liable since there was no escape of his property. The case of Read v Lyons & co. shows that the defendant is not liable if there is no escape. In this case, the plaintiff, Read was an employee in the defendant’s ammunition factory. While she was working in the premises of the defendant, a shell exploded and the plaintiff was severely injured. The defendant could not be held negligent since there was no negligence on his part. Even the rule of Rylands vs. Fletcher didn’t apply here since the dangerous thing, the shell, had not escaped from the premises of the defendant. Thus, Lyons & co. was not held liable whereas in the case of Rylands vs. Fletcher, the dangerous thing, the water had escaped from the defendant’s premises. In the case of Ponting vs. Noakes, the claimant’s horse died after it had reached over the defendant’s fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant’s land and there had therefore been no escape.
Non-Natural Use Of Land
In the landmark case, the water collected constituted the non-natural use of land. Keeping water for domestic purposes is natural use but keeping water for use in the mill is non-natural use of land. For the use to be non-natural, it must be some special use bringing with it increased danger to others, and must not merely by the ordinary use of land or such a use as is proper for the general benefit of community.[iv] Electric wiring in the house, electric wiring in the shops, supply of gas in gas pipes in a dwelling house and water installation in a house are other examples of the natural use of land. In the case of Sochacki vs. Sas, the defendant was a lodger in the claimant’s house. He lit an open fire in his room and then went out. Unfortunately a spark jumped from the fire and set the room alight. The fire spread to the rest of the house and the claimant brought an action against the defendant based on liability arising under Rylands v Fletcher. It was held that the defendant was not liable. Whilst the fire was likely to do mischief if it escaped, the use of an open fire in the claimant’s fireplace was not considered a non-natural use of land.[v] This case clearly explains the conditions when the use of the land by the defendant can be described as non-natural use and when not.
Negligence
Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. There are four steps in proving negligence. The plaintiff must prove:
- That there is a duty in the circumstances to take care duty of care
- that the behaviour or inaction of the defendant in the circumstances did not meet the standard of care which a reasonable person would meet in the circumstances (breach of duty)
- that the plaintiff has suffered injury or loss which a reasonable person in the circumstances could have been expected to foresee (damage)
- that the damage was caused by the breach of duty (causation).
The standard of care for a health professional is that expected of the reasonably competent practitioner of that profession. The actions of the health professional will be compared with the standard. The court, not the professional, sets the standard, so even if a particular practice is common or accepted by other practitioners, it may still be negligent. Negligence can occur in any aspect of professional practice, whether history taking, advice, examination, testing or failing to test, reporting and acting on results of tests, or treatment. The standard is one of reasonable care, not of perfection. The court will decide having regard to all the circumstances whether the health professional has been negligent. Negligence is different from mistake or error of judgment. The fact that a risk of treatment eventuated, or that a desired medical outcome was not achieved, does not necessarily establish negligence.
A practical effect of this test is that if a person chooses to have (or through an emergency, is forced to have) a general practitioner perform surgery or administer general anaesthetic, then the person cannot expect the degree of skill of a specialist surgeon or anaesthetist. However, if the general practitioner holds himself or herself out as having special skill in surgery or anaesthetics, then the patient may be entitled to expect specialist skill.
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