Strict Liability

• Author: Philip H. Osborne
• Pages: 308-341

308

A. Introduction

The distinguishing feature of the strict liability torts is that there is no

need to prove that the defendant was guilty of any wrongful (intention-

al or negligent) conduct. In the absence of defences, proof that the

defendant caused the plaintiff’s loss in the manner prescribed is suffi-

cient to impose liability. Strict liability does not play a significant for-

mal role in modern Canadian tort law. Historically, the evolution of the

common law of torts has been from strict liability to fault liability. Con-

sequently, the remaining areas of strict liability tend to be ancient and

few in number. Moreover, those torts of strict liability that do survive

were eroded in the course of the twentieth century by the relentless

expansion of the tort of negligence.

The torts of strict liability include the rule in Rylands v. Fletcher,

liability for fire, the scienter action for damage caused by dangerous

animals, and cattle trespass. It is also conventional to include in this

list vicarious liability even though it is not a discrete tort. It imposes a

strict liability for the torts of others with whom the defendant has a

particular relationship.

These few remnants of true strict liability do not, however, tell the

full story of strict liability in Canadian tort law. The formal decline of

the discrete strict liability torts has been matched by a rise in a de facto

strict liability under the guise of strict standards of care within the tort

of negligence. This is particularly evident in the fields of motor-vehicle

Strict Liability

chapter 5

accidents, product accidents, and accidents arising from dangerous

activities. This is not entirely surprising because strict liability contin-

ues to have some functional attraction in modern tort law. It can opti-

mize both the deterrent and the compensatory impact of tort law by

demanding exceptional care and expanding the range of persons who

receive compensation. It can improve the administrative efficiency of

tort law by eliminating the often difficult task of determining fault. It

can also be used to create an enterprise liability, which allocates the full

losses generated by a particular activity or enterprise (such as manu-

facturing, railroad or air transportation, or nuclear power operations)

to that activity or enterprise. An enterprise liability facilitates the dis-

tribution of losses and may achieve some market deterrence.

Canadian judges are not immune to these ideas. They have not,

however, been willing to embrace strict liability formally or theoretical-

ly and to utilize it openly as a general basis for the allocation of mod-

ern accident losses. Canadian judges are much more comfortable

utilizing the discretion embodied in the standard of reasonable care in

the tort of negligence to impose a strict standard of care where appro-

priate rather than changing the theoretical framework of tort law.

There is, therefore, a paradox in the Canadian law of torts in

respect of strict liability. On the one hand, the courts have shown no

willingness either to expand existing heads of strict liability or to cre-

ate new heads of strict liability. On the other hand, there is a willing-

ness, in certain situations, to impose a covert strict liability under the

guise of applying traditional negligence principles.1

B. The Rule in

Rylands

V.

Fletcher

The litigation in Rylands v. Fletcher2gave rise to the most significant

rule of strict liability in tort law. The case dealt with an earthen water

reservoir that failed and flooded the plaintiff’s coal mine. The reservoir

had been built by contractors on land occupied by the defendant. The

contractors were negligent. They built the reservoir over disused mine

shafts that led to the plaintiff’s mining operation. The contractors,

Strict Liability 309

1 One possible explanation of this phenomenon is that the traditional strict liabili-

ty torts do not apply strict liability to the activities and circumstances that Cana-

dian judges believe most deserve it, such as products liability, motor-vehicle

accidents, and ultra-hazardous activities.

2 (1868), L.R. 3 H.L. 330, aff’g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex.

265 (Ex. Ch.) [Rylands].

however, were not sued and, because they were not employees of the

defendant, he was not vicariously liable for their negligence.3The

plaintiff’s claim, therefore, depended on the recognition of a strict lia-

bility for the escape of water. Although the courts at this time were

increasingly attracted to fault as the basis of tort liability, the Exchequer

Chamber, in a unanimous judgment delivered by Blackburn J.,

imposed a strict liability on the defendant. The Court may have been

influenced by a number of reservoir failures in England a few years ear-

lier which caused a significant loss of life and property,4but Blackburn

J., typically, made no reference to those events. He drew on the ancient

strict liability for damage caused by dangerous animals, cattle trespass,

and some early nuisance cases to fashion a general principle of strict

liability. He stated:

We think that the true rule of law is, that the person who for his own

purposes brings on his lands, and collects and keeps there anything

likely to do mischief if it escapes, must keep it in at his peril, and, if

he does not do so, is prima facie answerable for all the damage which

is the natural consequence of its escape. He can excuse himself by

shewing that the escape was owing to the plaintiff’s default; or perhaps

that the escape was the consequence of vis major, or the act of God.5

The House of Lords dismissed the defendant’s appeal but, in the course

of his judgment, Lord Cairns introduced the concept of a non-natural

use of land. He emphasized that no liability could be imposed for the

natural run-off of water from higher land to the lower land. In Rylands,

however, the defendant had collected water artificially and a strict lia-

bility was appropriate for this non-natural use of land. This concept of

non-natural use has played a central role in the evolution of the tort.

The rule in Rylands v. Fletcher, as originally formulated, was a strict

liability tort of considerable scope and it was applicable to a wide range

of land use. It was inevitable, therefore, that there would be some ten-

sion between this special rule of strict liability and the emerging tort of

negligence. The rule in Rylands v. Fletcher, in fact, proved to be no

match for the burgeoning tort of negligence and, in the twentieth cen-

tury, it was progressively restricted both by a modification of its essen-

310 The Law of Torts

3 No claim was available in trespass to land because the intrusion was indirect,

and private nuisance was not available, at that time, because there was an isolat-

ed escape of water.

4 A.W.B. Simpson, “Legal Liability for Bursting Reservoirs: The Historical Context

of Rylands v. Fletcher” (1984) 13 J. Legal Stud. 209.

5Rylands, above note 2 at 279–80.