Strict Liability

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 358-395

358

CHA PTER 5

STRICT LIABILITY

A. INTRODUC TION

The distinguishi ng feature of the strict liability torts is that there is

no need to prove that the defendant was guilty of any wrongful (in-

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

the defendant caused the plai ntiff’s loss in the m anner prescribed is

suff‌icient to impose liability. Strict liability does not play a signif‌icant

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

the common law of torts has been from strict liability to fault liabil ity.

Consequently, the remaining area s of strict liability tend to be ancient

and few in number. Moreover, those torts of strict liability that do sur-

vive were eroded in the course of the twentieth century by the relent-

less expansion of the tort of negligence.

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

liability for f‌ire, the scienter action for damage caus ed by dangerous

animals, and c attle trespass. It is al so conventional to include in this

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

a strict liability for the tort s of others with whom the defendant has a

partic ular relat ionship.

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

full story of strict li ability in Canadia n 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 stand ards of care within the tort

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

Strict Liabil ity 359

accidents, product accidents, and accidents arising from dangerous ac-

tivities. This is not entirely surprising because strict liability conti nues

to have some functional attraction in moder n tort law. It can optimize

both the deterrent and the compensator y impact of tort law by demand-

ing exceptional care and ex panding the range of persons who receive

compensation. It can improve the admini strative eff‌iciency of tort law

by eliminating the often diff‌icult task of determining fault. It can also

be used to create an enterpr ise liability, which allocates the full losses

generated by a particular act ivity or enterprise (such as manufactur-

ing, railroad or air transportation, or nuclear power operations) to that

activity or enterpri se. An enterprise liability facilit ates the distr ibution

of losses and may achieve some market deterrence.

Canadian judges are not im mune to these ideas. They have not,

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

ly and to utilize it openly as a genera l basis for the allocation of modern

accident losses. Canadian judges are much more comfortable utiliz-

ing the discretion embod ied in the standard of reasonable care in the

tort of negligence to impose a strict standard of care where appropriate

rather than cha nging the theoretical fra mework of tort law.

There is, therefore, a paradox in the Canadia n law of torts in re-

spect of strict liabilit y. On the one hand, the courts have shown no wi ll-

ingness either to ex pand existing head s of strict liability or to create

new heads of strict liability. On the other hand, there is a willingness,

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

of applying traditional negligence principles.1

B. THE RULE IN

RYL ANDS V. FLETCHER

The litigation in Rylands v. Fletcher2 gave rise to the most signif‌icant

rule of strict liabilit y in tort law. The case dealt with an eart hen water

reservoir that fa iled and f‌looded the plaintiff ’s coal mine. The reser-

voir 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 contract-

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

1 One possible ex planation of this phenomenon i s that the traditiona l strict liability

torts do not apply str ict liability to the activ ities and circumst ances that Canad ian

judges believe most de serve it, such as products l iability, 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].

THE LAW OF TORTS360

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

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

bility for the escape of water. Although the courts at th is time were in-

creasingly attracted to f ault as the basis of tort liabilit y, the Exchequer

Chamber, in a unanimous judgment delivered by Bl ackburn J., imposed

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

by a number of reservoir failure s in England a few years earlier which

caused a signif‌icant loss of life and property,4 but Blackburn J., typ-

ically, made no reference to those events. He drew on the ancient strict

liability for damage caused by dangerous animals, c attle trespass, and

some early nuisance case s to fashion a general principle of strict liabil-

ity. He stated:

We think that the t rue rule of law is, that the per son who for his own

purposes br ings on his land s, and collects and keeps there a nything

likely to do misch ief if it escapes, must keep it i n at his peril, and, i f

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

is the natura l consequence of its escap e. He can excuse him self by

shewing that t he escape was owi ng to the plaintiff ’s default; or per-

haps that the e scape was the conse quence 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 Cairn s introduced the concept of a non-natural

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

nat ural run-off of water from higher land to the lower land. In Ryla nds,

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

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

non-natural use has played a cent ral 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 speci al 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 centur y, it

was progressively restr icted both by a modif‌ication of its essential ele-

ments of liability and by a proliferation of defences. It now operates

3 No claim was avai lable in trespass to la nd because the intru sion was indirect,

and private nuis ance was not available at that t ime because there was an i so-

lated esc ape of water.

4 A.W.B. Simpson, “Legal L iability for Bursting Re servoirs: The Historical C ontext

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

5 Rylands , above note 2 at 279–80.