Strict Liability
| Author | Philip H. Osborne |
| Profession | Faculty of Law. The University of Manitoba |
| Pages | 324-358 |
CHAP TER 5
STRICT LIABILITY
A. INTRODUC TION
The distinguishing feature of the strict liability torts i s that there is
no need to prove that the defendant was guilty of any w rongful (in-
tentional or negligent) conduct. In the absence of defences, proof that
the defendant caused the pla intiff ’s loss in the manner prescribed is
sufficient to impose liabilit y. Strict liability does not play a signi ficant
formal role in modern Canadian tort law. Historically, the evolution of
the common law of torts has b een from strict liabil ity to fault liability.
Consequently, the remaining area s of strict liability tend to be ancient
and few in number. Moreover, those torts of str ict liability that do sur-
vive were ero ded in the course of the twentieth century by the relent-
less 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 vicar ious liability even though it is not a discrete tort. It imposes
a strict liabilit y for the torts of others with whom the defendant has a
partic ular rel ationship.
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 str ict liability torts h as been matched by a ris e in a de facto
strict liability under the guise of st rict standard s of care within the tort
of negligence. This is particula rly evident in the fields of motor-vehicle
324
Strict Liability 325
accidents, product accidents, and accidents ar ising from dangerous ac-
tivities. This is not entirely surprising because strict liability continues
to have some functional attraction in modern tort law. It can optimize
both the deterrent and the compensatory i mpact of tort law by demand-
ing exceptional care and expanding 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 t he full losses
generated by a particular activity or enterprise (such as manufactur-
ing, railroad or air tran sportation, or nuclear power operations) to that
activity or enterprise. An enterprise liability facilitates the distribution
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 theor-
etically and to utili ze it openly as a general basis for the allocat ion of
modern accident los ses. Can adian judges are much more comfortable
utilizing the discretion embodied in the standard of reasonable care in
the tort of negligence to impose a strict st andard of care where appro-
priate rather than changing the theoretical fr amework of tort law.
There is, therefore, a paradox in the Canadian l aw of torts in re-
spect of strict liabil ity. On the one hand, the courts h ave shown no will-
ingness either to ex pand existing heads 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 gui se
of applying t raditional negligence pr inciples.1
B. THE RULE IN
RYL ANDS . FLETCHER
The litigation in Rylands v. Fletcher2 gave rise to the most signific ant
rule of strict liability in tort law. The case dealt with an earthen 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-
1 One possible ex planation of this phenomenon i s that the tradition al strict li-One possible ex planation of this phenomenon i s that the tradition al strict li-
ability torts do not appl y strict liability to the act ivities and circumst ances that
Canadia n judges believe most deserve it, suc h as products liability, motor-ve-
hicle 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 TORTS326
ors, however, were not sued and, because they were not employees of
the defendant, he was not vicariously liable for their negligence.3 The
plaintiff ’s claim, therefore, depended on the recognition of a str ict lia-
bility for the escape of water. Although the courts at this time were in-
creasingly attracted to fault as the basis of tort liabilit y, the Exchequer
Chamber, in a unanimous judgment delivered by Bl ackburn J., imposed
a strict liabilit y on the defendant. The Court may have been influenced
by a number of reservoir failures i n 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, cattle trespass, and
some early nuisance case s to fashion a general principle of strict li abil-
ity. He stated:
We think that the t rue rule of law is, that the pe rson who for his own
purposes br ings on his land s, and collects and keeps t here anything
likely to do mischief if it escapes, must keep it in at his peril, and, if he
does not do so, is prim a facie answerable for al l the damage whic h is
the natural con sequence of its escape. He can excu se himself by shew-
ing that the e scape was owing to the pla intiff’s default; or pe rhaps that
the escape wa s the consequence of vis major, or the act of God.5
The House of Lords dismissed t he defendant’s appeal but, in the course
of his judgment, Lord Cair ns 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 str ict 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, a s 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 liabilit y and the emerging tort of
negligence. The rule in Rylands v. Fletcher, in f act, proved to be no match
for the burgeoning tort of negligence and, in the twentieth century, it
was progressively rest ricted both by a modification of its essential ele-
ments of liability and by a proliferation of defences. It now operates
3 No claim was av ailable in trespas s to land because the intr usion was indirect,
and private nuis ance was not available, at that t ime, because there was a n iso-
lated escape of water.
4 A.W.B. Simpson, “Legal L iability for Bursting Rese rvoirs: The Historical Contex t
of Rylands v. Fletcher” (1984) 13 J. Legal Stud. 209.
5Rylands, above note 2 at 279– 80.
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